Does Texas Hiring Run Afoul of Ricci?

Last November the University of Texas at Austin issued an alarmed Gender Equity Task Force report indicating that, as the university stated in a press release, “on average, a lower percentage of tenured and tenure track faculty are women than at other schools.” In fact, the percentage of women at UT-Austin wasn’t that much lower than the national average at doctoral-level universities. At UT-Austin, 25 percent of tenured professors and 39 percent of tenure-track professors are female, compared with 26 and 41 percent respectively nationwide.
Still, the percentage disparity was enough for UT-Austin, especially its College of Liberal Arts that houses the humanities, to embark on a frenzy of hiring that specifically targeted women academics, including women who were already full professors at other universities. Of 117 new faculty members who will be joining UT-Austin this fall, 42 percent are women, and at the College of Liberal Arts 46 percent of the new hires are female, including six new full professors recruited from such prestigious institutions as Harvard, the University of California at Berkeley, and the University of Southern California. The idea with all the hiring of senior female faculty was to eliminate “gender inequity” on the UT-Austin faculty in one fell swoop (in contrast to the usual method of hiring young academics and promoting them). As UT-Austin boasted in its press release, the new hires “represent one of the university’s biggest successes to date in closing the gender gap.”
The bait that UT-Austin used to lure this influx of female faculty to its campus was that reliable standby, money, either in the form of high-dollar offers or even higher-dollar counter-offers after the professors’ existing employers offered to match. Here is how Inside Higher Education described UT-Austin’s hiring of Jennifer Johnson-Hanks, an anthropology professor at UC-Berkeley just hired by UT-Austin (along with her husband, William, as an apparent deal-sweetener):

Johnson-Hanks…said that she had great students and colleagues at Berkeley, and wasn’t so much looking as ‘willing to listen’ when she and her husband were approached. On the whole, she said she was drawn by ‘an intellectual vision for where the university was going,’ and she said that the prime factor in moving was related to scholarship and the sense of vitality she found.
But to the extent money was a role, UT held the upper hand (and the decision was made prior to the most recent round of cuts at the University of California). She said Texas offered more money, and that while Berkeley matched the offer, other financial factors favored Texas. ‘We could buy a gorgeous house for what we got selling a tiny house in California,” she said. ‘We will be living where there are great public schools, but in California, we couldn’t afford a home in the areas with great public schools.'”

Here’s another example of UT-Austin’s gender-hiring strategy at work (also from Inside Higher Ed):

‘What they did is very unusual, because there are more issues with recruiting full professors, who have more complicated lives and who may be very happy where they are,’ said Philippa Levine, a British historian who will be moving to Austin from the University of Southern California. Levine said she wasn’t looking to move, but was swayed by the ‘dynamism’ she found at Texas. And at a time when public universities are complaining that they can’t outbid private universities in putting together packages, Texas did so.
‘Texas ‘absolutely’ offered her more. ‘It’s an entirely appropriate and extremely generous package,’ she said.

The only problem with this happy narrative—aside from the burden on Texas taxpayers who must pay for UT-Austin’s adventure in gender-equity self-congratulation—is that there’s a good chance that the university’s female-preference hiring policies violated the Supreme Court’s recent interpretation of federal civil rights law in Ricci v. DeStefano. That was the case brought by white and Hispanic firefighters in New Haven, Conn., after the city threw out the results of a promotion examination because too many whites and not enough blacks scored high enough on it.
Roger Clegg, general counsel of the Center for Equal Opportunity, in a July article for the Pope Center’s website Clarion Call, pointed out that the Ricci ruling is likely to have legal implications for faculty hiring practices that openly choose women over qualified men. The city of New Haven had argued that its promotion test had a “disparate impact” on blacks, who could have sued the city under Title VII of the 1964 Civil Rights Act, which forbids racial and gender discrimination in employment, had New Haven accepted the test’s results (even though the test itself had passed muster with an anti-discrimination panel). The Supreme Court, in a Title VII suit brought by high-scoring white firefighters who had been denied promotions, ruled that a mere possibility of a lawsuit wasn’t enough grounds to throw out the test, and that an employer had to offer strong evidence that it would actually lose the suit—evidence that was lacking in the Ricci case because care had been taken to construct a racially neutral test.
Clegg wrote that the Ricci ruling was highly pertinent to what he said was a common practice among colleges of rejecting “finalist pools for faculty positions because they lack candidates from certain racial or ethnic groups.”
“Colleges and universities sometimes conduct a search to fill a faculty opening but then decline to hire anyone from the pool of finalist candidates because the school really wanted to hire someone from an ‘underrepresented’ group, none of whose members made the cut,” Clegg wrote.
The UT-Austin situation is a kind of converse of Ricci, in which the university, fortified with taxpayer money, essentially created a female-only pool of applicants for many faculty positions. One wonders what civil rights activists might think if UT-Austin had decided to actively recruit only men—or perhaps only whites–to fill open faculty positions, using unusually fat salary packages and other perks to assure that targeted men—or targeted whites—would accept the jobs.
One fascinating aspect of the UT-Austin gender drive has been the reaction by female academics in the comments section of the Inside Higher Ed story. Several comment-writers suggested an underlying truth to the stereotype that women in academia tend to be man-loathing radical feminists. Here’s an example:

Dudes, when the percentages start tipping the other way, when women aren’t overwhelmingly doing your scut work as lecturers and junior faculty in revolving-door positions, when women in all positions aren’t, as at UT Austin, overwhelmingly and outrageously underpaid, then your scrota will have cause to draw up in panic. Not now. Not for a long, long time to come. Have a beer, take in the game, and get over yourselves.

Again, what if a man in academia had decided to respond to an argument by hurling vulgar and dismissive insults at women?