Much of the LA Times' editorial section is devoted today to the question of whether universities discriminate against conservatives. I've argued in the past that there is such discrimination, although much of it is a question of critical mass and network effects rather than intentional discrimination.
Yet, I am reminded of a question Joe Biden put to Samuel Alito during the recent SCOTUS nomination hearings:
... discrimination has become very sophisticated. It's become very, very sophisticated, very much more subtle than it was when I got here 34 years ago or 50 years ago. ... I mean, there's all different ways in which now it's become so much more subtle. And that's why we all, Democrat and Republican, wrote Title VII. ... What we observed in the real world is it's real subtle. And yet it's harder to make a case of discrimination even though there's no doubt that it still exists.
The concept of disparate impact has become one of the chief tools courts use to address such discrimination. The Supreme Court set out the basic principle in Griggs v. Duke Power Co., 401 U.S. 424, 431-32 (1971), holding that Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. . . . [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability."
To invoke disparate impact, the plaintiff must prove, generally through statistical comparisons, that the challenged practice or selection device has a substantial adverse impact on a protected group.
With that background in mind, consider these data from the Times:
Academics who identified themselves as left or liberal
in 1984: 39%
in 1999: 72%
Academics who identified themselves as right or conservative
in 1984: 34%
in 1999: 15%
Among faculties in 1999, Democrats outnumbered Republicans 5 to 1
The Democratic advantage by department in 1999 English: 35 to 1 History: 17.5 to 1 Biology: 4 to 1 Engineering: 3 to 1 Computer science: 2 to 1 Chemistry: 1.5 to 1 But in agriculture, Republicans held a 1.3-1 edge.
In 2004, employees of the University of California and Harvard University were John Kerry's largest dollar contributors and among Howard Dean's top five.
I'd say that makes out a prima facie case that university hiring practices are having a disparate impact. The burden of proof is therefore on the university to show why this disparity exists.
Spare me tired arguments like "liberals have a social conscience," "conservatives only care about money," and such nonsense. I've heard it before ... and rebutted it before.
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