Affirmative Action in hiring:
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by C'Lee Long,
Wisdom Woman |
Affirmative Action in Hiring: Harvard Under Fire
Harvard is facing a commissioner charge by the Equal Employment Opportunity Commission (EEOC) for violating anti-discrimination law (Pettit, 2025). An annual report on faculty development and diversity revealed a decline in white male professors over the past decade, which led to the EEOC’s investigation (Pettit, 2025). The decline in white male faculty has been mirrored by a rise in women faculty and faculty of color. The EEOC has spoken out against discriminatory hiring practices at Harvard. The EEOC contends these practices are in direct violation of Title VII (Pettit, 2025). Alan M. Garber, the university’s president, denied the EEOC’s claims. Garber addressed the charges in a letter, stating that Harvard’s hiring practices are based solely on merit and achievement (Pettit, 2025). He further stated that the university does not have quotas – a practice previously denounced by the courts. (Pettit, 2025). Harvard has faced scrutiny over the past few months due to its administration’s refusal to comply with presidential demands. The decision has cost them billions of dollars in federal funding (Pettit, 2025). However, the university has refused to back down and has challenged the funding freeze in court (Pettit, 2025). Damani White-Lewis, an assistant professor of higher education at the University of Pennsylvania, believes that the decline in white male professors has little to do with hiring practices and more to do with the growing pool of capable women and people of color (Pettit, 2025). Whether Harvard has violated Title VII will be left to the courts to decide; however, the impact of the decision will have lasting consequences for all higher education.
In Students for Fair Admissions, Inc. v. Presidents and Fellows of Harvard College and in Students for Fair Admissions, Inc. v. University of North Carolina, the US Supreme Court ruled that affirmative action in admissions was unconstitutional under Title VI of the Civil Rights Act of 1964 and the Fourteenth Amendment’s Equal Protection Clause (Kaplin et al., 2024). Affirmative action in employment was not addressed in either of these cases; however, the reasoning behind the court’s decision could be applied to employment and hiring practices. While most employment discrimination cases, particularly those dealing with affirmative action, are brought under Title VII, institutions should review their employment and hiring practices for compliance with Title VI and the Fourteenth Amendment. Furthermore, they should be prepared to prove that the affirmative action plan, such as it may be, is designed to mitigate the effects of previous discrimination (Kaplin et al., 2024). Unfortunately, this is a difficult task for institutions to undertake. Previous decisions by the courts have established a three-part test that institutions can use to determine whether an affirmative action plan is permissible. The Weber test, implemented by the courts in Steelworkers v. Weber, has been a standard test applied to affirmative action cases. The test requires that an affirmative action plan meet three criteria: there must be a manifest racial imbalance, there must be a history of rampant racial segregation, and the plan must be utilized only to the point where racial imbalance has been mitigated (Kaplin et al., 2024). Further, no racial or gender quota is permissible as part of an affirmative action plan.
Returning to the EEOC’s charge against Harvard, it is possible that the courts will use the Weber test to decide whether Harvard has violated Title VII. If they do, then Harvard will have to meet the three criteria laid out in the Weber test. It is interesting, however, that Harvard has maintained that its employment and hiring practices are based “solely on merit” (Pettit, 2025). Essentially, Harvard has denied the use of an affirmative action plan at all. Still, even without an affirmative action plan, the court could rule against Harvard under the Fourteenth Amendment’s Equal Protection clause. The Equal Protection Clause requires intent, however, which can benefit the institution. A hiring practice that has a “disproportionate impact on a particular group” will not violate the Equal Protection Clause unless “the plaintiff can show that it was enacted in order to affect that group adversely” (Kaplin et al., 2024, p. 210). Insofar as Harvard’s hiring practices are permissible under Title VII, they will likely be found not to violate the Equal Protection Clause. As White-Lewis stated, the impact may be a consequence of a broader applicant pool. Harvard would be able to maintain that disparate impact was unintentional and not in violation of the Equal Protection Clause (Pettit, 2025). The determining factor will be how the court chooses to view the case: as a violation of Title VII or as a violation of the Fourteenth Amendment.
It is increasingly apparent that previous court decisions are at risk of being invalidated by newer cases. What was once a given is now hanging in the balance. Higher education administrators must follow these and other cases carefully to ensure compliance. However, they must also continue to push forward. Higher education as an institution has seen many ups and downs, and it will almost certainly see many more. Colleges and universities, whether public or private, are united in their mission: education. It is necessary that higher education administrators do not lose sight of this mission in the coming months and years.
Harvard is facing a commissioner charge by the Equal Employment Opportunity Commission (EEOC) for violating anti-discrimination law (Pettit, 2025). An annual report on faculty development and diversity revealed a decline in white male professors over the past decade, which led to the EEOC’s investigation (Pettit, 2025). The decline in white male faculty has been mirrored by a rise in women faculty and faculty of color. The EEOC has spoken out against discriminatory hiring practices at Harvard. The EEOC contends these practices are in direct violation of Title VII (Pettit, 2025). Alan M. Garber, the university’s president, denied the EEOC’s claims. Garber addressed the charges in a letter, stating that Harvard’s hiring practices are based solely on merit and achievement (Pettit, 2025). He further stated that the university does not have quotas – a practice previously denounced by the courts. (Pettit, 2025). Harvard has faced scrutiny over the past few months due to its administration’s refusal to comply with presidential demands. The decision has cost them billions of dollars in federal funding (Pettit, 2025). However, the university has refused to back down and has challenged the funding freeze in court (Pettit, 2025). Damani White-Lewis, an assistant professor of higher education at the University of Pennsylvania, believes that the decline in white male professors has little to do with hiring practices and more to do with the growing pool of capable women and people of color (Pettit, 2025). Whether Harvard has violated Title VII will be left to the courts to decide; however, the impact of the decision will have lasting consequences for all higher education.
In Students for Fair Admissions, Inc. v. Presidents and Fellows of Harvard College and in Students for Fair Admissions, Inc. v. University of North Carolina, the US Supreme Court ruled that affirmative action in admissions was unconstitutional under Title VI of the Civil Rights Act of 1964 and the Fourteenth Amendment’s Equal Protection Clause (Kaplin et al., 2024). Affirmative action in employment was not addressed in either of these cases; however, the reasoning behind the court’s decision could be applied to employment and hiring practices. While most employment discrimination cases, particularly those dealing with affirmative action, are brought under Title VII, institutions should review their employment and hiring practices for compliance with Title VI and the Fourteenth Amendment. Furthermore, they should be prepared to prove that the affirmative action plan, such as it may be, is designed to mitigate the effects of previous discrimination (Kaplin et al., 2024). Unfortunately, this is a difficult task for institutions to undertake. Previous decisions by the courts have established a three-part test that institutions can use to determine whether an affirmative action plan is permissible. The Weber test, implemented by the courts in Steelworkers v. Weber, has been a standard test applied to affirmative action cases. The test requires that an affirmative action plan meet three criteria: there must be a manifest racial imbalance, there must be a history of rampant racial segregation, and the plan must be utilized only to the point where racial imbalance has been mitigated (Kaplin et al., 2024). Further, no racial or gender quota is permissible as part of an affirmative action plan.
Returning to the EEOC’s charge against Harvard, it is possible that the courts will use the Weber test to decide whether Harvard has violated Title VII. If they do, then Harvard will have to meet the three criteria laid out in the Weber test. It is interesting, however, that Harvard has maintained that its employment and hiring practices are based “solely on merit” (Pettit, 2025). Essentially, Harvard has denied the use of an affirmative action plan at all. Still, even without an affirmative action plan, the court could rule against Harvard under the Fourteenth Amendment’s Equal Protection clause. The Equal Protection Clause requires intent, however, which can benefit the institution. A hiring practice that has a “disproportionate impact on a particular group” will not violate the Equal Protection Clause unless “the plaintiff can show that it was enacted in order to affect that group adversely” (Kaplin et al., 2024, p. 210). Insofar as Harvard’s hiring practices are permissible under Title VII, they will likely be found not to violate the Equal Protection Clause. As White-Lewis stated, the impact may be a consequence of a broader applicant pool. Harvard would be able to maintain that disparate impact was unintentional and not in violation of the Equal Protection Clause (Pettit, 2025). The determining factor will be how the court chooses to view the case: as a violation of Title VII or as a violation of the Fourteenth Amendment.
It is increasingly apparent that previous court decisions are at risk of being invalidated by newer cases. What was once a given is now hanging in the balance. Higher education administrators must follow these and other cases carefully to ensure compliance. However, they must also continue to push forward. Higher education as an institution has seen many ups and downs, and it will almost certainly see many more. Colleges and universities, whether public or private, are united in their mission: education. It is necessary that higher education administrators do not lose sight of this mission in the coming months and years.
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