National Science Foundation JAM11 Conference

Legal Strategies to Increase Participation of Women and OtherUnderserved Groups in STEM

Daryl E. Chubin, Ph.D. Jamie Lewis Keith, Esq.Director, AAAS Capacity Center Vice President and General Counsel

Amer. Ass’n for Advance. of Science University of Florida

dchubin@aaas.org jlkeith@ufl.edu

June 7, 2011

Problem Thread of Capacity Center Work

• Who participates in STEM education & the workforce—who does not and why?

• How can institutions of higher education improve academic success, career advancement, and utilization of talent—students to faculty and other professionals?

• How does Federal policy help/hinder?

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Origins: Operate on the Context, not just the Content

2004: To help guide program staff & university counsels in interpreting the Grutter and Gratz Supreme Court rulings . . .

2008: Sloan- and NSF-funded project (AAAS-AAU) to identify effective STEM programs & practices for students & faculty that are also legally sustainable

See http://www.aaas.org/publications/books_reports/standingourground/

AAAS-AAU Law & Diversity Project Objectives:

• Identify And Foster Common Understanding Of Effective Diversity/Access Programs That Are Also Legally Sustainable—STEM Focus, But Broadly Applicable

• Build Productive Partnerships Of Academic Policy/Program And Legal Leaders To Design And Implement Diversity/Access Programs

• Support Measurable Progress Within 5-6 Years

• Provide Practical Tools, through Workshops & Publication of Handbook, For Policymakers and Lawyers

Sponsors:

• Phase 1: Alfred P. Sloan Foundation & NSF (Aug. 2008-Sept. 2010)

• Phase 2: NSF (Oct. 2010-Dec. 2011)

Leadership:

Dr. Daryl Chubin (AAAS) & Jamie Lewis Keith, Esq., (University of Florida), Project Directors

Dr. Shirley Malcom (AAAS), Senior Project Advisor

Dr. John Vaughn, AAU Liaison

Art Coleman/Scott Palmer (EducationCounsel LLC) and Bob Burgoyne/Prof. Ted Shaw (Fulbright & Jaworski LLP) Project Outside Counsel, Phase 1

Art Coleman, Project Outside Counsel with Burgoyne/Shaw as Advisory Board Chairs

Participation of College Board, ACE, NACUA, AAMC, AACC, APLU, Thurgood Marshall Fund, & IHEP, Phase 2

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AAAS-AAU Diversity And Law Project

• Handbook on Diversity and the Law: Navigating a Complex Landscape to Foster Greater Faculty and Student Diversity in Higher Education, available at: http://php.aaas.org/programs/centers/capacity/publications/complexlandscape/PDFs/LawDiversityBook.pdf

• Handbook Summary and Highlights, available at: http://php.aaas.org/programs/centers/capacity/documents/LawDiversity_SUMMARY.pdf

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U.S. Has A “Pipeline” Problem

Need: Increase Educational And Workforce Access/Diversity for

Women and Underserved Minorities—An Apolitical Imperative

Data: U.S. Trails 26 Other Developed Countries In The Proportion Of College

Students Graduating In STEM Fields

Women (50% of U.S. College-Age Population) & Underserved Minorities (ca. 40% of College-Age Population) Are Highly Underrepresented In STEM Higher Education/Degrees & STEM Workforce (incl. Academia)

Women, URM, Disabled = ca. 25% STEM Workforce v. 66% Total Workforce

The U.S. Is Losing Vast, Needed Intellectual Capacity To Compete In The Global Economy, Sustain Its Innovation Leadership, and Ensure Its National Security. We are under-educating and/or under-utilizing citizen talent.

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Part-time employment rates of scientists and engineers: 2006

Source: Women, Minorities, and Persons with Disabilities in Science and Engineering: 2011www.nsf.gov/statistics/wmpd/

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• Lack networks, feel isolated and disempowered• Face “affirmative action backlash”• Caught between unrealistic wishfulness and expansive ambition • See mentors as rescuers (“Cinderella complex”)• Recognize that mentors are not just a helping hand up the career

ladder, but can create career pathways• Come to appreciate that serial and multiple mentoring is part of a career

progression strategy

*Source: Bogue, B., Comedy, Y., and Chubin, D. (2010). Prepared for Work, Not the Career: Building Science, Engineering, and Technology Leadership. Report of a PAESMEM/AAAS Workshop for Women in Industry, Academia and Government, Oct. 1-2, 2009, http://stores.lulu.com/sevo

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Women PhDs and Mentoring* (<10 years post-degree)

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• Equal Pay Act of 1963—prohibits sex discrimination in compensation

• Civil Rights Act of 1964—Title VI outlaws race discrimination by federal funding recipients in education and Title VII outlaws discrimination in certain employment by covered employers based on race, sex, religion, and national origin; Department of Education/Office of Civil Rights enforces Title VI--Equal Employment Opportunity Commission enforces Title VII

• Title IX 1972—any educational program receiving federal funds may not discriminate based on sex

• Americans With Disabilities Act of 1990—bars discrimination in education and employment based on disability; bars discrimination by public and private entities in providing programs or services

• Civil Rights Act of 1991—amends and strengthens 1964 civil rights laws; establishes the Glass Ceiling Commission (1991-1996)

Applicable Federal Laws

Different Legal Justifications For Employment And Students: Employment-Remedial• Equal Protection Clause

-- Public Institutions• Title VII (Race, Ethnicity, Gender, Religion)

-- Private (>15 Employees),

Public Employers• OFCCP—Executive Orders (Race,

Ethnicity, Gender, Religion)

-- Federal Contractors • Title VI (Race/Ethnicity)

-- If Purpose Of Federal Funding Is

Employment Or Employment

Confers An Educational Benefit

Title IX (Gender)

-- Titles VI/IX Overlap With Title VII

-- EPC Principles to Privates

Student Programs-Diversity• Equal Protection Clause (EPC)

-- Public Institutions • Title VI (Race)

-- Whole Operation of Federal

Funding Recipient, Including

Employment If It Is The Purpose

Of funding Or Confers An

Educational Benefit

-- EPC Principles To Privates• Title IX (Gender)

-- Whole Operation Of Federal

Funding Recipient, Including

Employment

-- EPC Principles to Privates

-- In Employment, Title VII Substantive Principles Govern When Overlap With Title(s) VI & IX --

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Legal Context For Employment

• Equal Protection, Title VII And OFCCP Regulations Prohibit Racial, Gender, Religious, National Origin Discrimination In Employment

• Limited Exceptions Apply, If “Remedial” Justification Exists—Including An Employer’s Narrowly Tailored Title VII-Voluntary Action—And, For Federal Contractors, OFCCP-Required Action—To

- Remedy “Manifest Imbalance,” “Under-Utilization,” Or The Present Effects Of An Employer’s Own Past Discrimination

- Narrowly Tailored – Without Unnecessarily Trammeling Reasonable Expectations/Interests Of Others

- Title VII Permits Voluntary Action – Must Also Be Narrowly Tailored, Short Duration And Consistent With An Affirmative Action Plan o May Be Prohibited By State Law/Executive Orders (CA, MI, NE, WA, FL)

- OFCCP Requires Plan And Good Faith Action By Federal Contractors—But Not Discrimination In Actual Hiring/Promotion/Lay Off Decisiono Does Not Justify Considering Race/Gender In Hiring, Promotion, Layoff Decision

When Prohibited By State Law Because Not Required by Federal Law

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Legal Context For Employment• Key To Employment Legal Regimes Is Defining “Remedial”/

“Equal Opportunity” Boundaries

• To Consider Race/Ethnicity/Gender, Must Be Remedying Institutional (Not Societal) Discrimination Or “Underutilization”* - Discrimination = 2 Or More Orders Of Magnitude Disparity

- Manifest Imbalance = Court-Recognized, Somewhat Lesser But Still Substantial Disparity Under Title VII

- Underutilization = OFCCP 80% Measure – Possibly Lesser Disparities But Undecided

- Artificially Restricted Qualified Labor Pool = E.G., EEOC Regulations Permit Training/Capacity-Building Programs Where A Trainable Cohort Exists That Could Expand The Qualified Pool In Historically Segregated Fields—May Help With Some Pipeline Problems

- Without Remedial/Equal Opportunity Context, Consideration Of Race, Ethnicity, Gender Are NOT Justified

*Compares representation of women or minorities in employer’s workforce in a discipline and their representation in the available qualified labor pool from which employer could recruit.

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Legal Context—Diversity Rationale

• Diversity Rationale = The Compelling 1st Amendment-Protected Educational Interest Of Institutions Of Higher Education In Broad Student Diversity

• Permits Consideration of Gender or Race As One of Many Factors In Student Programs Under Holistic Individualized Assessment of All Applicants

• While Undecided By The Courts, In The Employment Context, Broad Faculty Or Post-Doc/As Employee Diversity (Modeled On The Compelling Student Diversity Rationale):

• May Bolster Weaker Remedial Justifications (E.g., The Lesser OFCCP Rationales—Those Other Than The Title VII “Manifest Imbalance” or OFCCP 80% Measure)—Or May Be An Independent Justification—In Faculty Or Post-Doc Employment, Consistent With Title VII’s Purpose

• Not As Clearly Applicable To Non-Faculty/Staff Not Directly Involved In Educational Process

• Not Prudent To Rely Exclusively On This Justification In Employment . . . Presently

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Post-Doctoral Fellows: Employees or Students?

• Characterization Matters Because Legal Regimes Are Different• Courts Likely View Post-Doc As Employee Governed by Title

VII/Remedial Parameters When Challenged School Action Relates to Research, Teaching, Activities For Which Post-Doc Receives Funding/Compensation For Services

• Courts Likely View Post-Doc As Student Governed By Title VI/IX Diversity Rationale When Challenged School Action Relates To Academic Deficiencies And Post-Doc Is Student-Like In Administrative Classification, Character Of Funding, Student v. Employee Benefits, Etc.

• Post-Doc May Be Viewed As Part Student/Part Employee

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Post-Doctoral Fellows: Employees or Students?Employee-Like

• Work Is Service to University

• Receives Stipend And Health Benefits For Research/Teaching Services

• Receives Sick Time And Vacation Leave

• Collective Bargaining Agreement Applies

• University Provides Equipment And Training To Do Compensated Work

• Not Registered As A Student In Credit-Bearing Degree or Certificate Program—Already Has Terminal Degree

• IP Rights Governed By Employee Policies, Not Like Student Thesis

• Adverse Action Challenged Concerns: Attendance, Communications, Service Competency Issue – Not Academic Credit/Degree/Certificate-Related Performance

Student-Like

• Work Is For Educational Degree/Certificate Requirements; Service to University Isn’t Required

• Stipends Or Scholarships Received Through Financial Aid Process For Total Program Participation And Need Not Provide Services—Not Wages

• Post-Doc Is Registered As Student And Post-Doc Certificate Or Degree And Credit Earned

• Payments Are Not “Allowable Cost” For Research Under OMB A-21, Which Disallows Tuition And Education Costs On Research Award

• Not Characterized As Employee In University Records—No W-2 Or Withholding

• Accounts Payable—Not Payroll Account—Treatment

• IP Rights Governed By Student Policy, Not Employee Policy

• Manuals, Policies, Award Letters Are Clear

• Adverse Action Challenged Concerns: Academic Credit/Degree/Certificate-Related Performance

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Foundation For Success: Institution’s Educational Mission • Faculty, Student Diversity Efforts—And Enhancing Employment and

Educational Access—Must Be Tied To Educational Mission, Effective, And Legally Sustainable To Be Successful

• Articulate Mission Broadly, Within The Context Of An Increasingly Diverse And Global Society:- Providing The Best Education For All Students, - Producing Excellent Research, - Expanding Educational Access, And - Serving The Nation’s Workforce, Citizenry, And National Security

Needs- Achieving Mission, Requires A Broadly Diverse Campus Community- Diversity Includes Many Aspects of Individuals – Includes, But Is Not

Limited To, Race/Ethnicity/Gender- Validated By The U.S. Supreme Court In Grutter As A Compelling

Educational Interest That Could Justify Appropriate Consideration Of Race In Higher Education Admissions

- Institution-Specific Commitment/Findings And Data Are Helpful

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Importance of Neutral Strategies To Success And Sustainability• Required Use First Under Legal Regimes–Also Best Approach To

Avoid Triggering Legal Exposure While Still Achieving Diversity, Improving Access- Articulate That Broadly Defined Faculty and Student Diversity Are Critical

To Achieving Institution’s Mission of Excellent Education, Excellent Research, Access, and Service to Society—Diversity In Itself Is Not The Objective—The Educational--Including Economic/National Security--Benefit of Diversity For All Students, The State And The Nation Is The Objective

- Focus On Outreach And Removing Barriers To Racial Minorities, Women, Other Under-Served Groups, As Well As Outreach To More Traditional Prospects---Not Representation Of Racial Minorities Or Women In The Applicant/Candidate Pool Per Se--- Before Hiring Or Program Selection Decision-Making

- Focus On Record of “Conduct of Inclusion” And Barrier Removal Of Every Candidate---Not Race And Gender --- In Evaluating Candidates And Making Hiring/Or Program Selection Decisions

• See Search Guidance, Waiver Process, Target of Opportunity Model Policy Tools (AAAS-NSF Funded Project---Materials)

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Removing Barriers: Job or Program Qualifications• Focus On Removing Barriers To Women, Minorities, Others Under-

Served Before Search Begins:

- Pay Attention To Program And Job Descriptions And Articulating Qualifications In An Appropriate And Flexible Manner -- Include Conduct of Inclusion As Factoring Favorably In Holistic Assessment of Many Qualifications Of Each Person

- Consider Carefully Whether A Range Of Background Experience ---Traditional And Nontraditional---Is Possible For Qualified Candidates

- Reject Unnecessarily Restrictive Notions of Qualifications -- Don’t Generalize That Only Limited Programs/Schools Prepare Candidates Adequately

- Analyze Individual Intellectual Capacity, Accomplishments, Promise, And Situations

- Always Apply The Same Criteria To All Candidates, Just Take Care To Articulate Criteria As Flexibly And Broadly As Possible For Highly Qualified Faculty And Students (Do Not Use Race Or Gender As Criterion In Hiring, Promotion, Layoff)

- Don’t Change Criteria For Selection Or Process On The Basis Of Race/Gender Once Started And Applicants/Candidates Are Identifiable

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Outreach Approaches: Jobs and Programs• Focus on Outreach Efforts And Review Adequacy Of Outreach—Not

Diversity Of Applicant Pool/Candidate Interviewee List

- Advertise In Educational Media Or Professional Journals And Usual Places To Attract Any Interested Applicant

- Also Advertise With High Schools Or Societies And In Publications Targeted To Minorities, Women, People With Disabilities

- Make Personal Contacts And Track Prospects Constantly, Including Minorities, Women, Other Under-Served Groups, Then Notify Prospects When Opportunities Arise

• Foster Excellent Outreach—Determine Adequacy of Outreach

- Outreach (Not The Applicant Pool Or Potential Candidate-- Interviewee List) Is Inadequate If More Or Better Outreach Is Available And The Applicant Pool/Possible interviewee List Are Not Broadly Diverse

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Outreach Approaches: Search and Selection Processes

• Make Part Of Process Up Front, Not After Application Process Begins

- Ads And Web Page Note – Applications Will Be Accepted Until A Notice Is Posted That Application Period Is Closed Or Selection Has Been Made

- Outreach Done, Measured, Documented

- Consider Adequacy Of Outreach Before Closing Applicant Pool Or Finalizing Candidate/Interviewee List

- If the Best Outreach Is Done, And The Applicant Pool/Interviewee List Are Still Not Diverse, Outreach Is Adequate, A Serious Pipeline Problem Exists, And The Search Proceeds

- But, Don’t Let Search Committees Off The Hook For Excellent Outreach

- If All Reasonable Outreach Isn’t Exhausted—And Applicant Pool/Possible Interviewee List Are Not Diverse—Direct Search/Selection Committee To Do More Outreach—Both General and Targeted—To Build A More Inclusive Pool (Not To Interview Diverse Candidate)

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Neutral Strategies/Criteria: Conduct of Workplace Inclusion As Criterion

• Seek Faculties And Students – Of Any Race/Gender – With Demonstrated Records Of Including Minorities, Women, Other Under-Served Individuals, And Many Perspectives In Classroom, Research, Mentoring, Other Work Activities

• Mission-Critical Apart From Race/Gender- Provides Experience For Everyone Working In Diverse Settings—

Opportunities To Develop Critical Skills To Succeed In An Increasingly Diverse And Global Society

- Fosters Potential Of Better Issue Identification, Problem-Solving, Research

- Must Sincerely Target All With Record of Inclusion –Not Only Women, Minorities (And Must Equally Require All to Demonstrate Records)

• Conduct—Not Viewpoint – Focused- Regardless Of View Of Race And Gender, Conduct In Class, Research

Activities (Not Topics/View), Mentoring, Other Work Can Be Inclusive

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Neutral Strategies/Criteria: Conduct of Workplace Inclusion

• Race And Gender Neutral—Individual Conduct That Anyone May Possess And Apply—Or Lack.- In A Society Where Race And Gender Affect Life Experiences,

Minorities And Women May Have To Develop Skills To Successfully Collaborate With People Different Than Themselves, But Not All Do.

- Others May Possess Skills And Have Experience Working With And Breaking Down Barriers For Under-Served Individuals.

• Benefits - Will Result In Faculties, Workforce, And Students Who Create A

more Inclusive Campus Community- Has Ancillary Benefit Of Creating More Broadly Diverse Faculties

And Students—Including Minorities And Women- Can Be Used In Most Employment Actions, Any Student Or Faculty

Diversity Program

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Neutral Strategies/Criteria: Conduct of Workplace Inclusion

• Target of Opportunity Approaches (See Model “TOO” Policy and Waiver Form)

- Highlight Qualities, In Addition to Usual, That Particularly Contribute to Mission: E.g., Inclusive Conduct, Top Honors

• Invite Prospects, Including Minorities, Women, Other Under-Served Groups, To Focus Groups Within Overall Visiting, Mentoring, Other Programs

- All Are Served When Aggregated In One Program

- Focus Groups Open To All, But Focus On Women/Minority-Interested Issues

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Neutral Strategies: Socio-Economic/Other Disadvantage Criteria

• Socio-Economic Diversity Is Needed To Achieve The Broad Diversity Of Faculties, Workforces (i.e., Background) And Students That Produces Educational Benefits

• In U.S. Society, There Is An Ancillary Benefit of Greater Racial Diversity (Need to Assess Expected Effect on African American/Other Women)

• Use Kahlenberg Model Which More Completely Defines Socio-Economic Status

- Includes Poverty Concentration Of Residential Area And School District Per U.S. Census, Total Wealth—Not Only Annual Income

• First In Family To College, STEM, Academic Careers

• Other Neutral Disadvantage Overcome

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Neutral Strategies: Build Relationships With Community Colleges, Other Greater Access Points

Build Relationships With Institutions/Communities That Already Provide Greater Access

• Community Colleges

• Local Municipality’s Schools

• All Female Colleges/Schools

• Historically Black Colleges

• Institutions That Graduate A High Percentage of Women, Minorities

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Green Lights: Practices Less Likely to Trigger Heightened Review—More Likely To Be Sustained

Conducting broad-based, "inclusive" recruitment and outreach activities, including race/gender targeted action

Monitoring data based on race/gender to track needs, progress

Race- and gender-neutral, diversity-related criteria authentically tied to mission

Barrier removal, with evidence of special barriers

Neutral climate-enhancing strategies

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Yellow Lights: Practices Requiring Care / Close Legal Advice

~ Framing institutional interests only as other than EBD/traditional remedial (when connected with challengeable practices)

~ Consideration of race/ethnicity/gender, as one of many factors

~ In capacity-building programs where qualified pool is artificially limited and neutral criteria/outreach are inadequate

~ In hiring/promotion if there's a remedial foundation and capacity building, outreach, barrier removal are inadequate

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Yellow Lights: Practices Requiring Care / Close Legal Advice

~ Consideration of race/ethnicity/gender, as one of many factors in student enrollment-related actions

~ Limited "exclusive" non-admissions, non-hiring/firing programs (“affinity groups”) within a larger universe of broadly available programs where neutral criteria/outreach/lesser approaches are inadequate

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Red Lights: Practices to Avoid

Defining diversity only with respect to race, ethnicity & gender

Using racial-gender quotas or racial-gender balancing to equal societal representation

Using separate standards /criteria or processes for minority or women applicants

Weighting race/gender through an automatic/mechanical point system

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Red Lights: Practices to Avoid

Considering race/gender to make lay off decisions

Changing criteria/process on race/gender basis after candidates are identified

Exclusive programs that are the only or very predominant programs available

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Thank you!

Daryl Chubin, Ph.D., Director

dchubin@aaas.org

202-326-6785

AAAS Capacity Center

www.aaascapacity.org

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