Srjc's Commitment to Diversity: Post Proposition 209 Racial Racial Preferences Discrimination*

The jury found many inconsistencies in the understanding of how a hiring committee is formed, including the composition of the committee.

The jury found that recent changes in the composition of hiring committees may have impacted final candidate selection.

There was a breach of confidentiality in a 2003 faculty hiring process.

The job announcement for a recent permanent Spanish teacher, under preferred requirements for the position specified a demonstrated ability or potential to succeed in teaching Spanish to heritage speakers and developing curriculum in that area. The term heritage speaker has been defined to the jury by persons interviewed as: 1. A student whose first language is not English and who is enrolled in a course teaching that student's native language; 2. A person (student or teacher) who grew up in a non-English speaking country; 3. A teacher who has lived for an extended time in a country where the language being taught is spoken. Official SRJC documents, including this job announcement, use definition #1.

SRJC administrators verified that it is not only legal but essential to give preference to a candidate who has taught heritage speakers. It was explained that one can't teach a language without having spent significant time in a country where that language is spoken.

The jury, in reviewing recent job announcements for language instructors noted that the preference as listed in F5 above was included for Spanish instructors but not for a French instructor.

According to testimony, having a stated preference for candidates who have taught heritage speakers may be, in fact, viable and legal ranking criteria. It may not then be used to give preference for scoring purposes to a candidate who happens to be a heritage speaker (definition #2 in F4) as they are not the same thing at all. In one case the students are heritage speakers and in the other case, the candidate would benefit by being a heritage speaker.

Only criteria identified in published job announcements may be used for scoring or ranking candidates.

SRJC administrators stated that at no time in a hiring process has a candidate been pre- selected.

Ranking candidates based on race, gender or ethnicity is prohibited and the DCO was not aware of any hiring committee having used race or gender as a criteria. It was further reported that no official guidelines have been made available, nor should they be made available, to help any hiring committee select a candidate of a certain ethnicity.

A 13 step hiring process was described to the jury. The process starts with the chairperson of the hiring department writing a job announcement (using mostly "boiler plate" language), forming a hiring committee and ending with a final, selected candidate being approved by the president. [Note: The process is not actually complete until the Board of Trustees acts on it.] As listed in the Hiring Procedure and the Chairperson Job Description, the chairpersons are allowed to use their best judgment in choosing whom to recruit for the hiring committee. The Human Resources department trains committee members and the DCO sits in on all meetings, not as a voting member, but to assure compliance with law and procedures.

After establishing the hiring committee, the job announcement is created. This can and usually is based on prior announcements for the same position. The jury found that the announcements for Spanish instructors have been significantly altered to include the following preferences for candidates who have: Demonstrated ability or potential to succeed in teaching Spanish to heritage speakers and developing curriculum in that area Ability to speak Spanish with native or near native proficiency Prior study, travel and residence in Spanish speaking communities.

According to testimony, these preferences, once included in the job announcement may then be used as criteria in ranking individual applicants. They may even be weighted, meaning they may be worth more than other preferences when candidates are scored. Additional points may be given for a candidate having these specific attributes. This creates ranking systems that can yield preference to underrepresented minorities.

The jury found that the use of the words diverse and diversity in goals, policies and procedures, when vaguely defined, introduce uncertainty while Proposition 209 is specifically worded to bring clarity and certainty. This then introduces a semantics problem that the California Constitution avoids. California is somewhat unique in clearly forbidding preferential actions - a protection over and above previous legal measures and a constitutional level of protection greater than in all but one other state, Michigan. Michigan voters passed the Michigan Civil Rights Initiative in November 2006, mirroring Proposition 209.

An article in the Press Democrat (2/24/07) titled "Wal-Mart wants more diversity among suppliers" spoke in terms of women and minorities as the "diversity" it sought among its suppliers. This is a more commonly understood usage of the word.

The Faculty Staffing Request for a recent Spanish instructor position clearly demonstrates that the goal of this search was to hire a faculty member "with expertise in teaching Spanish to heritage speakers, thereby contributing to the institutional goal of increasing the ethnic diversity of our faculty." Here, diversity is clearly used to mean "ethnic diversity", setting the wheels in motion for a potential violation of Proposition 209.

The Faculty Staffing Request for a recent Spanish instructor position included the following language: "Although there is no guarantee that our new faculty member will be from an underrepresented group, with our priority on hiring faculty with experience teaching Spanish for Heritage Speakers, there is much greater probability that the outstanding candidate will be representative of the Latino community." This language does not even try to avoid references to ethnicity, much less an exact ethnicity.

SRJC follows a policy/practice whereby the word Staff is used in the Schedule of Classes when the name of the instructor is not known at the time the schedule is published. This policy/practice was not followed in the Fall 2006 Schedule of Classes. That schedule included the name of an instructor who had not yet been hired.

One administrator reported to the jury that, given two equally qualified candidates, selection between the two could be based on race or ethnicity. This violates Proposition 209 in that the final selection is based on race or ethnicity – a clear violation.

SRJC management reported that any employee should feel free to express concern or criticism about any subject, including the administration, without fear of retribution.

Some SRJC employees shared their fears of retribution for having spoken with the jury.

The SRJC hiring policy 4.3.2P as posted on the SRJC web site, has not been updated since April 10, 2001. It still contains references to "affirmative action policy" as part of the hiring procedures.

New employment laws are integrated into operating procedures and policies as the director of human resources (DHR) receives information from sources such as the college attorneys, professional organizations, Chancellor's office, etc. Equal opportunity issues are the responsibility of the district compliance officer (DCO).

Testimony was given that SRJC "assiduously" adheres to Proposition 209, that all policies were reviewed intending to bring them into full compliance with Proposition 209. Changes to the hiring procedure went to the Board of Trustees in December of 2006. As of March 2007 it had still not been revised. Proposition 209 became law over 10 years ago.

A review of the SRJC hiring policy 4.3.2.P raised concerns regarding certain provisions of the hiring process that put SRJC at potential risk of costly litigation, a waste of scarce resources for higher education. Proposition 209 pertains to the entire hiring process, not just to the final decision making. To prove a violation of Proposition 209, something official in writing, such as a policy or regulation, is usually needed. Those provisions of the hiring process referred to in the written policy, included: Composition of Search Committee as the policy states: "Each search committee should include members of underrepresented groups (i.e., ethnic/racial minorities, women, and people with disabilities) who are knowledgeable about District action goals." This provision gives preference based on immutable characteristics. Possible suspension of the hiring process as the policy states that the "DCO is to assist in determining whether the applicant pool is sufficiently diverse", and the policy also gives the DCO the power to "recommend a suspension of the hiring process at any time a question of non-compliance is raised." This language could be used to suspend hiring process if the applicant pool is judged to be not sufficiently diverse. This provision gives preference based on immutable characteristics. On-going training in affirmative action procedures tied to district goals when goals are not clearly specified as the policy states: "All [hiring committee] participants in the process are given regularly updated, appropriate training in affirmative action procedures and District goals and timetables to ensure success in reaching the goals." What goals? If members should include those of historically underrepresented groups, this gives preference to these individuals. This appears to be a violation of Proposition 209."

Violations of Proposition 209 could result in civil liability, including punitive damages risking scarce resources available for public education.

One document reviewed by the jury was called White Paper: Increasing Faculty Diversity at Santa Rosa Junior College.

The White Paper was described to the jury in different ways. They included: A document with an aura of secrecy about it - not openly distributed • A document that is widely circulated and readily available A document meant to educate and promote discussion · A document that hasn't been used by anybody for anything An end-run around proposition 209 A document that to whatever extent it is being used, is being used in a manner such as to circumvent Proposition 209.

The White Paper outlined strategies that could be used to create an increased potential that successful candidates will be from underrepresented races/ethnicities, referred to as the "lack of diversity in SRJC faculty."

One such strategy outlined is the careful crafting of job announcements "particularly in states where state law forbids considering race and ethnicity in hiring". The advice for the job announcement concludes with the direction that "if the institution has expressed diversity as a part of the definition of academic excellence, it can give positive consideration to candidates' agendas that enhance the understanding of race, ethnicity, gender, multiculturalism, etc." The jury saw this type of language inserted in the 2006 job announcement for a Spanish instructor. No such language was inserted in the job announcement for a French instructor.

A second strategy outlined focuses on the composition of the search committee by stating that "the appointment of search committee members committed to diversity is essential to influencing the outcome of a search." It goes on to advise that "the department heads and deans should appoint senior faculty members from other departments who are known for their commitment to diversity". It was stressed that "committee should give guidance on ways to evaluate candidates in a way that values diversity."

The third strategy outlined has to do with effective advertising. Advice given includes to "advertise in journals and periodicals that make special efforts to reach minority faculty and graduate students." Suggestions for alternative places to advertise listed: CareersNow- Oline.com; Craigslist; Hispanic Outlook; La Voz; EL Mensajero.

The White Paper appears to be written by someone very well versed in both federal and state laws. References in the White Paper go back and forth between federal and state laws. Some references in the report are troubling and of great concern, such as: "Race should be considered a 'plus' factor, not the deciding factor." Under California law, race is not a factor at all, at any time.

Another reference began, "to the extent that race is considered, the burden on those who do not get a plus factor should be considered as part of the analysis of the impact of the diversity program." The law says that race is not to be considered to any extent, at any time.

A definition of diversity given by an SRJC supervisory person to the jury: "A range of applicants. If you had two equal candidates and one was from an underrepresented ethnicity, you can choose that one." Statements such as this are illegal as they actually give preference based on ethnicity which is prohibited by law. A legal solution to a decision between equal candidates would be by chance.

The jury was told by an SRJC administrator that SRJC is not constrained by Proposition 209 in accomplishing its commitment to diversity because diversity is a state of mind, a tolerance, having a much broader concept - not a limited view. Since diversity is neither race nor ethnicity it therefore is not covered by Proposition 209.

There is a District Staff Diversity Committee listed on the SRJC web site list of standing committees. It was "established to assist the District to achieve an understanding and compliance with the employment policies and programs outlined in the District Affirmative Action Policy." The preceding quotation is from an undated paper that details committee function, meeting schedule and structure. This committee was unknown to all but one person interviewed by the jury and that person was the chairperson of the Diversity Committee.

The State Chancellor's web site defines diversity as follows: "Diversity means a condition of broad inclusion in an employment environment that offers equality and respect for all persons." This definition is not precise enough to be used as the basis of evaluating one candidate in comparison to other candidates during the hiring process. Conclusions A higher education institution, such as SRJC, may have a beautiful campus and an extensive schedule of classes but the key to a high quality educational experience is the level of talent, expertise and dedication of the teachers that are part of that institution. The hiring and maintaining of the best possible teaching personnel by selecting the best candidates regardless of immutable characteristics, as Proposition 209 mandates, must be the rule. The jury concluded that a strong effort was being made at SRJC to achieve affirmative action goals by the creative use of a vaguely defined term, "diversity". By giving preference to job applicants for certain faculty positions to those with somewhat exclusive life experiences may, in fact, lead to a stronger ranking for members of certain races and or ethnicities. Aproposition 209 specifically prohibits any preferential treatment to any individual or group on the basis of race or ethnicity or national origin. The SRJC, as well as other institutions of higher learning, has been slow to let go of "affirmative action" type programs and language that gives preference based on race, ethnicity, etc. A considerable time has passed since California voters, by a substantial margin, said yes to Proposition 209 – effectively ending affirmative action programs that give preference. Over ten years later SRJC has not completed updating its official policies to reflect this very major change in law. SRJC's use of the word "diversity" moves around from meaning a race or ethnicity to meaning a tolerance in thinking. The jury believes that this thinking and creative use of language might pose a risk to SRJC, a risk that could play out in a court of law, jeopardizing funds for higher education. This obfuscation may be unintentional or it may be an intentional strategy to circumvent Proposition 209. The jury does not know if either one is the truth. The jury does, however, raise the question of whether divergent uses of such a vital but apparently varied meaning of the word are appropriate. It is the jury's conclusion that, all things considered, the SRJC hiring process may have, in some cases, violated the spirit if not the letter of the law. The jury did not find that there was indisputable evidence to prove that the hiring process was illegal. The jury also did not find that SRJC is in absolute compliance with Article 1, Section 31 of the California Constitution. Commendations The jury commends faculty who have been willing to come forward to help the jury despite their fear of retribution. The fears were so pronounced that the jury is compelled to make a statement supporting the individual's rights not to experience any retribution, retaliation or failure to advance as the result of having spoken to this jury. The jury commends SRJC for initiating an independent investigation into its hiring practices.