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Stanford Report, February 10, 1999

Casper comments on affirmative action

Statement by Gerhard Casper

President, Stanford University

to the Faculty Senate

February 4, 1999

News reports this week juxtaposed multiple items relating to affirmative action. Across the Bay, students are suing the University of California because it does not practice affirmative action. Elsewhere in the country, a group is taking out ads encouraging students to sue their universities if they do practice affirmative action in ways to which the group objects. And closest to home, we learned from the newspapers that the Department of Labor is looking into our tenure practices.

I say "we learned" because I learned of the last matter in the same way as you did, by reading it in the paper. It says something about the state of our nation that even government agencies increasingly speak to the press first and to those with whom they are dealing later. After we called the appropriate Department of Labor office to inquire, we got a voicemail back yesterday saying that the office had received, quote, "some allegations," unquote, but that it had not notified us because it first must clarify the items, including whether they are covered by federal requirements. The official said, and I again quote, "It's in a very preliminary stage."

That provides a somewhat different perspective from that offered by the newspapers, one of which headlined its story, "Feds grill Stanford." I commend the Stanford Daily for being generally less breathless, and more accurate and intelligent, in its headline and story than most of its commercial competitors.

Perhaps more troublesome than the absence of notification or overwrought newspaper headlines, however, is a sentence in the first story to appear: "The provocative statements of Stanford's provost partly prompted the federal scrutiny, officials said." The statements referenced were about Stanford's faculty hiring and promotion philosophy, and the provost made virtually all of them here in the Faculty Senate. So, it has come to this: We must be on notice that free and robust discussion of university policy in the Senate may prompt federal inquiry. If it were not sad, rather than funny, one might wonder if administrators, before attempting to answer questions from the Senate floor clearly and honestly, be given a Miranda warning.

What many of the media stories lost sight of was that the provost was not stating a radically new theory about the role of affirmative action in faculty appointments and granting of tenure. First, her stated reservations about goals and timetables were initially expressed in response to a suggestion from the Senate floor that we publicly commit ourselves to achieving firm numerical goals on a specific timetable. I share the provost's reservations about such an idea, which could easily be seen as a quota and which has proven to be counterproductive at other universities.

Further, the provost has convincingly demonstrated that in 1985, Norman Wessells, then dean of the School of Humanities and Sciences, authoritatively established the principles she stated. I quote Dean Wessell's policy paper from 14 years ago: "Affirmative action does not include separate standards of evaluation at the time of review for tenure. . . .

It is long-standing Stanford policy that at the point of hiring assistant professors we practice affirmative action in casting a wide net and taking extra care to ensure that women and minorities have an equal opportunity. But at the point of tenure decision, the candidate faces evaluation entirely as an individual; at Stanford, she or he is not competing against any other candidate for the tenured position, and there is no room for anything but a judgment of the individual's merit. As one person has put it, it is just like giving grades in the classroom: In close cases, we do not give an A to members of one group and a B to members of another. Separate standards for men and women faculty members, or for any two groups, would be discrimination and contrary to the principles of equal protection and equal opportunity.

Let me clear up another misconception. To read the newspapers, one would think that women have fared badly in tenure decisions in recent years. Yet statistics that the provost presented to the Senate last May showed almost no difference between men and women. In the cohort of assistant professors hired at Stanford from 1987 through 1991 ­ faculty members who, thus, would have come up for promotion to tenure in the last five years ­ 50% of the men and 51% of the women were awarded tenure. Let me repeat, 50% of the men and 51% of the women.

That statistic, of course, carries the reality that half of all assistant professors hired do not gain tenure. That fact of life inevitably leaves those candidates disappointed and unhappy. But Stanford's faculty is so good precisely because, as I have previously stated, the university has no presumption that qualitatively close cases be decided in favor of the candidate for promotion. Quite the contrary, there should be no "benefit of the doubt." Appointments and promotions should be made only to the degree that past achievements promise outstanding future achievements.

As Dean Wessells made clear in 1985, it has not been Stanford's policy to promote less qualified persons to tenure because of their race or gender. We can be assured that if we were to adopt such a policy today, we would be besieged with lawsuits by individuals who were not given such a preference. The delicate task that we face is how to satisfy the competing legal mandates that the government has set up for us if we endeavor to use other, non-preferential, means of assuring equal opportunity. The laws Congress has passed, the regulations the executive branch has issued and the rulings the courts have made are often hard to reconcile with one another, let alone with various state laws and regulations. Stanford, like all institutions, has learned that it is not easy to know precisely what the law dictates in the uncertain and evolving area of affirmative action, a term that is itself uncertain and evolving. An example from federal law may illustrate the difficulty of this task.

The United States Department of Labor and the California courts recently pronounced that setting flexible goals and timetables for hiring racial minorities and women is not unlawful, so long as the goals and timetables are not binding, and so long as they reflect the actual availability of qualified men and women in that particular job category. Okay, that is one position. But the United States Court of Appeals for the District of Columbia Circuit, in many ways the second highest court in the land, held just the opposite, saying, in effect, "that is not the rule." In a unanimous opinion last year, that Court held that even such a non-binding goal, and I quote, "pressures [employers] to maintain a workforce that mirrors the racial breakdown of their [area]," unquote, and therefore is unconstitutional. [Lutheran Church-Missouri Synod v. Federal Communications Commission, 1998 U.S. App. LEXIS 7387 (D.C. Cir. 1998)]. There is a clear implication that such a rule would also violate the Civil Rights Act. We are left, therefore, to operate within these seemingly inconsistent legal statements.

Under Vice Provost Weisberg, we take vigorous affirmative action steps at the time of hiring, including: insisting that departments and schools follow procedures for an affirmative action search; providing statistics on the availability of women and minorities in the Ph.D. pool in the discipline in question; requiring advertising and solicitation of applications as broadly as possible; requiring documentation and justification at each level of cuts as to the effect on women and minority candidates; and providing the Faculty Incentive Fund to make certain that women and minority candidates that departments seek are not lost due to insufficient funding or overly restrictive slotting.

We examine how we are doing and we constantly strive to do better. We do our best to comply with civil rights law as we understand it and in a manner that is true to our principles. SR