STANFORD — The charge by 15 current and former women faculty members at Stanford that the university has engaged in widespread discrimination against women and minority groups in hiring and tenure decisions highlights a crucial ambiguity in affirmative-action policy. Two sets of criteria with quite different genealogies govern affirmative action. One draws on the tradition, embodied in the Civil Rights Act of 1964, that equal protection under the law means equal rights for all without regard to race or gender. The other asserts that equal protection makes racial or gender identification permissible and necessary. In this view, preferential treatment based on race or gender is a rational means of remedying past discrimination.
This ambiguity leaves Stanford in a quandary: There is no clear agreement, either on or off campus, as to what constitutes the discrimination alleged by the women faculty in a complaint to the U.S. Labor Department, which is investigating. This is no semantic quibble. College and university officials across the country have repeatedly been told thataffirmative action's prohibition against discrimination means that men and women should receive "equal treatment." But what kind of treatment is "equal" remains a matter of dispute.
What's not in dispute is that the meaning of discrimination has changed. At one time, it depended on whether race or gender were "intentional" factors in hiring. Now discrimination can be said to occur even if a university's faculty and administration have not "intentionally" discriminated. The test Stanford must meet is whether its hiring and promotion practices have disproportionately disadvantaged women and minorities after the fact.
This shift in definition "does not make it easy to know precisely what the law dictates in the uncertain and evolving area of affirmative action," says Stanford President Gerhard Casper. For example, a college or university used to undertake affirmative action to ensure equal treatment without regard to race or sex. Now equal treatment of individuals is seen as possibly impeding progress toward what some insist is a more important affirmative-action goal: the immediate and preferential hiring of women and minorities in the quest for statistical parity.
Detaching "without regard to" from the concept of discrimination, in combination with the Labor Department's investigation of the charge that certain groups are underrepresented on Stanford's faculty, raises a troubling question for Casper: Is Stanford's existing policy of rejecting separate standards for different groups in deciding who should be granted tenure or promotion legal?
Provost Condoleezza Rice has drawn fire for her reservations about applying "goals and timetables" to tenure and promotion decisions. But her concern is easily misunderstood. If the basic goal of affirmative action is to assure that members of both sexes and of all races and ethnic groups are accorded equal employment opportunities, a numerical analysis of the circumstances of different groups can be helpful. It can be especially useful if its purpose is not simply to generate statistics but, instead, to assist the university in reaching out to women and minorities.
A preoccupation with numbers and statistical parity suggests that the primary objective of a university in faculty hiring should be to use goal setting as a way of favoring applicants on the basis of race or gender. But as Princeton's former president, William Bowen, stated more than 20 years ago, "The aggregate numbers for groups of people should be seen as expected byproducts of affirmative-action efforts, not as goals themselves." In his view, it is important to overcome any notion that a woman or minority has been hired only because a numerical goal had to be reached. In short, the numbers game cannot make equality of opportunity an immediate reality.
Federal officials have persistently maintained that numerical goals are not quotas, but simply a way of evaluating whether a university is meeting its affirmative-action obligations within a specified time period. When is a quota not a quota? When it is a numerical goal? Is there really a significant difference between a university setting a quota of 10% bearded Republicans on the faculty within five years and announcing as its numerical goal the hiring of 10% bearded Republicans within five years? Perhaps the difference is a matter of perception. For federal investigators who wish to impose them, they are called "goals." But for an academic department that must apply them in making faculty appointments, they may become the functional equivalent of quotas.