Can a private university announce that they are going to hire two new employees for a teaching department and require that they are of a certain ethnicity? I know of an educational institution that has said they will exclusively consider people of a specific ethnic minority for a general English department position, in order to increase diversity. In other words, despite people of multiple ethnicities having applied, only people of ethnicity X are being considered.

Is this a violation of Title VII? I know that it is illegal to not hire someone because of their ethnicity. However, I also know that the federal government has encouraged universities to hire more minorities, so how is this balanced with Title VII?

2 Answers 2


The Supreme Court has held, Regents of California v Bakke 438 U.S. 265, that a racial quota system is unconstitutional. The decision upheld the use of race as one of many factors, but ruled against setting aside positions that could only be filled by members of racial group ("forecloses consideration to persons like respondent"). To be constitutional, the practice must allow the possibility of hiring a person not in the racial group, thus they cannot require a person to be of a certain ethnicity, which is the situation you describe (but check the language of the ad since it probably states a preference, not a requirement). Preferences are found to be allowed in Grutter, Fisher, just as GPA or extramural activities can be considered. In Gratz it is emphasized that racial classifications are subject to strict scrutiny, thus must be narrowly tailored, and a system automatically awarding points or disqualifying applicants based on race is not narrowly tailored.

The EEOC has made available this non-opinion letter addressing faculty recruitment and the "especially encouraged" clause, which more or less says this, also pointing to 29 CFR 1607, i.e. addressing the Title VII issue. 29 CFR 1607.2(C), the statutory realization of Title VII, says

the use of recruiting procedures designed to attract members of a particular race, sex, or ethnic group, which were previously denied employment opportunities or which are currently underutilized, may be necessary to bring an employer into compliance with Federal law, and is frequently an essential element of any effective affirmative action program; but recruitment practices are not considered by these guidelines to be selection procedures

29 CFR 1607.3(B) requires that

Where two or more selection procedures are available which serve the user's legitimate interest in efficient and trustworthy workmanship, and which are substantially equally valid for a given purpose, the user should use the procedure which has been demonstrated to have the lesser adverse impact

which expresses the "least restrictive" concept of strict scrutiny.


The Supreme Court has belt that affirmative action is legal - Grutter v. Bollinger. However, in the case you posit, race must be only one of many factors considered and cannot be used to exclude people not of a particular race.


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