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National Science Foundation JAM11 Conference Legal Strategies to Increase Participation of Women and Other Underserved Groups in STEM Daryl E. Chubin,

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Presentation on theme: "National Science Foundation JAM11 Conference Legal Strategies to Increase Participation of Women and Other Underserved Groups in STEM Daryl E. Chubin,"— Presentation transcript:

1 National Science Foundation JAM11 Conference Legal Strategies to Increase Participation of Women and Other Underserved Groups in STEM Daryl E. Chubin, Ph.D. Jamie Lewis Keith, Esq. Director, AAAS Capacity Center Vice President and General Counsel Amer. Assn for Advance. of Science University of Florida June 7, 2011

2 Problem Thread of Capacity Center Work Who participates in STEM education & the workforcewho does not and why? How can institutions of higher education improve academic success, career advancement, and utilization of talentstudents to faculty and other professionals? How does Federal policy help/hinder? JAM 2011

3 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

4 AAAS-AAU Law & Diversity Project Objectives: Identify And Foster Common Understanding Of Effective Diversity/Access Programs That Are Also Legally SustainableSTEM 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 JAM 2011

5 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: dscape/PDFs/LawDiversityBook.pdf Handbook Summary and Highlights, available at: _SUMMARY.pdf 5

6 U.S. Has A Pipeline Problem Need: Increase Educational And Workforce Access/Diversity for Women and Underserved MinoritiesAn 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. JAM 2011


8 Part-time employment rates of scientists and engineers: 2006 Source: Women, Minorities, and Persons with Disabilities in Science and Engineering: 2011 JAM 2011

9 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, JAM 2011 Women PhDs and Mentoring* (<10 years post-degree)

10 JAM 2011 Equal Pay Act of 1963prohibits sex discrimination in compensation Civil Rights Act of 1964Title 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 1972any educational program receiving federal funds may not discriminate based on sex Americans With Disabilities Act of 1990bars discrimination in education and employment based on disability; bars discrimination by public and private entities in providing programs or services Civil Rights Act of 1991amends and strengthens 1964 civil rights laws; establishes the Glass Ceiling Commission (1991-1996) Applicable Federal Laws

11 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 OFCCPExecutive 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 -- JAM 2011

12 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 ExistsIncluding An Employers Narrowly Tailored Title VII-Voluntary ActionAnd, For Federal Contractors, OFCCP-Required ActionTo -Remedy Manifest Imbalance, Under-Utilization, Or The Present Effects Of An Employers 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 Decision o Does Not Justify Considering Race/Gender In Hiring, Promotion, Layoff Decision When Prohibited By State Law Because Not Required by Federal Law JAM 2011

13 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 FieldsMay 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 employers workforce in a discipline and their representation in the available qualified labor pool from which employer could recruit. JAM 2011

14 Legal ContextDiversity Rationale Diversity Rationale = The Compelling 1 st 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 RationalesThose Other Than The Title VII Manifest Imbalance or OFCCP 80% Measure)Or May Be An Independent JustificationIn Faculty Or Post- Doc Employment, Consistent With Title VIIs 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 JAM 2011

15 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 JAM 2011

16 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 Isnt Required Stipends Or Scholarships Received Through Financial Aid Process For Total Program Participation And Need Not Provide ServicesNot 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 RecordsNo W-2 Or Withholding Accounts PayableNot Payroll AccountTreatment 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 JAM 2011

17 Foundation For Success: Institutions Educational Mission Faculty, Student Diversity EffortsAnd Enhancing Employment and Educational AccessMust 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 Nations 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 JAM 2011

18 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 Institutions Mission of Excellent Education, Excellent Research, Access, and Service to SocietyDiversity In Itself Is Not The ObjectiveThe 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) JAM 2011

19 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 -- Dont 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) -Dont Change Criteria For Selection Or Process On The Basis Of Race/Gender Once Started And Applicants/Candidates Are Identifiable JAM 2011

20 Outreach Approaches: Jobs and Programs Focus on Outreach Efforts And Review Adequacy Of OutreachNot 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 OutreachDetermine 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 JAM 2011

21 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, Dont Let Search Committees Off The Hook For Excellent Outreach -If All Reasonable Outreach Isnt ExhaustedAnd Applicant Pool/Possible Interviewee List Are Not DiverseDirect Search/Selection Committee To Do More OutreachBoth General and TargetedTo Build A More Inclusive Pool (Not To Interview Diverse Candidate) JAM 2011

22 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) ConductNot Viewpoint – Focused -Regardless Of View Of Race And Gender, Conduct In Class, Research Activities (Not Topics/View), Mentoring, Other Work Can Be Inclusive JAM 2011

23 Neutral Strategies/Criteria: Conduct of Workplace Inclusion Race And Gender NeutralIndividual Conduct That Anyone May Possess And ApplyOr 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 StudentsIncluding Minorities And Women -Can Be Used In Most Employment Actions, Any Student Or Faculty Diversity Program JAM 2011

24 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 JAM 2011

25 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 WealthNot Only Annual Income First In Family To College, STEM, Academic Careers Other Neutral Disadvantage Overcome JAM 2011

26 Neutral Strategies: Build Relationships With Community Colleges, Other Greater Access Points Build Relationships With Institutions/Communities That Already Provide Greater Access Community Colleges Local Municipalitys Schools All Female Colleges/Schools Historically Black Colleges Institutions That Graduate A High Percentage of Women, Minorities JAM 2011

27 Green Lights: Practices Less Likely to Trigger Heightened ReviewMore 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 JAM 2011

28 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 JAM 2011

29 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/lesse r approaches are inadequate JAM 2011

30 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 JAM 2011

31 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 JAM 2011

32 Thank you! Daryl Chubin, Ph.D., Director 202-326-6785 AAAS Capacity Center JAM 2011

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