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The U.S. Department of Education is investigating whether Seton Hall School of Law racially discriminates against its own students. The Wall Street Journal reported in December that a job fair last July in which the New Jersey law school participated has triggered the investigation by the department’s Office for Civil Rights. The law school’s Web site, in promoting the event, stated that “Students must be eligible to participate, i.e., they must be students of color.” I don’t mean to single out Seton Hall. Two other New Jersey law schools, Rutgers-Camden and Rutgers-Newark, participated in the same event; both Rutgers law schools are publicly funded by New Jersey. And the practice reaches out far beyond that state’s borders. The career services office at Emory Law School recently promoted to its students the Delaware State Bar Association’s Eighth Annual Delaware Minority Job Fair, which was held on Jan. 17 in Wilmington. The National Association for Law Placement has publicized a Southeastern Minority Job Fair, a Minnesota Minority Recruitment Conference, and a Rocky Mountain Minority Legal Career Fair. The University of North Carolina law school’s Web page has publicized a Dupont Minority Job Fair, a Nashville Minority Job Fair, and a Cook County Minority Job Fair; Widener University School of Law has pushed a Philadelphia Area Minority Job Fair; Chicago-Kent College of Law has posted a BLSA (Black Law Students Association) Midwest Minority Recruitment Conference; Boston University School of Law has listed a Boston Law Group Minority Job Fair and a Northeast BLSA Job Fair for Minority Students; Dorsey & Whitney recently announced a Northwest Minority Job Fair; and on and on. All of which refutes a statement made by the dean of Seton Hall School of Law, Patrick Hobbs, to the New Jersey Law Journal, that “We came up with something that I regard as unique — I don’t know of any other program like it in the country.” Whatever these racially exclusive job fairs are, they are not unique. What they are is illegal. BACK TO TITLE VII Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities . . . because of such individual’s race, color, religion, sex, or national origin.” Minority job fairs clearly segregate applicants by race, and so tend to deprive applicants who are not members of the specified racial or ethnic groups of employment opportunities. Entities involved in minority job fairs also clearly violate Title VII by publicizing and advertising them. Another provision of Title VII makes it unlawful for employers and employment agencies “to print or cause to be printed or published any notice or advertisement relating to employment . . . indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin.” Law schools, through their career services offices, supply applicants to these minority job fairs through advertising, résumé forwarding, and other means. Employers review résumés, select applicants to interview at the job fairs, and make job offers based upon those interviews. Bar associations sponsor some of the fairs. By participating in minority job fairs, all of these involved organizations violate Title VII. FIRM, KNOW THY LAW First, take the employers. Law firms and corporations, as private employers, are subject to Title VII. The Supreme Court specifically held in Hishon v. King & Spalding (1984) that law firm partnerships are employers for the purposes of Title VII. The Court has also held, in Johnson v. Transportation Agency (1987), that, to use preferences in hiring, a private employer must demonstrate the “existence of a ‘manifest imbalance’ . . . in ‘traditionally segregated job categories.’ “ The “traditionally segregated” element of this test requires the employer to trace the imbalance to relatively recent past discrimination. This will be difficult for law firms to do, since they have been banned from such employment discrimination for nearly 40 years now. Further, the “manifest imbalance” part of the test requires that “the comparison should be with those in the labor force who possess the relevant qualifications.” It is unlikely that private legal employers could meet this burden either. Also, minority job fairs violate Title VII because they categorically exclude nonminority law students. In approving an affirmative action plan by a private employer in Steelworkers v. Weber (1979), the Supreme Court took note that the training program at issue did “not unnecessarily trammel the interests of the white employees” because it was “a temporary measure,” and, being open to all races, did not “create an absolute bar to the advancement of white employees.” Because minority job fairs consistently and categorically exclude nonminority students from effective participation, they violate all these narrow-tailoring requirements. Some organizers of minority job fairs may claim that their “minority job fair” is merely called that, but is actually open to all students. Even if this were true, such a practice would be legally equivalent to posting a sign stating, “No blacks need apply,” and then claiming blacks would be considered if they did apply. Government employers must meet an even higher standard. In addition to complying with Title VII, they must comply with the Constitution’s equal protection clause. The entities involved cannot claim a remedial justification unless they are willing to admit that they themselves have discriminated against minority groups in the recent past. “This Court never has held that societal discrimination alone is sufficient to justify a racial classification,” wrote Justice Lewis Powell Jr. in Wygant v. Jackson Board of Education (1986). If government employers were instead to claim a diversity justification, they would also run into trouble. That claim has never been accepted in the realm of employment — two courts of appeals have rejected it in the Title VII context — and, besides, the Supreme Court’s university admission decisions last year in Grutter v. Bollinger and Gratz v. Bollinger have made it clear that “individualized consideration” would be necessary to satisfy the “narrow tailoring” prong of strict scrutiny. A job fair that flat-out excludes certain applicants because of the color of their skin does not provide “individualized consideration.” It also appears that even private entities must now meet this higher standard, since the Court’s Grutter and Gratz decisions say that the prohibitions against intentional discrimination in the 14th Amendment, Title VI of the 1964 Civil Rights Act, and 42 U.S.C. §1981 — which applies to public and private employment-related matters — are coextensive. LAW SCHOOLS BREAK LAW Law schools that host, participate in, or in any way assist minority job fairs are also violating Title VII. The career services offices within law schools act as employment agencies and, therefore, are subject to Title VII. Title VII defines an employment agency as “any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer.” The career services office within any law school satisfies this definition because its purpose is to assist law students in finding jobs both while they are in school and after they graduate. Law schools, even more than employers, cannot rely upon the “existence of a ‘manifest imbalance’ ” in “ traditionally segregated job categories.” Nothing in Title VII indicates that a law school could rely upon a showing that the employers it is recruiting for have discriminated in the past. Considering legal employers tend to be well-versed in the law, it is unlikely that 40 years after the passage of the Civil Rights Act such a showing could be made. Even if it could do this, the law school would need to demonstrate that it screened each legal employer and determined that each had, for instance, a manifest imbalance. By violating Title VII, law schools also violate Title VI as recipients of federal funding. Title VI provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” For law schools to justify their discrimination, they must show that they themselves have in the recent past discriminated by failing to assist their minority students with finding jobs. In this context, they cannot rely on the diversity justification from Gratz and Grutter, which addresses the classroom setting only. Nor can schools meet those cases’ “individualized consideration” requirement. That leaves the bar associations, which host many of the minority job fairs. As with the law schools, bar associations and other hosts of minority job fairs are acting as employment agencies. They are undertaking “to procure employees for an employer or to procure for employees opportunities to work for an employer.” As stated above, there is nothing in Title VII which suggests that an entity acting as an employment agency can rely on the past discrimination of the employer for which it is providing employees. Even if it could, the bar association would, like law schools, have to screen each employer to ensure that the employer had a “manifest imbalance” and so forth. Once again, such a showing would be highly unlikely with regard to legal employers. WHAT TO DO If a law school is involved in minority job fairs, students there should complain to the law school administration and those participating in or hosting the minority job fair. Or, to avoid any negative repercussions, they may decide to complain directly to the Equal Employment Opportunity Commission or to the Department of Education’s Office for Civil Rights. The EEOC and the Office for Civil Rights will, if the student requests, keep his or her name confidential during its investigation. One simply needs to write a letter to the appropriate regional office (addresses are given on their respective Web sites). In the letter, provide the details of the specific minority job fair prompting the complaint. Identify the participants, provide copies of any advertisements, including e-mails and Web pages, and specify the extent to which some racial groups are excluded. It is obvious that law schools, employers, and bar associations can use all the help they can get in learning to follow the law. Roger Clegg is general counsel of the Center for Equal Opportunity, a Sterling, Va.-based think tank. Sandra Pelfrey, a CEO intern, provided valuable research for this column. Clegg can be reached at [email protected]. “Discriminating Eye” appears bimonthly in Legal Times.

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