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Monday, December 15, 2008

Minority College Football Coaches and Civil Rights

The new-old controversy in college football is the lack of Black head coaches in Division I-A college football. With recent firings and resignations, there are four Black coaches (out of 119 schools) in a sport in which approximately 46 % of players are Black. Exacerbating this problem is the recent trend of current head coaches at major programs designating a current (usually white) top assistant as the new future head coach whenever the current coach retires, a process that pretermits any future coaching search in which outside, Black candidates might be considered for the job. Essentially, the practice locks-in the current state of coaching at many major schools.

Richard Lapchick, one of the leading scholars on collegiate sport, race, and society, criticizes this state of affairs. He argues that the NCAA should adopt a version of the NFL's "Rooney Rule," which requires that teams interview at least one minority candidate for a head coaching job. Lapchick calls his proposal the "Robinson Rule," after the late Eddie Robinson, the all-time-winningest D-I coach at historically back Grambling State (a D-I-AA school) who never even got an interview for a D-I-A head job.

So here are my questions for con law and employment-law types out there: Would such a rule be constitutional under the Fourteenth Amendment? The NCAA is not a state actor, but individual state schools would be in following and carrying out such a rule. So, given the current state of Equal Protection law, would it be unconstitutional for a governmental actor to automatically interview and give serious consideration to a minority for every position? Or, as to private schools, does it violate Title VII? Finally and conversely, would the NCAA's failure to adopt such a rule (or a similar rule designed to ameliorate the dearth of opportunities for minority coaches) violate Title VII (Lapchick reports that the Black Coaches Association is considering using Title VII to challenge current hiring practices)?

Posted by Howard Wasserman on December 15, 2008 at 07:27 AM in Constitutional thoughts, Culture, Employment and Labor Law, Sports | Permalink


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I'm not well-versed enough in college football to know if this is fair analysis by the LGM crowd. But I do know that the lack of Black coaches in D-I football is a long-standing problem, and one the NCAA has bent over backwards to avoid correcting. L... [Read More]

Tracked on Dec 15, 2008 2:15:40 PM


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As to Title VII: No. See Weber.

As to the Equal Protection Clause: Maybe. But I don't think so, given some of the Court's thoughts on "invidious discrimination," on universities as specific institutions (see dicta in Grutter), and just sort of a gut feeling.

Posted by: Matthew Reid Krell | Dec 15, 2008 1:42:22 PM

the problem is that the NCAA regulates more than college football. If they pass a rule about interviewing coaches, it is probably going to have to apply to all coaching positions. Do you really want to force athletic departments to interview at least one man for all women's basketball coaching positions?

Posted by: superdestroyer | Dec 15, 2008 3:12:27 PM

Here's my response, posted on Phi Beta Cons at National Review Online earlier today:

The answer is yes, such a policy would violate the law. The Supreme Court has ruled that all uses of racial classifications trigger “strict scrutiny” and are “presumptively” illegal, and Title VII expressly prohibits racial discrimination, not only in actual hiring but also in the classification and treatment of applicants. If, absent the proposed rule, a minority candidate would not have been interviewed, then the rule provides preferential treatment to that candidate when he is brought in, to the detriment of his nonminority competitors — not only vis-à-vis the others chosen for an interview who now face another rival, but for the nonminorities who were ineligible even to be considered for the additional slot.

So, can the discrimination be justified? That seems very unlikely. The post says it is a “problem” that only 4 percent of the coaches are black when 46 percent of the players are, but why is that? The Supreme Court flatly rejected the role-model rationale over 20 years ago, in Wygant v. Jackson Board of Education (1986). Justice Powell wrote in Wygant, “Carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education.” And the fuzzy diversity rationale from the Court’s University of Michigan cases isn't applicable here: No one is suggesting that there are “educational benefits” to exposing football players to different coaches, since (a) each player will probably have only one head coach per career, and (b) skin color is a very poor proxy for any educational benefits the coach provides.

In Hazelwood School District v. United States (1977), the Court similarly noted that a school district could not point to the racial makeup of its student body as a justification for the racial makeup of its faculty. That makes sense, and for a variety of nondiscriminatory reasons, the racial makeup of the pool of qualified coaches will likely be different from that of qualified players (and both are likely different from the racial makeup of the general population). For starters: If college coaches are generally required to have college degrees (a not-unreasonable assumption), and if several years' coaching experience is also required, we’re talking about degrees earned at least ten years ago — that pool is going to be a lot whiter and a lot less black than the pool of current college players.

The remaining possible justification for the proposed rule (and the only one recognized by courts for Title VII) would be that it’s needed to remedy or prevent antiminority discrimination. But, as both a legal and commonsense matter, this argument works only if there is reason to suppose that a specific school or schools are engaging in discrimination: Why require schools that are not discriminating to begin considering race? I doubt that such discrimination happens very often, since what most schools want is to win, period. Everyone knows that black coaches can win (two words: Tony Dungy; two more words: Lovie Smith).

I’m prepared to believe that in some schools there may be some rich boosters or university officials who are irrationally opposed to hiring black coaches, but the narrowly-tailored (Fourteenth Amendment) or less trammeling (Title VII) solution to that is to cut out the racist boosters or fire the racist officials — not to impose an interview quota for the school, let alone for all the other schools, including those with no history of discrimination.

The last question posed is whether the dearth of black coaches opens the schools (individually or in the aggregate, through the NCAA) to a lawsuit if it is not addressed. Well, it would if there were actual discrimination, but as discussed above that seems unlikely. What if neutral hiring practices have a “disparate impact” (the example given: if a head-coaching position goes automatically to an assistant coach, who's likely to be white) to use Title VII parlance? For starters, I’m not sure there is a disparate impact if, as discussed above, the applicant pool is defined correctly. But even if there is, the employer still has an opportunity to justify the challenged practice, and I think that the practice of preferring to promote from within would meet Title VII’s standards. College football is not alone in this policy, and it has obvious practical and morale advantages.

Posted by: Roger Clegg | Dec 15, 2008 8:09:28 PM

As posted on Warchant:

OK...time to weigh in on this subject. I am a principle in a diversity consulting company. We work with companies to assist them in creating diversity in all aspects of their business, from customer base to executives. Our company does not work with quotas or numbers but with processes that have fostered the environment that has led to a lack of diversity. College football is not unlike most of the companies that I work with, in that the processes in place have created the lack of diversity and not a predetermined course of action that involves racism.

As with most companies, the hiring process is not as inclusive as it should be due to the process in place. As an example, a company needs to hire a new CFO. All of the executives know of this need and the hiring need becomes common knowledge to the employees. The company places ad's in the paper and receives resumes from various individuals interested in the position. As the process proceeds, the VP of operations goes to the CEO and tells him of his close friend/relative that is interested in the position. (I would ask everyone to at this point to examine their own work history and see if you can identify a time when you went to work somewhere that you had a friend/relative working...very plausible?) So at the onset of the hiring process you have a candidate that has preference due to the recommendation by an "insider", independent or race or gender. This individual, if qualified, definitely has an "inside track" on receiving the position available.

So now lets look at who is most likely to be in your friend/relative circle. No matter what race/gender you are, those individuals that make up the core of your relatives/friends will be much like you. Not to the exclusion of all others but certainly a vast majority. We call this the "circle of influence". While a circle of influence may overlap with dissimilar circles, the circle itself will consist of similar individuals of race, sex and income. So if you are making a recommendation to your company from your circle of influence, odds are that the person recommended will be very similar to you. Is this racist? I would put forward the notion that it is not racist by design.

College football is no different. Most D1 institutions have white Presidents and white AD's. Thus the circle of influence of those in positions to decide will be white (and mostly male also). So the majority of recommendations from the circle of influence will be white males and those white males will have the inside track due to the trust people have in those individuals that make up their circle of influence.

So how does a company (or college football) change from this process? How does a company move from influenced hiring to open hiring policies? The 1st step is to create a system that ensures a diverse pool of candidates. This usually requires for a company to reach out to candidates that are from other circles and to ensure that the pool of potential candidates is diverse. The 2nd step, and the most difficult, is to ensure that the process does not skew itself due to the circle of influence but examines the pool only on the merits of the individual. This can only be achieved when all parties involved in the hiring process are committed to creating a diverse institution.

The Rooney rule in the NFL forces NFL teams to create an inclusive pool but only addresses a single element (African Americans) and thus still falls short of true inclusion but is certainly a step in the right direction. The true shame in the Rooney rule is that NFL owners did nothing about this on their own and had to be forced into creating a quasi diverse hiring pool rather than recognizing the need and creating a diverse pool on their own.

When I look at the grievance that the BCA has with D1, the real issue is the lack of inclusion in the process. This lack of inclusion has a predictable outcome, the limited number of black head coaches in D1. If the pool becomes more diverse, then the ranks of D1 coaches will follow suit if decision makers reduce/remove the effects that the circle of influence has on the decision making process. But inclusion without further adjustments to the policies surrounding hiring will have little effect on the final outcome.

Posted by: tim | Dec 19, 2008 1:54:16 PM

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