AAAED Opposes the Confirmation of Judge Neil Gorsuch to the United States Supreme Court

Washington, DC - March 29, 2017.  The American Association for Access, Equity and Diversity (AAAED), an organization of equal opportunity, diversity and affirmative action professionals, informed the Senate Judiciary Committee that it must respectfully oppose the confirmation of Judge Neil Gorsuch for the United States Supreme Court.  

In its "Statement in Opposition to the Confirmation of Neil Gorsuch to the United States Supreme Court, AAAED wrote: "Given its mission, AAAED recognizes the utmost importance of the Supreme Court of the United States in fairly interpreting the laws regarding civil rights and civil liberties in the workplace, education, private industry, public accommodations and other sectors." "From Brown v. Board of Education of Topeka (1954), to Grutter v. Bollinger (2003) and Obergefell v. Hodges (2015), the Supreme Court has been essential to the advancement of equal opportunity and social progress by extending Constitutional protections to all regardless of race, religion, ethnicity, sex, gender, disability, national origin or sexual orientation." 

AAAED expressed its support for the statement in opposition released by the Leadership Conference on Civil and Human Rights on March 20, 2017. AAAED is a member of the Leadership Conference, an association of more than 200 civil rights and social justice-oriented organizations. AAAED also noted its support for the positions expressed by the National Bar Association, an organization of predominately African-American lawyers founded in 1925, and the National Women's Law Center. "AAAED reiterates the concern expressed by these entities and others that Judge Gorsuch shows a lack of impartiality and independence, as evidenced by his rulings on the Tenth Circuit as well as his speeches and publications," wrote AAAED. "Moreover, as the National Bar Association wrote, Judge Gorsuch's speeches and writings 'evidence a strong tendency to be biased in favor of powerful corporate interests and unapologetically biased against workers and victims of civil and human rights violations.'" 

Among the cases that gave AAAED the greatest concern regarding Judge Gorsuch's views of the rights of minorities, women, the LGBTQ community, individuals with disabilities and workers are the following:

In Strickland v. UPS, 555 F.3d 1224 (10th Cir. 2009), the majority held that Carole Strickland, a UPS account executive who sued UPS for sex discrimination and retaliation against her for taking two weeks of leave under the Family and Medical Leave Act (FMLA) for reasons related to stress, could proceed with both the FMLA and Title VII discrimination claim based on evidence that she was treated worse than male colleagues despite her outperforming them in sales.  In his dissent Judge Gorsuch dismissed the evidentiary record and voted to dismiss the Title VII complaint, concluding that she had not proved that she was treated differently than similarly-situated men.  

In Hobby Lobby Stores, Inc. v. Sebelius, 723 F. 3d 1114 (10th Cir. 2013) Judge Gorsuch joined the full court in ruling against women's rights and workers' rights, resulting in the denial of basic health services to thousands of female employees.  According to Judge Gorsuch, Hobby Lobby, a closely-held, for-profit secular corporation did not have to comply with provisions of the 2010 Patient Protection and Affordable Care Act that require employers to provide contraceptive services. Citing the Religious Freedom Restoration Act of 1993 (RFRA), he ruled in favor of Hobby Lobby on the grounds that the provision of contraceptive services violated the company's sincerely held religious beliefs. Moreover, Judge Gorsuch indicated that not only the corporations but the individual owners could challenge the mandate to provide contraceptive services.

In Thompson R2-J School District v. Luke P., 540 F. 3d 1143 (10th Cir. 2008) he denied a student with autism the legal right to attend a private program that was deemed necessary for the child's education during a hearing of the Colorado Department of Education. According to Judge Gorsuch: "a school district is not required to provide every service that would benefit a student if it has found a formula that can reasonably be expected to generate some progress on that student's IEP goals."  The U.S. Supreme Court recently disagreed with this inordinately narrow determination of the appropriate standard.  Judge Gorsuch's standard was exceedingly low and "would barely provide an education at all to children with disabilities," to quote Justice Roberts. Schools must provide a program that is "appropriately ambitious in light of his circumstances. Endrew F. v. Douglas County School District, 580 U.S. ____ (2017).

Similarly, Judge Gorsuch demonstrated a callous disregard for the rights of a worker in the notorious TransAm Trucking, Inc. v. Administrative Review Board case involving a truck driver, Alphonse Maddin, who chose life versus remaining with his truck as ordered when his brakes failed to operate because of the cold and the heating was inoperative. This case also exemplified Judge Gorsuch's willingness to ignore agency interpretations in favor of his own.

"Given the increasingly polarized nature of our state and national legislatures, the federal courts and the Supreme Court in particular are becoming the only recourse for women, people of color, the LGBT community, individuals with disabilities, religious minorities, immigrants, employees and other groups seeking equal treatment under the law," wrote AAAED.  "It is therefore essential that the individual who fills the vacant seat on the Supreme Court be prepared to defend the rights of all in a balanced and impartial fashion."  

For a copy of the AAAED Statement, click here:  AAAED Statement on Gorsuch

Minority Students at Greater Risk of Sexual Assault

By Emily Tate
March 20, 2017

Not only are racial, sexual and gender minority groups more likely to be victims of sexual assault, students who consider their colleges inclusive and tolerant are less likely to be victims, two new complementary studies found.

Published recently in the Journal of Interpersonal Violence and Prevention Science, the studies reveal how populations with intersecting minority identities may be at greater risk of sexual assault, emphasizing the need for more sexual assault research and prevention and treatment programs that address specific marginalized groups.

One study, led by a team from the University of Pittsburgh Graduate School of Public Health, was based on surveys from over 70,000 undergraduate students attending 120 higher education institutions between 2011 and 2013.

Based on these results, the researchers suggested that such inclusive campus environments might encourage students to speak up and stop a sexual assault if they see one happening or to be more cautious in certain high-risk environments, like events that include drugs and alcohol.

"If sexual assault prevention efforts solely focus on heterosexual violence, they may invalidate sexual- and gender-minority people's assault experiences and be ineffective for them," said Robert Coulter, lead author of the two studies and a doctoral candidate in Pitt Public Health’s Department of Behavioral and Community Health Sciences. "To overcome this, existing programs could be augmented to explicitly address homophobia, biphobia, transphobia and racism. And new interventions could be created specifically for sexual, gender, racial and ethnic minorities."

Read full story here.

Anti-Semitic Fliers at U of Illinois Chicago

By Emily Tate
March 20, 2017

At least 100 anti-Semitic fliers were distributed across the University of Illinois at Chicago campus last week, according to The Chicago Sun-Times, adding to the litany of anti-Semitic incidents that have occurred on college campuses in recent months.

The fliers suggested that Jews control a disproportionate amount of wealth in the country -- it says Jews make up 2 percent of the population, but that 44 percent of them are among the top 1 percent of Americans.

The creators of the flier appear to be citing two Pew Research Center studies, with links provided at the bottom of the page, but the numbers used do not match the data on Pew’s website.

In large font, the flier also says, “Ending White Privilege Starts With Ending Jewish Privilege.”



Read full story here.

Charges of Ignoring Harassment, Year After Year

Grad students’ lawsuit against Ohio U says it failed to act on complaints of an English professor’s sexual misconduct for a decade, allowing him to continue harassing young women. A former department chair is named as a co-defendant.

By Colleen Flaherty
March 20, 2017

Two graduate students at Ohio University are suing the institution -- including a former department chair -- for allegedly allowing another professor to serially harass female graduate students for over a decade. Although the plaintiffs allege they were harassed and groped at a class party in 2015, a related university investigation found that the professor in question had harassed students going back to 2003.

The case comes at a time when many colleges and universities are rethinking their approaches to enforcing Title IX of the Education Amendments of 1972, which prohibits gender discrimination in education -- including timelines for taking disciplinary action against those accused.

Ohio has already moved to fire the tenured full professor and says its processes ensure that all complaints are “investigated thoroughly and handled appropriately.” At the same time, it’s launching what it calls a “comprehensive training strategy to enhance the campus community’s understanding of the shared responsibility to report all forms of sexual misconduct and to work to stop sexual misconduct from occurring.” Training will be mandatory for all faculty and staff members.

The accused harasser, Andrew Escobedo, says he’d like to comment on the allegations but can't, in light of pending litigation. He's previously denied them, however. Escobedo has been on administrative leave since March 2016, awaiting the outcome of a university investigation against him and disciplinary proceedings.

Read full story here.

Lower DOL Budget May Signal Changes for Contractor Enforcement

By Jay-Anne B. Casuga
March 17, 2017

A Labor Department subagency that monitors government contractor compliance with affirmative action and nondiscrimination requirements could pull back on deep dives into contractor data during audits. That’s one potential outcome under President Donald Trump’s fiscal year 2018 budget proposal.

Trump released a proposed “ skinny budget” March 16 that calls for a 21 percent funding reduction for the DOL as a whole, which likely means the DOL’s Office of Federal Contract Compliance Programs will also receive budget cuts.

“The question is not whether, but simply how much,” John Fox, a management attorney with Fox, Wang & Morgan in San Jose, Calif., and a former OFCCP policy official, told Bloomberg BNA.

Read full story here.

Canada's Moment

A Trump effect? Many Canadian universities are reporting large gains in international applications at the same time some American universities are seeing declines.

By Elizabeth Redden
March 20, 2017

Leigh-Ellen Keating, who directs international services for Brock University, in Ontario, just attended a student recruiting fair in Mexico. “The table was flooded with people, which is not historically what I have seen with the Mexican market,” she said. “They just want to go to Canada, and historically I think a lot of them would go to the States.”

“It didn’t hurt,” Keating continued, that the recruitment fair coincided with an anti-Trump rally in front of the hotel where the fair was held. She suspects some of the rally participants might have popped over to check out college options in Canada. President Trump is highly unpopular in Mexico. He kicked off his campaign by depicting some Mexican immigrants as criminals and rapists and has pledged to deport millions of immigrants who are in the country illegally and build a border wall.

“Mr. Trump, he’s not bad for our recruitment strategy,” Keating said.

Read full story on Inside Higher Ed.

Trump's Travel Ban Blocked

By Scott Jaschik
March 16, 2017

A federal judge in Hawaii issued an injunction late Wednesday blocking the Trump administration from temporarily barring nationals of six Muslim-majority countries -- Iran, Libya, Somalia, Sudan, Syria and Yemen -- from entering the U.S.

The injunction is against President Trump's revised travel ban, which he issued this month after federal courts blocked his first ban. While many in higher education said the second ban was in some ways better than the first, they still objected to its automatic refusal to allow some people to come to the United States to study or teach because of their country of origin.


The judge's order is likely to be appealed by the Trump administration. As with the first round of litigation, higher education is playing a prominent role in the legal arguments.

The state of Hawaii, in challenging the second ban, specifically cited the impact it would have on the University of Hawaii. Judge Derrick K. Watson based part of his decision -- on the crucial issue of the state's standing -- on the arguments involving the university.

"The university is an arm of the state. The university recruits students, permanent faculty and visiting faculty from the targeted countries. Students or faculty suspended from entry are deterred from studying or teaching at the university, now and in the future, irrevocably damaging their personal and professional lives and harming the educational institutions themselves," the judge's ruling says.

Sealing the border could block one of America’s crucial exports: Education

Dick Startz
January 31, 2017

The last election made clear that Americans want to improve our balance of trade in order to protect jobs. Something not often realized is that education—particularly higher education—is a major American export. If new border controls prevent the entry of foreign students, or simply makes them feel unwelcome so they go elsewhere, American jobs and American students pay the price.

If you are not an economist, the idea that America’s education of foreign students is an export may seem strange. What makes a service like education an export is that foreigners pay U.S. institutions, so money flows into the U.S. from abroad. Education of a French student in the United States is an export in exactly the same way that the visit of a Chinese tourist to Disneyland is an export, or the provision of stock brokering services on the New York Stock Exchange to a German financial company is an export. When we provide a service that leads to foreigners sending money into the U.S., that’s an export with exactly the same economic effects as when we sell soybeans or coal abroad.

Read full story here.

House Republicans would let employers demand workers’ genetic test results

By Sharon Begley
March 10, 2017

A little-noticed bill moving through Congress would allow companies to require employees to undergo genetic testing or risk paying a penalty of thousands of dollars, and would let employers see that genetic and other health information.

Giving employers such power is now prohibited by legislation including the 2008 genetic privacy and nondiscrimination law known as GINA. The new bill gets around that landmark law by stating explicitly that GINA and other protections do not apply when genetic tests are part of a “workplace wellness” program.

The bill, HR 1313, was approved by a House committee on Wednesday, with all 22 Republicans supporting it and all 17 Democrats opposed. It has been overshadowed by the debate over the House GOP proposal to repeal and replace the Affordable Care Act, but the genetic testing bill is expected to be folded into a second ACA-related measure containing a grab-bag of provisions that do not affect federal spending, as the main bill does.

Read full story here.

In world first, Iceland to require firms to prove equal pay

By The Associated Press
March 8, 2017

LONDON (AP) — Iceland will be the first country in the world to make employers prove they offer equal pay regardless of gender, ethnicity, sexuality or nationality, the Nordic nation’s government said Wednesday — International Women’s Day.

The government said it will introduce legislation to parliament this month, requiring all employers with more than 25 staff members to obtain certification to prove they give equal pay for work of equal value.

While other countries, and the U.S. state of Minnesota, have equal-salary certificate policies, Iceland is thought to be the first to make it mandatory for both private and public firms.

The North Atlantic island nation, which has a population of about 330,000, wants to eradicate the gender pay gap by 2022.

Social Affairs and Equality Minister Thorsteinn Viglundsson said “the time is right to do something radical about this issue.”

“Equal rights are human rights,” he said. “We need to make sure that men and women enjoy equal opportunity in the workplace. It is our responsibility to take every measure to achieve that.”

Read full story here.

Senate Democrats Adopt Staff Diversity Rules

Bridget Bowman
Roll Call
March 7, 2017

Senate Democrats have taken a formal step to codify their push for staff diversity in the Senate.

Lawmakers approved new conference rules at the Democrats’ policy lunch last Tuesday, which encourage offices to use the NFL’s “Rooney Rule,” the requirement named after the Pittsburgh Steelers’ owner Dan Rooney that teams interview at least one minority candidate for head coaching vacancies. Democratic offices are now formally encouraged to consider at least one minority candidate when interviewing for an open position.

According to rule text shared with Democratic chiefs of staff and obtained by Roll Call, the rules would also cement the Senate Diversity Initiative that is run through the Democratic leader’s office. Former Sen. Harry Reid of Nevada launched the initiative, and his successor as minority leader, Charles E. Schumer, has supported its mission and hired a new director.

Read full story here.

'Unprecedented' White Supremacist Activity

Scott Jaschik
March 7, 2017

Report documents 107 incidents at colleges and universities in the current academic year.

White supremacist activity is seeing an upsurge on college campuses, primarily by outside groups seeking to attract attention or support among students, according to a report released Monday by the Anti-Defamation League, which tracks anti-Semitism and other forms of bigotry.

As of Monday, there have been 107 incidents of white supremacist activity on campuses during the current academic year -- most commonly leaflets or posters from white nationalist groups, the report says. Of these incidents, 65 have taken place in 2017. The level of activity in the last year is "unprecedented," the report says, compared to far fewer incidents in the past such that the group added the study this year.

Read full story here.

Failing to Keep Up

Rick Seltzer
Inside Higher Ed
March 2, 2017

Recent increases in number of minority administrators don't keep up with demographic shifts, but new study finds broad pay equity.

Look only at the trend line showing the slowly climbing percentage of higher education administrative positions held by minority leaders, and it appears colleges and universities are inching toward a day when their leaders reflect the diversity of their student bodies.

But add a few other pieces of data, and a very different picture takes shape. Look at the much faster growth in the proportion of minority college graduates and the growth in the U.S. minority population. It becomes clear that a substantial representation gap exists between the percentage of minority administrators and the makeup of the country. Further, the ethnic and racial makeup of administrators isn’t changing fast enough to keep up with broader demographic shifts -- the line showing the percentage of minority higher education leaders is not growing closer to lines that show the country's minority population or the percentage of minority college graduates.

Read full story here. 

Closing the Gap

Jake New
Inside Higher Ed
March 1, 2017

Black students graduate, on average, at a rate 22 percentage points lower than white students. Closing that gap will require individual institutions to improve completion rates and highly selective colleges to enroll more black students, a new report says.

Only 41 percent of black students who start college as first-time freshmen earn a bachelor’s degree within six years -- a rate more than 20 percentage point below that of white students.

While that’s the national average, a new report from the Education Trust, a nonprofit organization that advocates for minority and low-income students, suggests that the average gap at individual institutions is just two-thirds that wide. And that means if higher education collectively is going to close the completion gap, it will take more than just boosting graduation rates on individual campuses. Highly selective colleges with high graduation rates must also enroll more black students, the report concludes.

Read full story here. 

'We will not tolerate intimidation,' HCC president says of white power fliers on Holyoke campus

Michelle Williams
March 06, 2017

A white supremacist group recently sought to spread awareness of their beliefs at Holyoke Community College, campus officials said Monday.

In a message to the campus community, president Christina Royal said that the "group appears to organize around a defense of white interests and opposition to diversity, affirmative action and multiculturalism."

"We will not tolerate intimidation or threats, however direct or oblique, to the dignity, humanity and safety of any person or group. We value the diversity of our college, community, and the world in which we live," Royals said. "The free exchange of ideas is central to the function of higher education and the functioning of our democracy. However, it demands open communication in an inclusive environment in which all persons are treated with respect."

Read full story here.

Affirmative action in UT admissions faces new legal challenge

By Ralph K.M. Haurwitz - American-Statesman Staff
March 02, 2017

A new round of litigation challenging the consideration of race in admissions at the University of Texas is being organized by the same UT alumnus who took a similar case to the U.S. Supreme Court twice and lost.
This time, Edward Blum might have his sights set on the state courts of Texas rather than making another run at the federal courts. The U.S. Supreme Court upheld UT’s race-conscious admissions program by a 4-3 vote in June.

Blum, a former stockbroker and onetime candidate for Congress, is president of Students for Fair Admissions, a nonprofit group that on Thursday began inviting students who were rejected by UT to provide grades, test scores and a list of outside activities to help build a new legal case.

“A student’s race and ethnicity should not be factors that either harm or help that student to gain admission to a competitive university,” the group says on its website, studentsforfairadmissions.org, which notes that its more than 20,000 members oppose racial classifications and preferences in college admissions.

Read full story here.

How do we get more faculty of color?

By Sasha Pierre-Louis

AAAED

We are indeed becoming a diverse nation in that the United States is estimated to have a minority-majority population by 2044 according to census data. With the rise of the minority population, it is critical to sustain dialogs of cultural awareness and understanding as part of organizational climate. During a time where race relations are becoming strained in the aftermath of a divisive election cycle, there is great danger in becoming complacent with a work environment that does not fully guard and is inclusive of all protected groups.

            Organizations and individuals are fiercely advocating to diversify the pipeline of company leadership with universities being no different. With increased student activism, universities and colleges are compelled to understand that diversity among faculty is imperative for student success. The call to action has become a ripple effect for student activists across America demanding that at the forefront of the university 

            At the end of 2015, at least three institutions publicly announced that they will spend millions of dollars on initiatives to increase faculty diversity. Institutions must stay committed to not only recruitment but faculty retention efforts. High turnover and attrition rates 1among minority faculty do not reflect progression of increased diversity in faculty appointments but rather that universities “don’t want them.” The question then becomes is academia a welcoming place for all?

It is only in the last fifteen to twenty years that universities have started to collect data and produce diversity specific strategic goals to upturn minority faculty recruitment. Because of the national media’s pressure to recruit more minority faculty, a 2008 study by theAmerican Council on Education reported that while student diversity is on the rise, the rate at which faculty of color are hired is not. 

            The current state of faculty diversity does not accurately reflect today’s student demographics and this is the problem. Without faculty diversity, students are not able to gain an amalgam of perspectives on current issues and research nor are they able to interact and have visible role models that have-or do not have- similar backgrounds, cultures or upbringing. 

            It is critical that universities understand that in order to fully embody diversity there must be institutional change so that there is an inclusive learning environment and not simply the meeting of student demands. This, in turn, will create a world class institution. Diversity and inclusion efforts do not solely rely on recruitment but must include faculty retention.

In instances where faculty of color are not earning tenure track positions or their scholarship is not valued, many faculty of color do not feel connected or supported by their institution which consequently leads to being systemically pushed out or leaving for other career opportunities. A hostile work environment does not promote organizational outcomes; in this case, it is faculty and student success.

Although there is a growing pipeline of doctorates of color, they are not being hired into faculty positions that are visible and supportive of students. This is important to note because the lack of support and visibility for people of color is not unique to higher education. Racial minorities only hold 4.8 percent of leadership positions in Fortune 500 companies in comparison to their white colleagues. It is imperative that students, advocates and faculty stay vigilant in voicing their concerns for a representative faculty that reflects the populations it serves. Increased success with faculty recruitment must start by communicating with current faculty on the climate of their department and institution without fear of retaliation.

Understanding the reasons for faculty of color attrition and poor retention potentially engenders organizational and cultural shifts that support retaining faculty of color. The insight from current faculty can focus the diversity recruitment and retention efforts led by university officials. Delineating a strategic plan must happen to maintain the development of institutional diversity. It not only allows for accountability and transparency in retaining faculty of color and increasing campus diversity but also sets a precedent for an inclusive workplace environment.

Change in faculty diversity will not happen overnight but there are some steps in which departments and institutions can take to be successful in minority faculty recruitment and retention.

Be intentional in recruitment.

When seeking out diverse candidates, outreach is one key aspect to consider. A strategic plan that explicitly states the intended recruitment goals and outcomes will keep accountability for university leadership as well as enact a plan of action for the years to come. With the strategic plan in place, it is critical that the search for faculty begin well before the need for new faculty.

For example, recruiting should begin with outreach at the undergraduate and graduate level. As supported by university recruitment research, this creates a pool of talent that may be interested in faculty positions in the future. Not only should universities reach out to undergraduate and graduate students but also consider collaborating with minority serving institutions as a way to gain more exposure to students with different college experiences.

Highlight the Benefits.

During the hiring process, the search committee must be aware of the implicit biases they may have toward people of color versus other candidates. Search committee individuals may unintentionally highlight the cons of the work environment rather than underscore the pros. The pros of the job are typically what would influence all candidates to not only work but live in the local university community.

An example of highlighting the cons would be the lack of minority population and activities in the local community rather than the opportunity for further professional development and a great school system for families. While both may be equally important to the candidate, it should be explicitly up to the candidate on the deciding factor of accepting a faculty position.

Mentor new faculty.

The benefit of pairing new faculty with older faculty can create an organizational culture of support for development. It would provide faculty with opportunities to build a working relationship with other faculty as well as gain access to professional resources and understand the underlining culture of the department.

One reason faculty of color are not as successful as their white counterparts is lack of access to resources and capital. Clewell and Anderson emphasize in their research that minorities, specifically African Americans, were extremely limited to college access for decades thus resulting in navigational barriers to higher education and eventually professorship. To counter the access gap, the resources and knowledge that current faculty can share with new faculty of color could be the difference between being successful as a faculty member or not. Having a mentor to guide one through a new university setting can be very beneficial to a new faculty member. They can serve as an ally or a sponsor during difficult workplace situations.

Find meaning and value in their work.

Faculty of color and minorities add invaluable experiences, insights and scholarship to an institution and department. Although not all, it is likely that faculty of color are conducting and presenting research that revolves around their marginalized identity. At the start of the new millennium, Daufin’s study found that some of the main causes for low job satisfaction among faculty of color was because of undertones of discrimination and lack of support or understanding within their department. Departments must support their work in the same way as they would other faculty members by providing constructive feedback, opportunities for research grants and collaborating with other scholars in the field.

On average faculty of color spend more time developing students than their white counterpart by mentoring and advising students in ways that others do not. A diverse faculty workforce brings unique insights into the class room and are sometimes able to better relate to students and their needs. Minority faculty must be recognized and supported for their efforts in going beyond faculty expectations because this part of their job often goes unrewarded.

Diversity must be valued by everyone within an institution and viewed as an asset that increases the value of the university. Though the United States is becoming more diverse and have made legislative progress in equity, it is apparent that companies and institutions of higher education are in a deficit of a diverse workforce that accurately represent the people in which it serves. Increased diversity cannot successfully happen in a year; it takes time, effort and strategy.

For full list of references or further comments or questions please contact Sasha at spierrel@gmu.edu.