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The Republican College Professors’ Association sues on disparate impact grounds after political party affiliation is added to more such laws. They say that the college’s DEI recruitment policy explicitly favors classes of people among whom Republicans are extremely underrepresented (female academics, minorities), which is especially egregious when only 10% of faculty are Republicans and 70% are registered Democrats, a trend the new policies will only exacerbate. They claim the college’s internal DEI materials advocating for a ‘less white, male’ faculty show explicit and direct animus or hostility toward the Republican affiliation because of the above.
The college counters that white men are overrepresented on the faculty, that women and people of color are underrepresented, and that because both the vast majority of academics are Democrats and almost all Republican academics are white men, attempting to correct the balance in the party affiliation protected characteristic category would have an extreme negative disparate impact on minority and women applicants.
The Republican Professors’ Association responds that black people and women are also highly underrepresented among professors, particularly in STEM, and yet this makes no difference to the university’s extensive efforts to recruit and advance those applicants and candidates, and suggests that a special effort for Republicans would be no different.
The university is located in a blue enclave in a red state in a circuit that leans red. The court rules that disparate impact rules mean the college must make every effort to hire and promote Republicans in its diversity programs aimed at increasing the representation of underrepresented faculty. This is a legally questionable ruling, but it is made.
The college appeals to SCOTUS, arguing that the same rules would destroy all diversity programs everywhere if they went nationwide, at least in those entities subject to laws that allow disparate impact claims based on the political affiliation/registration category. How does Roberts rule?
"Political party affiliation is added to more such laws" is doing a lot of work here. There is not, to my knowledge, any serious push to do this on the Federal level. In states that have prohibitions on political party discrimination and disparate impact (i.e. California), I'm not aware of any attempt to challenge the doctrine.
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I think Roberts gladly swallows that poison pill and strikes dowm all use of disparate impact analysis as a violation of the 14th Amendment. Maybe he goes through the Casey stare decisis factors, acknowledging the importance of aggressive civil rights legislation in the 60s and 70s, but explaining that the world is different now, and what potentially could have been justified back then is clearly now both unnecessary and unworkable. I think the decision would look a lot like Shelby County, to be honest.
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He rules that the Republican Professors' Association lacks standing to challenge the rule, and that the case would have to be brought by an applicant that was specifically affected by the rule.
The Republican Professors Association represents as in many of these cases a Republican professor not hired at the university after a final round interview and mandatory diversity statement submission.
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Roberts overturns the Circuit Court decision, on the grounds that race, as a Federally protected class, trumps political affiliation (which is not), and therefore the college's interest in not having a disparate impact on protected class members trumps the college's requirement to not have disparate impact on Republicans.
Suppose that a new regulatory bill affecting universities passes in congress in which political affiliation is explicitly described as a protected class (as it has been in some federal bipartisan AI efforts). What then?
My first guess would be a ruling that, applying Strauder, the portions of the law that could negatively impact minorities based on "suspect classifications" would need to satisfy elevated or even strict scrutiny, and would fail to do so, but that the portions which allowed discrimination on other categories would satisfy rational basis and be permissible.
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That's not going to happen. If it somehow did anyway, Roberts would uphold the circuit court decision for that case, but include language about how universities must balance the interests of the protected classes and rule that because they didn't make a good showing of doing so this time, they're getting slapped down. Universities would in the future do some lip service about how they did some balancing and really truly this helps more for race than it hurts for political affiliation, but otherwise change nothing.
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