Name that Section - Frequently Used Education Code and Title 5 Sections for Community College Districts

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts

Districts are also required to ensure that “meaningful consideration” is given to whether

applicants for faculty and administrative positions demonstrate “sensitivity to and understanding

of the diverse academic, socioeconomic, cultural, disability and ethnic backgrounds of

community college students.”

173

We read this statutory requirement as establishing, by law, the

job-relatedness of “sensitivity to diversity” to all faculty and administrative positions. Indeed, on

June 17, 2016, the Chancellor’s Office issued Legal Opinion 16-04 regarding Equal Employment

Opportunity, which, among other things, made clear that this requirement functions as a

minimum qualification. The Opinion states that“[s]ince it is a job requirement, state law treats

‘sensitivity to diversity’ as similar to a minimum requirement.”

174

The regulations leave to

individual districts how to articulate and measure this criterion. What is clear post-Proposition

209, however, is that districts may not consider applicants’ ethnicity, race or gender in an effort

to satisfy the “sensitivity to diversity” criterion. Strategies for effectively utilizing this criterion

are discussed in Section 4 below.

ii. External Recruitment for All Permanent Openings

Districts are mandated to “actively recruit from both within and outside the district work force to

attract qualified applicants for all vacancies,”

175

which includes all vacant full-and part-time

openings in all job categories and classifications—classified, academic, categorical,

administrative and managerial. In-house or “promotional only” recruitment is prohibited to fill

any vacancy, except on an interim basis for the minimum time necessary (but no more than two

years) to allow for a full and open recruitment. A “vacancy” is not created, however, where

there is a reorganization or lateral transfer that does not result in a net increase in employees.

Nor is one created where a position is upgraded without a significant alteration in duties.

iii. Outreach to Maximize Diversity

The regulations also require that hiring procedures “shall include outreach designed to ensure

that all persons, including persons from monitored groups, are provided the opportunity to seek

employment with the district.” However, as discussed below in the section regarding lawful

hiring strategies, this dual obligation presents both a challenge and an opportunity. On the one

hand, the law and regulations make clear that selection criteria must be “blind” to applicants’

race, gender, ethnicity, etc. Yet, districts are also expected to develop and implement selection

procedures that have the effect of increasing the representation of “monitored groups.” And,

while the terminology has changed, it is clear that “monitored group” refers to any group based

on race, gender, ethnicity or other protected characteristics that are statistically underrepresented

in that position at the district. In that regard, the Chancellor’s recent EEO Legal Opinion also

makes clear that districts are expected to analyze their longitudinal hiring data for statistical

evidence of any “significantly underrepresented groups” and develop measures to address that

underrepresentation.

176

The conundrum is: how does one improve the representation of a

particular group while remaining “blind” to it?

iv. Pool Certification

Because pool certification was a required component of community college hiring procedures for

so long, we flag here that the 2013 update to the regulations has eliminated this requirement.