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.

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2018 (c) Liebert Cassidy Whitmore 59