Will Employment Law Help Break the Higher Education Monopoly?

Will Employment Law Help Break the Higher Education Monopoly?
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America’s colleges and universities are, with good reason, under attack for promoting an expensive postsecondary education “bundle” that is increasingly unmoored from the demands of the workforce.  Bipartisan legislation introduced by Senators Bennet and Rubio now aims to bust the accreditation cartel. But like the music and television industries, entrenched colleges and universities have, to date, fought the unbundling of a lucrative $500 billion revenue stream.

For the most part, progressives continue to defend the current system, with free college now core to Democratic Party orthodoxy. But in an ironic twist, the unbundling of higher education may be fueled less by private-sector pressure and would-be disruptors than by decades of progressive policies.

Since the Civil Rights Act of 1964, employers have been prohibited from engaging in “different rates” of hiring or promotion based on race, sex, or origin. Employment policies themselves need not be discriminatory; judges consider whether hiring practices have an adverse impact. Practices are deemed illegal if they result in a deviation of 20% or more, in relation to the advantaged group. 

Each year, the Equal Employment Opportunity Commission sends tens of thousands of letters to employers charging them with adverse impact discrimination. Many result from complaints about background checks or assessments that may have an adverse impact on the hiring process. None, however, address college degree requirements, despite the fact that such requirements are increasingly common – including for jobs that may not have required them in the past. According to one estimate, although 65% of executive assistant positions now require bachelor degrees, less than 20% of current EAs have a degree. Across all sectors, similar “credential gaps” range from 10-40%.  

On their face, college degree requirements invariably fail the 20% deviation adverse impact test: 42.9% of whites ages 25-29 have bachelor’s degrees compared with just 22.7% of African-American and 18.7% of Hispanics. So one would think college degree requirements in job descriptions would be ripe for EEOC action. According to Associate Dean Charles Sullivan, an employment law expert at Seton Hall Law School, “Remarkably, the answer is almost never. No one is interested in upsetting this apple cart.”

When an enterprising lawyer – or state’s attorney general – finally decides to bring such a case, employers will attempt to show that the ratios of new hires to applicants don’t diverge by more than 20% for any group. That’s true, but only because college degree requirements keep candidates without degrees from applying to good jobs. Proving adverse impact of college degree requirements will require the demonstration that employment policies actually keep qualified candidates from applying. According to Sullivan, “such a case will require experts to prove the statistical case. But it can be done.”

Employers will, in turn, argue that degree requirements are “job-related” and “consistent with business necessity.” One of the few cases on the topic, for example, found that a library’s requirement that applicants possess a Master’s degree in library science was appropriate. Although such an argument may have merit in the case of specialized and graduate degrees, recent data suggests that technical skills now outnumber all other skills in job descriptions across nearly all industries. At a time when university coursework hasn’t kept pace with the rapidly evolving technical demands of our modern workforce, it seems less and less likely that pervasive college degree requirements will withstand legal scrutiny.

As a final defense, employers may argue that they lack capacity to filter candidates in the absence of the objective degree requirement. But this fails to ring true when tens of thousands of American job-seekers are availing themselves of bootcamps and other degree alternatives. LinkedIn Learning recently reported that project management certifications are on the rise, resulting in as much as a 20% salary bump for the so-called “poor man’s MBA.” As an array of microcredentials and digital portfolios signal candidate competencies and Applicant Tracking Systems sort candidates using an array of criteria, alternative hiring measures abound.

And so American employers, committed to using the degree as a crude hiring filter, will be left with “convention” as last defense – a notably unsuccessful argument in anti-discrimination law. 

When a case challenging rampant college degree requirements is finally brought – and won – it will not only be a civil rights victory, it will also propel the ‘Great Unbundling’ of American higher education – a major victory for champions of economic mobility and economic growth as more Americans are considered for employment according to their capabilities rather than their pedigrees.

Ryan Craig is author of College Disrupted: The Great Unbundling of Higher Education, and Managing Director of University Ventures, a firm reimagining the future of higher education and creating new pathways from education to employment.

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