Ethical Educator
A Witness to Discrimination
School Administrator, November 2018


Scenario: In the midst of a hiring process for a principal, the superintendent learns that a candidate who is not being recommended for appointment experienced what the candidate viewed as discrimination during the job pursuit. The superintendent expected her to file a lawsuit if she didn’t get the job — and that happened. The superintendent has been called as a witness and must decide whether to support the district or admit the district made a mistake.



Meira Levinson: 
This is a false dichotomy. If the school district made a mistake, then the most supportive approach the superintendent can take is to admit the mistake, compensate the candidate or in some other way make amends. The district might reform job-hiring practices and or instituting new training programs for hiring committees to ensure the district will discriminate less in the future.

Taking steps to right the wrong both with respect to the individual and with respect to the system is both morally defensible and pragmatically desirable.

Employment discrimination hurts all people – not just the person who is discriminated against, but also his or her potential colleagues, students and community members. It is thus in the district’s best interest that the superintendent moves to eliminate discriminatory policies, practices and culture in the district.
 
 
Max McGee:
While it is not clear whether the defense or prosecution called the superintendent as a witness, it is clear she must answer any and all questions factually. The scenario says she “expected” the candidate to file a lawsuit, yet we don’t know the basis for the expectations. Perhaps it was because the candidate had experienced discrimination during the hiring process; perhaps it was because she had filed suits in other districts where she did not get a job for which she applied; perhaps it was the superintendent’s own racial bias; or perhaps it was some combination of all of these.
 
It appears, however, the superintendent thinks the district made some mistake and if asked, she must admit it openly, honestly and without qualification. It is the only ethical and legal choice. In addition, she should explain what the district has done to rectify the process that led to the discriminatory behavior. In this way, she is both admitting a mistake and supporting the district.
 
Finally, the superintendent must be proactive and open a Title IX investigation regardless of the lawsuit. In fact, this should be done before a lawsuit is filed or a case is brought to court. If the investigation shows that there was discrimination — intentional or not — corrective action needs to be taken.
 
 
Maggie Lopez:
The superintendent and school district were in error by not following up once they were made aware of the allegation of perceived discrimination by the interviewee who didn’t get the job. The concern should have been investigated. Had this occurred prior to the completion of the hiring process, there may not have been a lawsuit filed against the district. At the very least, there would either have been the opportunity to restart the process if inappropriate protocols for interviewing and hiring were used or to clarify with the candidate that the protocols used were appropriate and legal. When leaders become aware of allegations of inappropriate behaviors on the part of our staff or students, it is our responsibility to address them immediately.

The superintendent is a steward of the community and a role model, as well as the school district leader. We ask students to tell school staff when they see or experience something they believe to be wrong, when we as leaders become aware of a potential misstep, we too must address it. As the organization’s chief who answers to the school board, students and community, the superintendent, once aware of the serious allegation, carries the responsibility to intervene. The superintendent should not have waited until the issue became a legal challenge or a lawsuit.
 
Shelley Berman:
The superintendent must speak the truth when testifying. However, the truth may be more complex than simply agreeing that the district made a mistake. Hiring is a complex, multi-tiered process. Although a candidate may construe a question, comment or action to be discriminatory, there could be differing perspectives on its meaning and intent. In this case, the plaintiff must prove that there was a discriminatory motive to the question, comment or action or a pattern of discrimination within the school or district.

During the hiring process, the superintendent had a responsibility to investigate whether the search had been compromised and whether discriminatory action had occurred. Based on that investigation, the superintendent had a choice to move forward or to stop the search and then restart it in a way that ensured a clean process.

In this case, the superintendent moved forward in spite of knowing that the candidate might view the process to be discriminatory. Therefore, the superintendent likely noted other factors that made the candidate’s perspective incomplete or flawed. The comment, question or action in question could have reflected a motivation other than the intent to discriminate. In particular, a review of the applicants’ qualifications could have indicated that other candidates were stronger and better qualified, providing a legitimate and non-discriminatory reason for hiring another individual. In addition, there may be no pattern or history of discrimination toward the candidate’s protected class at that school or in the district.

Upon learning of the candidate’s concerns during the hiring process, the superintendent should have sought immediate guidance from the district’s attorney. If the decision in this case was to move forward, the superintendent can testify to factors other than discrimination toward an individual of a legally protected class that were critical to making the determination of whom to hire.
 
 
 Each month, School Administrator draws on actual circumstances to raise an ethical decision-making dilemma in K-12 education. Our distinguished panelists provide their own resolutions to each dilemma. Do you have a suggestion for a dilemma to be considered? Send it to: magazine@aasa.org. 

The Ethical Educator panel consists of Shelley Berman, superintendent, Andover, Mass.; Meira Levinson, professor of education, Harvard University, and author of Dilemmas of Educational Ethics: Cases and Commentaries; Maggie Lopez, retired superintendent in Colorado Springs, Colo.; and Glenn "Max" McGee, a former superintendent and regional president of ECRA Group in Schaumburg, Ill.