Carl F. Horowitz wrote this story for the National Legal and Policy Center. It appears here with the author's permission. -- The Editors.
Imagine an America in which employers faced steep fines for failing to interview a sufficient number of minority candidates for a vacant management slot prior to making a hiring decision. Even in this day and age, where diversity rules, that might seem a far-fetched scenario. Yet for the last half-dozen years, this has been the way the National Football League has operated. And its advocates are seeking ways to expand this regime to a variety of venues – and with a strong assist from government.
Welcome to the “Rooney Rule.” If you’re not familiar with it yet, you should be. Finalized in 2003 and named after Pittsburgh Steelers owner Dan Rooney, this NFL by-law requires each team to interview at least one minority (for all intents and purposes, black) candidate in the event of an opening for head coach. The rule came about the previous fall when two “civil-rights” attorneys, Johnnie Cochran and Cyrus Mehri, circulated a document titled, “Black Coaches in the National Football League: Superior Performance, Inferior Opportunities,” prepared by the latter’s Washington, D.C., litigation shop, Mehri & Skalet. The pair gave the NFL an ultimatum: Hire more black coaches or face a major lawsuit. Considering the source, this was more than just talk. The now-deceased Cochran, of course, in 1995 had rocketed to superstar status following his successful criminal defense of O.J. Simpson. The lesser-known Mehri, meanwhile, had led shakedowns of Texaco and Coca-Cola worth a combined nearly $370 million in out-of-court settlements.
The NFL hastily assembled a “Committee on Work Place Diversity.” Chaired by Rooney, the committee would determine the necessity and nature of remedial action. In December 2002, the group issued its recommendations, most crucially a requirement that “any club seeking to hire a head coach will interview one or more minority applicants for that position.” This “Rooney Rule” the following year became binding on all NFL teams. Any team found in violation would be subject to penalties at the Commissioner’s discretion.
By 2006, the number of teams with black head coaches rose from two to seven, and then leveled off. Predictably unsatisfied (or scared), team owners this June announced they had voted to extend the rule to cover senior front-office vacancies. NFL Commissioner Roger Goodell pledged his full support:
The recommendation…recognizes that this process has worked well in the context of head coaches and that clubs have deservedly received considerable positive recognition for their efforts in this respect. The more thorough the search, the more likely clubs are to find the right candidates and to be able to groom future leaders from within their organizations.
The NFL may not be the only sports entity to impose an implicit racial quota system on their personnel searches. The pressure is on. The Black Coaches Association (BCA), for one, is demanding that the National Collegiate Athletic Association adopt the Rooney Rule idea for hiring Division I football head coaches. In conjunction with its “report card,” BCA Executive Director Floyd Keith has threatened legal action if more minorities aren’t hired. There is no reason either why this concept can’t be imposed upon basketball, baseball or some other sport with a large black audience.
Certain state legislators aren’t waiting for lawsuits. This January, Oregon Democratic State Representative Mitch Greenlick (Portland) introduced House Bill 3118 to require public universities to make a good-faith attempt to interview at least one minority candidate for any sports head coach (not just football) or athletic director vacancy. On June 23, the Oregon House passed the legislation by 52-0, affirming a Senate version approved days earlier by 29-0. The bill at this writing awaits the certain signature of Democratic Governor Ted Kulongoski.
The origin of the bill reveals more than a little about how affirmative-action zealotry can cut across racial lines. Roughly two years ago, a white graduate student at Portland State University, Sam Sachs, was dismayed that his school hired a white male, Jerry Glanville, to run its football program. That the gregarious and well-liked Glanville had extensive NFL experience with head coaching stints with the Houston Oilers (now the Tennessee Titans) and the Atlanta Falcons apparently mattered little to Sachs, a self-described “diversity advocate” with an undergraduate degree in black studies. Since no blacks had been interviewed for the job, he saw injustice lurking. Inspired by the Rooney Rule, he wrote Rep. Greenlick asking him to sponsor appropriate legislation. In a recent interview with ESPN, Sachs, an ex-fullback with Western Oregon University, remarked, “I felt like at some point we have to stop complaining and try to be part of the solution.” Following the unanimous Oregon House vote, he crowed: “I have never been prouder to be an Oregonian than I am now,” he said. “The success of House Bill 3118 shows that a citizen’s idea to make Oregon a leader in diversity can become a reality.”
Oregon may be the first state to codify the Rooney Rule, but it’s not likely the last. In Alabama, State Democratic Representative John Rogers (Birmingham), a black, has requested a copy of the Oregon legislation to use as a model for his own similar bill. “I’ll tell you why I’m doing it,” Rogers told a reporter for the Birmingham News. “There seems to be a disenfranchisement when it comes to hiring black coaches.” He and other Rooney Rule advocates still seethe over the University of Alabama’s 2003 hiring of Mike Shula, son of NFL coaching great Don Shula, as head football coach instead of former Crimson Tide player and assistant coach (and later NFL assistant coach) Sylvester Croom, a black. Jesse Jackson was so incensed that he called for an investigation into hiring practices at the University of Alabama and other Southeastern Conference athletic departments. Rooney Rule supporters also cite Auburn University’s hiring last December of Iowa State University head coach (and former Auburn defensive coordinator) Gene Chizik, a white, over State University of New York at Buffalo black head coach Turner Gill, the latter a starting quarterback at the University of Nebraska during the early Eighties. Former NBA superstar Charles Barkley, an Auburn alumnus, denounced the decision as racially-motivated.
For the record, Croom and Gill had been interviewed for their respective positions. Croom went on to take the head coaching job at Mississippi State until stepping down immediately following last season; Gill has remained at SUNY-Buffalo.
Meanwhile in New Jersey, State Senate President and former Acting Governor Richard Codey this January introduced a resolution calling upon the NCAA to adopt the Rooney Rule for college football. The resolution stated: “Adopting the Rooney Rule will greatly benefit college football programs by providing teams with a pool of talented, dedicated and competitive head coach applicants that has gone virtually untapped and will result in a leadership of college football programs that more adequately reflects the diversity of the student-athletes in those programs.” The NCAA responded it lacks the authority to police member schools in this way, but, significantly, expressed its commitment to promoting “an inclusive culture that fosters equitable participation for student-athletes and career opportunities for coaches and administrators from diverse backgrounds.” This, of course, is the language of affirmative action, so it may be only a matter of time before the association comes around.
Rooney Rule defenders argue that the mandate combines the best of both worlds, opening doors for qualified blacks but without mandating hiring decisions. It’s the least football can do, they say, given that the majority of NFL players are now black and that black-coached teams, such the Pittsburgh Steelers under Mike Tomlin, have been proven winners. Unfortunately, this view leaves out more than it explains.
The notion that the Rooney Rule isn’t coercive because it applies to interviewing rather than hiring is spectacularly naive. Think about it: why would an organization’s governing body go to the trouble of mandating interviews with black candidates if it didn’t anticipate, and expect, frequent job offers to follow? Anyone with common sense as well as an understanding of the affirmative-action mindset understands that forcing teams to take race into account during the interview process is a proxy for forcing teams – at least a certain percentage of them – to take race into account when hiring. On a practical level, any decision to hire a white, however qualified, instantly will raise suspicions that interviews with black candidates were a sham, mere window dressing to avoid a fine or a lawsuit.
Indeed, things came to a head early on. In 2003, when Detroit Lions President Matt Millen hired a white, Steve Mariucci, as head coach, then-NFL Commissioner Paul Tagliabue slapped his team with a $200,000 fine. Prompting this drastic action was the fact that Millen had announced his intention to hire Mariucci in advance, thus discouraging five already-contacted black candidates from coming in for interviews. Worse yet, noted affirmative action advocates, Mariucci’s immediate former employer, the San Francisco 49ers, hired veteran college and pro coach Dennis Erickson over former Minnesota Vikings head coach Dennis Green, a black man. Erickson, critics said, was a mere “recycled” coach who benefited from white skin privilege. The Washington Post and ESPN sports columnist Michael Wilbon, who is black, stated: “If [the 49ers] had Erickson in their sights all along and talked to [black coaches] as a show, they violated both the letter and the spirit of the Rooney Rule.”
In hindsight, these cases made the Rooney Rule look good. The Lions under Mariucci for three years, and in the years since, couldn’t reverse their losing ways. In 2008, they suffered the ultimate indignity of going 0-16. And the 49ers under Erickson (and successor Mike Nolan) were a losing franchise; last year’s midseason hiring of a black, former Chicago Bears linebacker Mike Singletary, turned things around. But at the time they occurred, the hiring decisions made sense. Steve Mariucci during his six seasons at the helm of the 49ers (1997-2002) racked up a 57-39 (.594) combined regular season won-lost record, bringing his team into the playoffs four times, and with a 12-4 record or better in three of those seasons. His departure – actually a firing, following a postseason blowup with team General Manager Terry Donahue – placed him atop any number of short lists. As for Dennis Erickson, currently head coach at Arizona State, he had been one of the NCAA’s most successful coaches, with super stints at the helm of Miami (Fla.) and Oregon State; he’d also led the NFL’s Seattle Seahawks to respectable performances during 1995-98. If “recycled” is a cynic’s way of saying “experienced,” then Erickson brought a good deal of experience to the table. Dennis Green, in his own right, had amassed an impressive track record, producing a .610 cumulative winning percentage during his decade with the Vikings (though subsequently, a .333 winning percentage with the Arizona Cardinals). But the idea that these hiring decisions justify a top-to-bottom search for “racism” is both futile and tyrannical. Nobody can predict the outcome of a hiring decision.
National Review Online’s Jay Nordlinger, observing these brouhahas, explained why NFL teams necessarily are faced with a classic “heads-I-win, tails-you-lose” dilemma:
How is one to assess the mental picture of NFL owners, presidents, and GMs? Can they be found out in thought crimes, and convicted of them?...NFL hirers are in a helluva dilemma. If they hire a white coach, they may be seen as social villains. If they hire a black coach: applause. But again, if they pass over the black coach: the deepest suspicion, if not outright boos…We’re now in the realm of impression. Perhaps the brave new social engineers should stop pussyfootin’ around with this interviewing stuff and simply mandate the hiring of black head coaches – a certain percentage of the slots in the league. Say, half. Such a scenario is not unimaginable, for sometime in the future, and it would have the benefit of cutting to the chase.
There is no foolproof way to determine whether a team’s management has interviewed black candidates “in good faith” or has gone through the motions. A decision to hire, like a decision to promote or fire, inevitably involves subjective factors. And once having made the decision, no team should have to provide a groveling public explanation with a promise to do better. Never mind the fact that grooming someone for head coach takes years of hands-on development, typically taking the aspirant from position (e.g., running backs) coach to coordinator to head coach. Deciding upon whom to hire involves gut instincts about commitment, compatibility, character and other intangibles. Race doesn’t necessarily have anything to do with it. As the late San Francisco 49ers head coach (and three-time Super Bowl winner) Bill Walsh noted, “(T)he hiring of coaches is…a very fraternal thing. You end up calling friends, and the typical coach has not been exposed to many black coaches.”
Most people would term what Walsh spoke of as “networking.” NFL affirmative-action enthusiasts, among them Patton Boggs partner Douglas Proxmire in a December 2008 paper for the American Constitution Society for Law and Policy, call it “unconscious bias.” Complaining about the “wide disparity” between “the percentage of African-American players and the percentage of African-American head coaches,” Proxmire argued that the NFL should expand the Rooney Rule’s application to hire more blacks as team presidents, general managers and personnel directors. The NFL, needless to say, went a long way in obliging him six months later.
Rooney Rule enthusiasts point to their ace in the hole: results. As the number of black coaches has increased, the number of black success stories also has increased, and possibly disproportionately. The 2007 Superbowl (i.e., the culmination of the 2006 season), as commentators ceaselessly noted, involved a “historic” match-up between two black head coaches, the Indianapolis Colts’ Tony Dungy and the Chicago Bears’ Lovie Smith. And young Mike Tomlin, only in his second season as Steelers head coach, took his team to a Superbowl win this February in a 27-23 thriller over the Arizona Cardinals. The intended message is clear: Put a black in charge and watch your team become a winner.
But did such successes result from the Rooney Rule? Dungy had established a strong track record with the Tampa Bay Buccaneers and then with the Colts (at least in 2002) before the rule was adopted. Lovie Smith, who had been linebackers coach under Dungy at Tampa Bay, was a natural candidate. And Tomlin (another Dungy protégé at Tampa Bay), contrary to common perception, was not a beneficiary. His boss, Dan Rooney, the man whose name adorns the Rooney Rule, asserted as much when he hired him in 2007. “Let me say this: Mike Tomlin was not part of the Rooney Rule,” Rooney said. “We had already interviewed Ron Rivera [then the Bears’ defensive coordinator], and so that fulfilled the obligation. We went on, had heard about Mike, called him in and talked to him. He was very impressive.” That’s the way things should work. The whole purpose of any interview process is for an employer to be impressed. Why should an NFL team operate under a sword of an expensive fine or lawsuit?
Unfortunately, the Rooney Rule, hatched in a fit of egalitarian fervor and fear of running afoul of it, isn’t going away. If anything, it faces a bright future given its wide range of potential applications to employment settings, from corporations to government agencies. Congress lately is feeling heat, as several members, lobbyists and aides are demanding adoption of a Rooney Rule equivalent for interviewing staffers. Advocates are angered that only two Senate chiefs of staff are members of a minority group, while only five white members of the House of Representatives have black chiefs of staff. Apparently, these civil rights paladins see nothing wrong with black Congressmen “overlooking” whites for similar positions.
Affirmative action enthusiasts will never be satisfied with mere outreach. In their minds, efforts are meaningless without enforceable results. And in the end, it is government, whether through laws, regulations, court decisions or consent decrees, that enforces. The Rooney Rule may well represent the most potent, and insidious, attempt yet devised to mandate hiring by race in order to combat the phantasm of “bias.”
Carl F. Horowitz wrote this story for the National Legal and Policy Center. It appears here with the author's permission.