ASSIGNMENT – Legal Case 2

 

University and Community College System of Nevada v. Farmer

 

• Re-read the University case, “University and Community College System of Nevada v. Farmer in your textbook.
• Note the data under the case title: 113 Nev. 90, 930 P.2d 730 (Nev. Sup. Ct. 1997), cert. denied, 523 U.S. 1004 (March 9, 1998). What do these details signify?
• Study the case questions in the text at the end of the case. In addition, look through other material provided in Lecture Notes and in the Preface.
• Outline and submit the case, using the standard legal outline headings. (See “Sample Outline for Legal Cases” in Course Materials.)

 

OUTLINE THAT MUST BE FOLLOWED FOR ASSIGNMENT:

1. Case Name and Citation
   1. Include the court or agency deciding the case
   2. Include the citation, which tells where to find the reported decision.
2. Key Facts (in brief)
   1. Why – are parties before the court or agency?
   2. What – are the parties seeking?
3. Stage in the legal process (Trial Court, NLRB,Appeals Court, etc.)
   1. What happened at prior stages (if any) in the legal process?
4. Legal Issue (s)
   1. Include legal problem(s) raised by the facts of the dispute.
5. Reasoning of the Decision-Maker
   1. Why was dispute resolved the way it was?
   2. How did the decision-maker apply or reconcile the legal principles involved?

READING ARTICLE FOR OUTLINE:

 

Between 1989 and 1991, only one percent of the University

 

of Nevada’s full-time faculty were black, while eightyseven

 

to eighty-nine percent of the full-time faculty were

 

white; twenty-five to twenty-seven percent of the full-time

 

faculty were women. In order to remedy this racial imbalance,

 

the University instituted the “minority bonus

 

policy,” an unwritten amendment to its affirmative action

 

policy that allowed a department to hire an additional faculty

 

member following the initial placement of a minority

 

candidate.

 

In 1990, the University advertised for an impending

 

vacancy in the sociology department. The announcement

 

of the position vacancy emphasized a need for proficiency

 

in social psychology and mentioned a salary range between

 

$28,000.00 and $34,000.00, dependent upon experience

 

and qualifications. The University’s hiring guidelines

 

require departments to conduct more than one interview;

 

however, this procedure may be waived in certain cases.

 

Yvette Farmer was one of the three finalists chosen by the

 

search committee for the position but the University

 

obtained a waiver to interview only one candidate, Johnson

 

Makoba, a black African male. The department chair

 

recalled that the search committee ranked Makoba first

 

among the three finalists. Because of a perceived shortage

 

of black Ph.D. candidates, coupled with Makoba’s strong

 

academic achievements, the search committee sought

 

approval to make a job offer to Makoba at a salary of

 

$35,000.00, with an increase to $40,000.00 upon completing

 

his Ph.D. This initial offer exceeded the advertised salary

 

range for the position; even though Makoba had not

 

accepted any competing offers, the University justified its

 

offer as a method of preempting any other institutions from

 

hiring Makoba. Makoba accepted the job offer. Farmer was

 

subsequently hired by the University the following year;

 

the position for which she was hired was created under

 

the “minority bonus policy.” Her salary was set at

 

$31,000.00 and a $2,000.00 raise after completion of her

 

dissertation.

 

Farmer sued the University and Community College

 

System of Nevada (“the University”) claiming violations

 

of Title VII of the Civil Rights Act, the Equal Pay Act

 

and for breach of an employment contract. Farmer alleged

 

that despite the fact that she was more qualified, the University

 

hired a black male (Makoba) as an assistant professor

 

of sociology instead of her because of the University’s

 

affirmative action plan. After a trial on her claims, the trial

 

court jury awarded her $40,000 in damages, and the University

 

appealed to the Supreme Court of Nevada. The

 

issue on appeal was the legality of the University’s affirmative

 

action plan under both Title VII and the U.S.

 

Constitution.

 

Steffen, Chief Justice

 

… Farmer claims that she was more qualified for the position

 

initially offered to Makoba. However, the curriculum

 

vitae for both candidates revealed comparable strengths

 

with respect to their educational backgrounds, publishing,

 

areas of specialization, and teaching experience. The search

 

committee concluded that despite some inequalities, their

 

strengths and weaknesses complemented each other; hence,

 

as a result of the additional position created by the minority

 

bonus policy, the department hired Farmer one year

 

later.…

 

The University contends that the district court made a

 

substantial error of law by failing to enter a proposed jury

 

instruction which would have apprised the jury that Title

 

VII does not proscribe race-based affirmative action

 

144 Part 2 » Equal Employment Opportunity

 

programs designed to remedy the effects of past discrimination

 

against traditionally disadvantaged classes. The University

 

asserts that the district court’s rejection of the proposed

 

instruction left the jury with the impression that all racebased

 

affirmative action programs are proscribed.…

 

Farmer … asserts that the University’s unwritten minority

 

bonus policy contravenes its published affirmative action plan.

 

Finally, Farmer alleges that all race-based affirmative action

 

plans are proscribed under Title VII of the Civil Rights Act

 

as amended in 1991; therefore, the University discriminated

 

against her as a female, a protected class under Title VII.

 

Tension exists between the goals of affirmative action

 

and Title VII’s proscription against employment practices

 

which are motivated by considerations of race, religion,

 

sex, or national origin, because Congress failed to provide

 

a statutory exception for affirmative action under Title VII.

 

Until recently, the Supreme Court’s failure to achieve a

 

majority opinion in affirmative action cases has produced

 

schizophrenic results.…

 

United Steelworkers of America v. Weber is the seminal

 

case defining permissible voluntary affirmative action plans

 

[under Title VII].… Under Weber, a permissible voluntary

 

affirmative action plan must: (1) further Title VII’s statutory

 

purpose by “break[ing] down old patterns of racial segregation

 

and hierarchy” in “occupations which have been

 

traditionally closed to them”; (2) not “unnecessarily trammel

 

the interests of white employees”; (3) be “a temporary

 

measure; it is not intended to maintain racial balance, but

 

simply to eliminate a manifest racial imbalance.” …

 

Most recently, in Adarand Constructors, Inc. v. Pena, the

 

Supreme Court revisited [the issue of the constitutionality

 

of] affirmative action in the context of a minority set-aside

 

program in federal highway construction. In the 5–4 opinion,

 

the Court held that a reviewing court must apply strict

 

scrutiny analysis for all race-based affirmative action programs,

 

whether enacted by a federal, state, or local

 

entity.… [T]he Court explicitly stated “that federal racial

 

classifications, like those of a State, must serve a compelling

 

governmental interest, and must be narrowly tailored to

 

further that interest.” …

 

Here, in addition to considerations of race, the University

 

based its employment decision on such criteria as educational

 

background, publishing, teaching experience, and

 

areas of specialization. This satisfies [the previous cases’]

 

commands that race must be only one of several factors

 

used in evaluating applicants. We also view the desirability

 

of a racially diverse faculty as sufficiently analogous to the

 

constitutionally permissible attainment of a racially diverse

 

student body.…

 

The University’s affirmative action plan conforms to

 

the Weber factors [under Title VII]. The University’s

 

attempts to diversify its faculty by opening up positions traditionally

 

closed to minorities satisfies the first factor under

 

Weber. Second, the plan does not “unnecessarily trammel the

 

interests of white employees.” The University’s 1992 Affirmative

 

Action Report revealed that whites held eighty-seven to

 

eighty-nine percent of the full-time faculty positions. Finally,

 

with blacks occupying only one percent of the faculty positions,

 

it is clear that through its minority bonus policy, the

 

University attempted to attain, as opposed to maintain, a racial

 

balance.

 

The University’s affirmative action plan … [also] passes

 

constitutional muster. The University demonstrated that it

 

has a compelling interest in fostering a culturally and ethnically

 

diverse faculty. A failure to attract minority faculty

 

perpetuates the University’s white enclave and further limits

 

student exposure to multicultural diversity. Moreover, the

 

minority bonus policy is narrowly tailored to accelerate

 

racial and gender diversity. Through its affirmative action

 

policies, the University achieved greater racial and gender

 

diversity by hiring Makoba and Farmer. Of note is the

 

fact that Farmer’s position is a direct result of the minority

 

bonus policy.

 

Although Farmer contends that she was more qualified

 

for Makoba’s position, the search committee determined

 

that Makoba’s qualifications slightly exceeded Farmer’s.

 

The record, however, reveals that both candidates were

 

equal in most respects. Therefore, given the aspect of

 

subjectivity involved in choosing between candidates,

 

the University must be given the latitude to make its

 

own employment decisions provided that they are not

 

discriminatory.

 

[The court then rejected Farmer’s claim that the 1991

 

amendments to Title VII prohibit affirmative action.]

 

… we conclude that the jury was not equipped to

 

understand the necessary legal basis upon which it could

 

reach its factual conclusions concerning the legality of the

 

University’s affirmative action plan. Moreover, the undisputed

 

facts of this case warranted judgment in favor of

 

the University as a matter of law. Therefore, even if the

 

jury had been properly instructed, the district court should

 

have granted the University’s motion for judgment notwithstanding

 

the [jury’s] verdict. Reversal of the jury’s verdict

 

on the Title VII claim is therefore in order.

 

The University … has adopted a lawful race-conscious

 

affirmative action policy in order to remedy the effects of a

 

manifest racial imbalance in a traditionally segregated job

 

category.…

 

Chapter 6 » Title VII of the Civi l Rights Act and Race Discr imination 145

 

The affirmative action plan in the previous case was a voluntary plan; that is, it was not

 

imposed upon the employer by a court to remedy a finding of illegal discrimination. The

 

affirmative action plans in the Weber, Johnson, and Wygant cases were also voluntary

 

plans. Title VII specifically mentions affirmative action as a possible remedy available under

 

§706(g)(1). In Local 28, Sheet Metal Workers Int. Ass’n. v. EEOC,26 the Supreme Court held

 

that Title VII permits a court to require the adoption of an affirmative action program to

 

remedy “persistent or egregious discrimination.” The Court in U.S. v. Paradise27 upheld the

 

constitutionality of a judicially imposed affirmative action program to remedy race discrimination

 

in promotion decisions by the Alabama State Police.

 

ethical DILEMMA

 

You are the human resource manager for Wydget Corporation, a small manufacturing

 

company. Wydget’s assembly plant is located in an inner-city neighborhood,

 

and most of its production employees are African Americans and Hispanics, as well as

 

some Vietnamese and Laotians who live nearby. Wydget’s managers are white males

 

who sometimes have difficulty relating to the production workers. The board of directors

 

of Wydget is considering whether to establish a training program to groom production

 

workers for management positions, targeting women and minorities in particular. The

 

CEO has asked you to prepare a memo to guide the board of directors in its decision

 

about the training program. Should you establish such a program? How can you

 

encourage minority employees to enter the program without discouraging the white

 

employees? What criteria should be used for determining admission into the training

 

program? Address these issues in a short memo, explaining and supporting your

 

position.

 

The University has aggressively sought to achieve more

 

than employment neutrality by encouraging its departments

 

to hire qualified minorities, women, veterans, and handicapped

 

individuals. The minority bonus policy, albeit an

 

unwritten one, is merely a tool for achieving cultural diversity

 

and furthering the substantive goals of affirmative action.

 

For the reasons discussed above, the University’s affirmative

 

action policies pass constitutional muster. Farmer

 

has failed to raise any material facts or law which would

 

render the University’s affirmative action policy constitutionally

 

infirm.…

 

Young and Rose, JJ., concur.

 

Springer, J., dissenting [omitted]