The Supreme Court upholds UNR's racial spoils systemA counter-productive educational policy in Nevada's university system
by D. Dowd Muska
n recent years the nations multi-layered system of racial preferences has suffered setback after setback.
Polls, which once indicated support for policies intended to redress past racial injustice, now show Americans are overwhelmingly opposed to granting preferential treatment to individuals based solely on their race.
Courts have begun to mirror this shift in public mood. Significant rulings, including Richmond v. Croson, Adarand v. Pena and Hopwood v. State of Texas, have begun to chip away at the shaky legal underpinning of racial preferences. In 1996 the citizens of the most populous state voted to ban the use of preferences in public employment, education and contracting. Organizers of Californias ban are currently working to place similar initiatives on ballots in dozens of other states.
But race-based hiring in Nevadas university system is alive and well. In March the U.S. Supreme Court declined to consider Farmer v. The University and Community College System of Nevada, perhaps the best remaining hope true civil rights activists had of striking a blow against racial preferences during the courts present term. By refusing to hear the case, the High Court not only allowed the universitys preferential hiring policies to continue, it left employers across the country free to discriminate in the name of "diversity."
Is Black Really Better?
In 1990 Yvette Farmer, then a Ph.D. candidate in sociology, applied for a teaching position at the University of Nevada, Reno. She was among the three finalists selected by the sociology departments search committee. Johnson Makoba, a recent Ugandan immigrant, was another. Although Farmer would later claim her qualifications were superior to Makobas, the search committee concluded that the two candidates had roughly the same strengths and weaknesses (last year the Nevada Supreme Court agreed that their credentials were "equal in most respects").
The sociology department found a simple way to settle the quandary of selecting between two equally qualified job-seekers. It chose to make use of the universitys "minority bonus policy," an unwritten amendment to UNRs affirmative action plan designed to increase the number of minority faculty members on campus. Under the policy each department is allowed to hire an additional professor for each open position filled by a minority. (The university instituted the minority bonus policy as a means of bringing racial diversity to a faculty that was one percent black.) Diversity, it should be noted, is the only justification the university provided for adopting a policy which judged job applicants by their raceUNR has never claimed its use of racial preferences is necessary to remedy past discrimination.
Although university hiring guidelines require all departments to interview more than one candidate for an opening, the search committee obtained a waiver from this rule, and interviewed only Makoba. He was given the teaching position and even given a salary greater than the one advertised. (Makobaa likable mandoes not appear comfortable with being the poster child for diversity at UNR. He told Nevada Journal he wasnt pleased that the Farmer case became "larger than life.") Ironically, the discrimination Farmer faced when she first applied for a job at UNR would directly benefit her one year later. In 1991, due to the minority bonus policy, the sociology department was free to hire another professor. This time Farmer was selectedprompting one critic to note that since she owed her position to the universitys racial spoils system, Farmer had little right to later complain about unequal treatment. Columnist Vin Suprynowicz likened Farmers case to "suing the Publishers Clearing House because you only won second prize." Suprynowiczs point is irrefutable, but many prospective employees who never didand never willbenefit from race-based hiring practices continue to face discrimination in the name of diversity. Farmers alleged ingratitude notwithstanding, her case did have the potential to establish, once and for all, whether diversity schemes meet constitutional scrutiny.
Unequal Pay for Equal Work
Yvette Farmer and Johnson Makoba were now colleagues and in time they even became friends. But Farmer soon learned that her salary was substantially lower than Makobasby 1993 the gap had grown to over $10,000. And this despite the fact that both teachers, in the words of a Farmer attorney, "were hired to perform the same task, teaching sociology."
When Farmer asked about the pay disparity Lyle Warner, then the chairman of the sociology department, told her, "Hes black and youre not."
"He was just being honest, but I was shocked he would even say that," Farmer told the Los Angeles Times, adding that other UNR officials including College of Liberal Arts Dean Ann Ronald offered the same explanation. Unwilling to accept such a brazen defense of unfairness, Farmer filed a complaint with Nevadas Equal Rights Commission. When the Commission dismissed her complaint, Farmer decided to take UNR to court.
In January 1993 she filed an employment discrimination suit in Washoe County District Court, charging UNR with violations of the Equal Pay Act and Title VII of the Civil Rights Act of 1964. She further charged that the university breached its employment contract as well as the "implied covenant of good faith and fair dealing."
"The universitys defense," wrote Center for Equal Opportunity General Counsel Roger Clegg in the Wall Street Journal, "was breathtakingly direct." Echoing the explanation Farmer had been given all along, it denied that gender had anything to do with her lower salary, and asserted that Makobas higher pay was due entirely to his race. "That is," wrote Boris Slutsky of Students Against Discrimination and Preferences, "Ms. Farmer was penalized because she was white (which is no problem), and not, heaven forbid, because she was a woman (which would have been illegal and downright awful)."
Black professors, the university insisted, are simply in demand more than white professors. Thus, UNR needed to pay Makoba more in order to avoid a bidding war with other employers. Minority applicants, Nevadas Supreme Court would later agree, "who are in short supply can command premium salaries in the open market."
Victory, Then Defeat
A jury didnt buy the universitys claims and it awarded Farmer $40,000 in damages. Apparently there was little disagreement among the jurors. After the verdict the foreman, who is black, called Farmers husband to express the support of the panel.
"It felt so good to see that people judged the case based on the facts, not on their own race or gender," Farmer recently told Seattle Times columnist Michelle Malkin. (Farmer left UNR in 1995 and now lives in the Seattle area.) The university appealed the verdict, and after being denied a rehearing before the district court took its case to Nevadas Supreme Court. Nevadas justices agreed to hear the case and handed down a sharply divided opinion in January 1997.
It was entirely appropriate, a slim majority of Nevadas justices held, for UNR to grant preferential treatment to a black man at the expense of a white woman. Referring to criteria established by the U.S. Supreme Court in United Steelworkers of America v. Weber (1979), Chief Justice Thomas Steffen ruled that UNRs actions passed constitutional muster. Writing for the majority, he held that the university did indeed have "a compelling interest in fostering a culturally and ethnically diverse faculty." Steffen asserted the minority bonus policy did not violate Webers admonition that preferential hiring policies not "unnecessarily trammel the interests of white employees." Steffen went on to praise the university for promoting diversity: "A failure to attract minority faculty perpetuates the universitys white enclave and further limits student exposure to multicultural diversity."
In a terse dissent, Justice Charles Springer scolded Steffen for his broad interpretation of Weber, calling UNRs minority bonus policy clearly discriminatory. He cited Adarand v. Pena (1995), a more recent Supreme Court opinion which placed considerable restrictions on the use of racial preferences. Springer wrote: " it is now firmly established that all racially discriminatory state actions, benign or otherwise, are permissible only if they are necessary to meet a compelling state interest." He found that UNRs minority bonus policy met no compelling interest for the state of Nevada. "I do not think," the justice wrote, "that the universitys affirmative action program passes [Adarands] strict standard of constitutional review; and I find no authority for the majoritys assertions that fostering a culturally and ethnically diverse faculty is a sufficiently compelling reason for intentional racial discrimination by Nevadas public university."
Even if Makobas hiring was a permissible case of remedial affirmative action, Springer wrote, " it is difficult to see how hiring a recent emigrant from Africa would be an appropriate remedy for prior discrimination against black Americans." Springer went on to cite Hopwood v. State of Texas, a 1996 ruling by the Fifth Circuit Court of Appeals. Hopwood specifically addressed diversity-based discrimination, finding the practice unconstitutional. "I turn to Hopwood and conclude that cultural and ethnic diversity simply cannot justify the universitys undisguised racial discrimination in the pursuit of a more racially heterogeneous faculty."
Washing Their Hands of Discrimination
Without the resources to continue to fight, Yvette Farmer was prepared to let the Nevada Supreme Courts 3 to 2 ruling against her stand. But her case came to the attention of the Pacific Legal Foundation (PLF) and the Sacramento-based public interest law firm called Farmer to offer assistance. Less than one month after the courts ruling, PLF attorney Mark Gallagher asked Nevadas justices to reconsider their decision, pending the outcome of a similar case in New Jersey, Piscataway v. Taxman.
Sharon Taxman, a white teacher, was fired in 1989 by the Piscataway Board of Education. The Board, faced with a mandatory layoff, chose to terminate Taxman rather than Debra Williams, a black teacher.
The Board made its decision based on its desire to retain Williams, the only black faculty member in the Piscataway High Schools business department. Taxman sued and eventually won before the Third Circuit Court of Appeals. The school board appealed, and a few months after the Nevada Supreme Courts ruling against Yvette Farmer, the U.S. Supreme Court chose to hear oral arguments in Piscataway.
Panicked that the case might serve as diversitys death knell, what legal scholar Terry Eastland calls "a hastily devised coalition" of leftist civil lights groups acted to keep the High Court from hearing Piscataway. Although settlements in cases the Supreme Court has decided to hear are extremely rare, the coalition offered a huge sum ($433,500) to Sharon Taxman, and she accepted.
Defenders of racial preferences rejoiced that Piscataway was behind them, but as Eastland noted, "no amount of spin could obscure the obvious fact that civil rights liberals did not want the court to consider whether the law really does permit an employer to discriminate in the name of diversity."
On November 21, the same day the Piscataway settlement was announced, Nevadas justices declined to revisit their decision in Farmer. Yvette Farmer now had one last chance left: an appeal to the highest court in the land. Gallagher, who had already prepared a 26-page petition, sent Farmer to the U.S. Supreme Court on December 30. He argued that the case offered justices the opportunity that had been denied them by the Piscataway settlement: an occasion to rule on the legality of diversity-based discrimination. Furthermore, since the Piscataway opinion still stood in the Third District, diversity was now proscribed in some states, but not others. "The significance of this conflict," Gallagher wrote, "cannot be overstated: Citizens of Nevada have less protection under Title VII than do citizens of Delaware, New Jersey and Pennsylvania." But the technical importance of the case wasnt nearly as significant as its potential to overturn many racial preference programs. Gallagher argued that in light of Title VIIs clear languageas well as the justices placement of restrictions on preferences in recent yearsthe High Court had little choice but to outlaw diversity-based affirmative action.
"Racial diversity," the attorney argued, "is an amorphous goal with no measurable meaning. There simply is no discernible line where a workforce is magically transformed from a nondiverse workforce into a diverse workforce." Gallagher referenced a troublingand as yet, unansweredquestion posed by the district court in Piscataway: "Is a diverse faculty one which is 10 percent minority, 20 percent minority, or 50 percent minority?" UNR, like many employers, had implemented a diversity program with no defined limits as to when its work force would be diverse enough. If the justices upheld the Nevada Supreme Courts reasoning in Farmer, diversity would continue to be used as a convenient "talisman" for employers seeking to base hiring decisions on race and sex. "This rationale," concluded Gallagher, "eviscerates the protections of Title VII."
In the months after Farmers filing, hope on the right began to build that the bullet dodged by supporters of racial preferences through their settlement of Piscataway would ricochet to strike them with the less-publicized case from Nevada. "It would be poetic justice," wrote Clegg, "if the [liberal] civil rights groups had used up a big chunk of whatever remaining credibility they have in order to settle Piscataway, and then received exactly nothing for their trouble."
Such optimism met harsh reality on March 9, when the Supreme Court, without comment, declined to consider Farmer. Gallagher expressed great disappointment with the courts refusal, telling Nevada Journal he wasnt sure why the justices declined to hear the case. One possible explanation is the factual differences between Piscataway and Farmerthe foremost being that Yvette Farmer was eventually hired for the job she sought, and Sharon Taxman was fired. It is possible, some court observers believe, that the justices are awaiting a specific type of case before ruling on the constitutionality of diversity programs.
Diversity for Diversitys Sake
Farmer no longer has the potential to establish a landmark legal precedent, but the case is valuable as an example of how diversity-based discrimination is now hard-wired into the employment practices of publicly funded institutions. The very existence of UNRs minority bonus policy is disturbing enough, but the "hes black, youre not" justification offered by several university officials to explain the pay disparity between Farmer and Makoba is even more troubling. Casual acceptance of race-based hiring extends to the highest levels of the university systems administrationlast November Chancellor Richard Jarvis told the Associated Press that neither he nor Tom Ray, the systems chief attorney, were that familiar with Farmer, but planned "in the coming weeks to spend more time studying the case." (Apparently the two men do not devote much thought to whether their hiring policies violate federal law.) Critics say Jarvis, Ray, and their ilk fail to understand that the diversity movementand the "diversity industry" it has spawnedhas placed skin color and gender above far more meaningful attributes. "Diversity for diversitys sake," wrote Louis P. Pojman in a 1992 issue of Public Affairs Quarterly, "is moral promiscuity, since it obfuscates rational distinctions, and unless those hired are highly qualified the diversity factor threatens to become a fetish. At least at the higher levels of business and the professions, competence far outweighs considerations of diversity."
NPRI Senior Research Fellow Francis J. Beckwith concurred in his monograph entitled Thats No White Male, Thats My Husband, "When a school does not hire the best faculty member available in order to achieve an [affirmative action] timetable or goal, the school is shortchanging its constituencythe students and parents who expect excellence (and if its a public institution, the taxpayers of the state.)" Emboldened by its success in Farmer, Nevadas university system is free to pursue its "amorphous goal" of faculty diversity with renewed vigor, meaning Silver State taxpayers will continue to be shortchanged.
Its not surprising that public employers adhere to, in anthropology professor Glynn Custreds words, the "simplistic formulas of race-and-gender thinking." But increasingly that thinking is not limited to the public sectordiversity activists have begun to successfully bully the private sector. Corporations, which unlike public institutions must respond to market forces, are adopting workplace diversity as a priority with alarming frequency.
In The Diversity Machine, author Frederick Lynch documented the heavy-handed way the diversity industry attacks companies through public relations campaigns and threats of lawsuits. Terrified of bad press or endless litigation costs, corporations often defer to the demands of activists, regardless of the legitimacy of their claims. This phenomenon has been a financial windfall to some. "Diversity engineers," writes Custred, "rake in a handsome profit, charging $2,000 for a one-day workshop and $200,000 for a complete cultural overhaul."
But diversity should not be seen as merely an academic fad or a demagogic tactic of racial ambulance chasers. If allowed to permeate to the root of American institutions, the diversity philosophy has the potential to undercut the most fundamental tenets of our free society. At its core diversity denies the importance of substance, and celebrates the value of superficialities.
In The Content of Our Character: A New Vision of Race in America, author Shelby Steele described diversity as "a term that applies democratic principles to races and cultures rather than to citizens, despite the fact that there is nothing to indicate that real diversity is the same thing as proportionate representation." In fact, "real diversity" was never an issue in Farmer, nor in Piscataway. It was the race of the four employees involved that was at issuenot the awards they may have earned, the merits of their teaching methods or their popularity with students.
Diversity proponents have effectively avoided discussion of credentials and competence by masking their real agenda with clever phrases such as "make workplaces look like America"a rationale President Clinton used to justify his use of preferences in selecting the leftist lawyers in his cabinet. (Reportedly men were excluded entirely from the list of possible choices for Attorney General, a policy which ultimately resulted in the selection of Janet Reno.) "The abuse of language," writes philosopher Stephen Yates, "has concealed the fact that the affirmative action agenda, as it is practiced, is fundamentally at odds with the basic principles on which this country was founded."
But perhaps the most disturbing aspect of diversity-based hiring is its potential to continue without end. Since by their very nature diversity schemes are not designed to remedy past discrimination against specific individuals, they can be justified forever. Terry Anderson articulated the view of many diversity critics in his book Ending Affirmative Action: The Case For Colorblind Justice: " diversity holds that we should encourage race-based judgments, for race is meretricious in itself. Diversity-based affirmative action thus promises to be perpetual."
Postponing the Inevitable?
In a speech last fall, civil rights activist Ward Connerly, an architect of Californias ban on racial preferences, said "it is high time that those who are obsessed with color accept this fact: We cant use race to get beyond race."
Although Americansand federal courtsare increasingly receptive to Connerlys view, it fails to resonate with those who continue to insist on what Custred calls "divisive, forced and fraudulent celebrations of differences." Clegg has noted that defenders of racial preferences are now unwilling not just to engage in an honest debate about the subject, but to even acknowledge the growing number of legal precedents that challenge race-based employment practices. Their desperation prompts them to "deny discrimination is going on, ignore court precedents for as long as possible and refuse to obey the law." In light of such intransigence, Clegg told Nevada Journal, the war on racial preferences is akin to the Battle of Stalingradit will be fought "street by street, building by building and room by room."
Commenting on the Supreme Courts refusal to hear Farmers appeal, UNR President Joe Crowley said "I trust this will put the Yvette Farmer case behind us." Farmer may be in the past, but the battle over diversity-based discrimination rages on. The victory obtained by Crowleys university in this skirmish allows defenders of racial preferences to breathe a sigh of reliefbut only long enough to plot strategy for a war they are losing on many fronts.u D. Dowd Muska (firstname.lastname@example.org) is a Nevada Journal contributing editor.
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