Sooner or later the Supreme Court will have to clear up the whole business of "diversity" in public education. In the case of Yvette Farmer and the University of Nevada, a suitable test case may be at hand.
The question has its complex ramifications, but the principal element may be stated simply: In the hiring and promotion of state employees, or the making of state contracts, may a state give preferential treatment to a minority applicant in order to achieve racial diversity?The question arises in many contexts, but it regularly recurs in public education. The high court was to have tackled the question in January in the highly publicized case of Sharon Taxman and the Piscataway (N.J.) High School. Piscataway's board of education, faced with declining enrollment, felt compelled to reduce its staff of instructors in secretarial studies. It kept Debra Williams, who is black, and laid off Sharon Taxman, who is white. Their qualifications were substantially identical, but Williams offered a clinching asset: She would provide "diversity."
Before the case could be argued, the litigants settled out of court, and a prime opportunity for a clear-cut decision was lost. The pending petition of Yvette Farmer in Nevada is not as crisp as the lawsuit in Piscataway, but it may provide a vehicle for a court that is ready to ride.
In 1990 the University of Nevada needed a teacher of sociology. The top candidates were Farmer, a white graduate of the University of California, and Johnson Makoba, a black emigrant from Uganda. He had a better record of publication, but she appeared to be a better teacher. The trial court found that the two were "equal in most respects."
At the time, the faculty was roughly 89 percent white, 1 percent black, and 10 percent Asian or Hispanic. In deciding between Farmer and Makoba, the university opted deliberately for diversity. Thus it hired Makoba at $35,000 a year with a $5,000 raise on completion of his dissertation. A year later Farmer was hired to teach the same course at $31,000 with the promise of a $2,000 raise.
The university defends its decision not only on diversity but also on elementary principles of the marketplace. Makoba had scheduled interviews with Brandeis and Northwestern universities, and Nevada wanted to win a bidding war.
Farmer sued under Title VII of the Civil Rights Act. A jury found the university guilty of discrimination by reason of race and sex, and awarded her a judgment of $40,000. In January 1997 the Nevada Supreme Court reversed the trial court, 3-2, and in late December Farmer petitioned the U.S. Supreme Court for review.
In the Weber case of 1979, the court confessed its inability to decide between permissible and impermissible discrimination.
Now the federal circuit courts have divided sharply on the justification, if any, for preferential treatment. Some judges would allow consideration of race in state hiring. Others say flatly: no way.
In my own view, a bright line can be drawn: Except to remedy specific acts of patent discrimination, there should be no preferential treatment at all. In the Nevada case there was no allegation of prior discrimination. Even if there were, remarked dissenting Justice Charles E. Springer, "it is difficult to see how hiring a recent emigrant from Africa would be an appropriate remedy for prior discrimination against black Americans."
I hope the high court will take the Farmer case, but I am assured of this: "Diversity" is a cat that comes back. If not now, soon.
Universal Press Syndicate