Cramer v. Virginia Commonwealth University

• Decision Date: 28 May 1976
• Docket Number: Civ A. No. 75-0271-R.
• Citation: 415 F. Supp. 673
• Parties: Dr. James Albert CRAMER, Plaintiff, v. VIRGINIA COMMONWEALTH UNIVERSITY et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

415 F. Supp. 673

Dr. James Albert CRAMER, Plaintiff, v. VIRGINIA COMMONWEALTH UNIVERSITY et al., Defendants.

Civ A. No. 75-0271-R.

United States District Court, E. D. Virginia, Richmond Division.

May 28, 1976.

W. H. Cabell Venable, Richmond, Va., Robert P. Geary, Highland Springs, Va., for plaintiff.

Walter H. Ryland, Asst. Atty. Gen., Richmond, Va., for defendants.

MEMORANDUM

WARRINER, District Judge.

This is a civil rights action for declaratory and injunctive relief brought by the plaintiff, Dr. James Albert Cramer, a white male citizen of the United States and resident of the State of Maryland. Named as defendant herein is the Virginia Commonwealth University (VCU), an incorporated, State supported university of the Commonwealth of Virginia. Also named as defendants in this action are various officials of the University, each of whom is being sued either individually, in his official capacity, or both.

The action arises as a result of the implementation by VCU of an affirmative action program under which the school sought actively to recruit women for faculty positions in order to compensate for alleged past deficiencies in minority hiring, and to attempt to bring the school's employee hiring practices into accord with prevailing federal guidelines.

Plaintiff contends that the University's attempts to comply with what was thought to be its affirmative action obligation actually resulted in a practice of "reverse discrimination." Plaintiff contends that as a consequence of this inequality of treatment, he was denied the offer of a permanent position for which he was at least as well qualified as the two female applicants who were ultimately hired to fill the positions. Plaintiff concludes that such preferential treatment was in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and constituted a denial of his right to the equal protection of the law as guaranteed under the Fourteenth Amendment. Relief is sought under 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988. Jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331, 1337, 1343, and 2201.

The matter is presently before the Court on cross motions for summary judgment. Briefs, exhibits and stipulations have been filed, and the matter is now ripe for decision. All facts which are material to the summary judgment motions have been stipulated by the parties.

On 24 September 1965 the President of the United States issued Executive Order 11246, which was amended on 13 October 1967 by Executive Order 11375. These orders were calculated to prohibit invidious discrimination in federal employment practices. On 13 October 1968 sex was added to the list of prohibited bases of discrimination. Subsequent to their issuance these presidential directives were held to be applicable to State universities receiving federal grants or contracting with the federal government. Pursuant to these directives, the Governor of Virginia promulgated Executive Order No. 29 which became effective 1 January 1973. This order formally established a policy of equal employment opportunity which was to govern the employment practices of all governmental agencies within the Commonwealth of Virginia. Pursuant to the Governor's order, the Board of Visitors of VCU promulgated "the Affirmative Action Program of Virginia Commonwealth University" on 15 November 1973.

Sometime prior to the commencement of the Fall term, 1973, plaintiff Cramer was offered a temporary appointment as instructor in the Department of Sociology and Anthropology (Department) at VCU. He accepted the offer and served in the Department through the academic year beginning in September 1973 and ending in June 1974. Plaintiff has a B.S. degree in Criminology and Correction, an M.A. degree in Sociology and Criminal Justice, and a Ph.D. in Sociology. He is an active member of several professional organizations, and has published both articles and book reviews in his field. He was a qualified candidate for permanent employment at VCU and, specifically, for appointment to a vacated permanent faculty position within the Department. This vacancy was one of two within the Department for which plaintiff applied and on which this action is predicated. Plaintiff was told prior to accepting his one year appointment that permanent positions were likely to open and if he wished to apply he would be given consideration with other candidates.

On 7 January 1974 plaintiff received a memorandum from John McGrath, Chairman of the Department and a defendant herein, stating that two positions had become available and that if plaintiff wished to be considered he should so inform the recruitment committee. The recruitment committee was a standing committee within the Department whose function it was to seek out and screen applicants for available positions. The plaintiff gave timely written notice to the recruitment committee of his wish to be considered for one of the two available positions.

Almost a year prior to the filing of plaintiff's application with the recruitment committee, on 9 March 1973, defendant McGrath had given to the committee a copy of the Governor's Executive Order No. 29. This order was interpreted by some members of the Department as, inter alia, requiring a hiring preference for females. The Department, which had direct responsibility for its own hiring policies, had a clearly expressed preference that qualified females and members of other minority groups be considered and hired before white males. This preference was known to the recruitment committee. The defendant McGrath also distributed to the committee the Higher Education Guidelines, issued 1 October 1972 by the Department of Health, Education and Welfare. Despite the foregoing, McGrath accompanied these written guidelines and directives with verbal instructions that the committee was obligated only to recommend the hiring of the best qualified applicant.

The records of the Department reflect that of the 385 applications received by the Department for the two vacant positions during the 1973-74 academic year, 57 were from female applicants and 328 were from male applicants. The availability (as distinguished from applications) of women was estimated from a listing of Ph.D.'s recently awarded which showed that 151 females and 309 males had received doctorates in the field in 1973-74.

The files of the 385 applicants were arranged by the committee in alphabetical order. Once position requirements were established, the committee went through the applications and pulled those which were compatible with those requirements. The applications so selected were then divided into three categories: "females," "minority males," and "white males." Only applicants from the "females" pile received further consideration and only they were interviewed for the two vacant positions.

The first position, requiring a statistical capability, was offered to and accepted by a qualified female whose credentials satisfied the requirements for the position. The second position, requiring a criminology background, was also offered to and accepted by a qualified female who had been interviewed for the first position. A total of four females were interviewed for the first position. The Department chairman had transmitted the recruitment committee recommendations regarding the hiring of the two females to another of the named defendants, Paul Minton, Dean of the School of Arts and Sciences, who communicated the actual offer of employment to the applicants.

It is undisputed that plaintiff Cramer's basic academic credentials, as evidenced by his academic vita, were equal to or exceeded those of the individual hired for at least one of the two positions. Plaintiff has stipulated that the actions of the defendants herein, albeit discriminatory and illegal, were undertaken in good faith and without improper or culpable motive. Plaintiff therefore seeks only equitable and declaratory relief and no damages.

I

Our first inquiry is directed at the issue of whether the preferential hiring of college instructors on the basis of sex was a violation of plaintiff's Fourteenth Amendment right to the equal protection of the laws.

Under traditional Equal Protection analysis, differential treatment by the State is permissible if it is rationally related to some legitimate governmental interest. U. S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). However, where the State regulation categorizes persons according to certain immutable characteristics over which those classified have little or no control, the State may have to show a compelling interest to justify its classification. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). The Supreme Court has determined that classifications based on race, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), alienage, Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), and national origin, Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (1948), are inherently suspect, thus raising a strong presumption against their validity. Although the Court has determined by plurality opinion that sex also constitutes a suspect class, Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), the Court's refusal to apply strict judicial scrutiny to a sex-based classification in its recent decision in Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975) reflects an apparent disinclination to extend the list of suspect categories beyond its previous boundaries. Absent a controlling decision that sex is an inherently suspect class, this Court must conclude that only a rational basis need be shown in order to justify classifications based on sex. See, Stanton v. Stanton, supra; Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); Taylor v. Louisiana, 419...