Scott v. University of Delaware, Civ. A. No. 74-58.

• Decision Date: 16 August 1978
• Docket Number: Civ. A. No. 74-58.
• Citation: 455 F. Supp. 1102
• Parties: Nolvert P. SCOTT, Jr., Individually and on behalf of all other persons similarly situated, Plaintiff, v. The UNIVERSITY OF DELAWARE et al., Defendants.
• Court: U.S. District Court — District of Delaware

455 F. Supp. 1102

Nolvert P. SCOTT, Jr., Individually and on behalf of all other persons similarly situated, Plaintiff, v. The UNIVERSITY OF DELAWARE et al., Defendants.

Civ. A. No. 74-58.

United States District Court, D. Delaware.

August 16, 1978.

John S. Grady and Thomas S. Neuberger of Bader, Dorsey & Kreshtool, Wilmington, Del., for plaintiff.

John P. Sinclair of Potter, Anderson & Corroon, Wilmington, Del., for defendants.

Marilyn S. G. Urwitz, EEOC, Washington, D. C., amicus curiae.

OPINION

STAPLETON, District Judge:

Dr. Nolvert P. Scott, Jr. ("Scott") brought this class action against the University of Delaware ("the University"), its Board of Trustees, and other University officials and faculty members, alleging racial discrimination in the hiring, discharge, recruitment, promotion, supervision, wages, terms, conditions and privileges of employment of its faculty. Scott seeks a declaratory judgment, reinstatement and damages on his own behalf, and injunctive relief on behalf of the class which he represents. In an Opinion dated November 20, 1974,¹ this Court held that the complaint stated a claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., as well as under 42 U.S.C. §§ 1981 and 1983. In an Opinion dated September 11, 1975,² this Court certified the action as a class action on behalf of all blacks who have been, or in the future will be, discriminated against on the basis of race with respect to the above enumerated employment practices. On September 14, 1976, this Court denied the defendants' motion to decertify the class. After a four week trial, the case is now ready for final disposition. This Opinion constitutes the Court's findings of fact and conclusions of law.

I. BACKGROUND FACTS.

A. Historic Background.

While Delaware College, the predecessor of the University, was founded as a private institution, there has been significant state involvement with it since 1867 when it was designated by the General Assembly as the State of Delaware's land grant college. The details of the State's subsequent and increased involvement in the affairs of the University are set forth in a stipulation admitted into evidence at trial.³ It will suffice for present purposes to find that the State's involvement is, and for decades has been, sufficient to make the University's actions actions of the State for purposes of the Fourteenth Amendment. Parker v. University of Delaware, 31 Del.Ch. 381, 75 A.2d 225 (1950).

Prior to 1948, there was no black faculty at the University and black students were not eligible for admission. Following the pattern in most southern states, the University of Delaware served the white population of the State while Delaware State College served the black population. In 1948, the Board of Trustees of the University approved a resolution permitting the enrollment of black students who were residents of Delaware, but only if they were enrolled in programs of study which were not available in other state-supported institutions in Delaware. (PX-8, C-117). In 1950, ten black students who had been denied admission to the University brought a class action in the Delaware Court of Chancery. (PX-8; C-117, 118). The court there upheld the plaintiffs' claim of a Fourteenth Amendment violation and issued an injunction prohibiting the University from denying admission solely on the basis of race. Parker v. University of Delaware, 31 Del.Ch. 381, 75 A.2d 225 (1950).

Even after 1950, however, few black students attended the University. Between 1951 and 1969, only 37 black students received Bachelor's Degrees, while 52 received graduate degrees. (PX-8). Until 1961, black students were not allowed to room with white students. (PX-3).

It was not until the last half of the 60's that affirmative efforts were made to encourage black students to come to the University and to attract black faculty. Although these efforts have continued to the present, they have not succeeded in attracting sufficient black students to make the University's student body an accurate reflection of its community. Nor have they resulted in the hiring of sufficient black faculty members to make the University's faculty reflective of the national academic community. A summary of these efforts is important, however, to put the questions now before the Court in perspective.

Since 1966, the University has operated an "Upward Bound" program designed to identify black students with potential for successful college performance, to motivate them to seek college admission, to recruit them for the University, and to provide them with supportive educational services. (PX-8). In 1970, this was supplemented by the inauguration of a "College Try" program to provide supportive educational services to students of low income families during their freshman and sophomore years. (PX-8). In 1968 the admissions office developed a program to attract black students other than through "Upward Bound" and began to apply techniques other than the traditional admissions criteria in evaluating the college potential of black students.⁴

Dr. Edward A. Trabant became President of the University in September of 1968. On October 1, 1968, he wrote a letter to the presidents of approximately 250 colleges and universities, including those which traditionally have had large black enrollments, expressing the University's interest in attracting black faculty and urging the recipients of the letters to refer blacks beginning careers in higher learning or those with prior faculty or administrative experience to him. (DX-48). Letters of similar import were dispatched by the Provost and the Vice President of Academic Affairs. During the same month, President Trabant established an "Advisory Committee on Policies, Programs and Services Affecting Blacks and Other Minority Group Students". The purpose of this group was to advise the University as to how it might most effectively attract and serve black and other minority students. The product of this group's effort was the Scarpitti Report (PX-2) named after its chairman, Professor Frank R. Scarpitti. This report was presented to the President on March 7, 1969.

The 1968 letters initially produced a list of 53 potential candidates. The follow-up efforts found that many of those were not interested or were seeking positions which the University did not have open. Twenty-six were selected as candidates, and of these, 16 were interviewed and 11 were offered jobs. Seven declined the offers and 4 accepted.⁵ This follow-up was reported to all members of the faculty and each was asked to assist in recruiting potential black faculty members. (DX-49).

The Scarpitti Report (PX-2) made numerous and significant recommendations in such areas as black representation on the Board of Trustees, black student and faculty recruitment, creation of a Black Studies Department, social and cultural programs for black students, and additional financial aid to blacks, etc. There was prompt (DX-53) and sustained (DX-54) follow-up to implement most of these suggestions, (e. g. Trabant, N-28-31).

Pursuant to Executive Order No. 11246, the University became obligated to comply with certain federal regulations relating to minority hiring. (41 C.F.R. § 60.2). These require that if an employer doing contract work for the federal government has a work force in which minorities are under-utilized, an affirmative action program must be undertaken. In 1972 the University implemented an Affirmative Action Program which included the area of full time faculty hiring and which will be described in some detail hereafter. (PX-44). This program was overseen by an Affirmative Action Office, headed by a "Coordinator". The first coordinator was Jeannette Sam. Ms. Sam's services were supplemented in 1974 by retention of the services of an Assistant Coordinator, Mr. James Turner. Mr. Turner, a black, has since succeeded Ms. Sam as Coordinator.

While these efforts have not been as successful as originally hoped, they have involved a substantial commitment of resources and do demonstrate a concern on the part of the administration about the underrepresentation of blacks in the student body and on the faculty.⁶

The number of black students in the freshman class rose steadily from 16 (0.9%) in 1967 to 221 (7.8%) in 1972. Despite the increased number of black freshman enrolled, however, the overall size of the student body has grown at a substantial rate, and it appears that during the 1976-77 school year the undergraduate student body was only 3.4% black.⁷ During the same period the graduate student body had a 1.8% black population. (PX-8, PX-55).

B. The Sociology Department And Dr. Nolvert P. Scott, Jr.

In 1967 the Sociology Department at the University was made up of eight full time faculty members. It awarded a Bachelor of Arts and a Master's degree and there was little emphasis on research, scholarship or publication. In the fall of 1967, implementation of a basic policy decision of the President and Trustees was begun. A Doctor of Philosophy Program was to be developed and a new emphasis was to be placed on scholarship and the advancement of knowledge. Four new faculty members, including Dr. Scarpitti, arrived on campus to aid in effectuating this change. (Scarpitti, F-7-9).

In 1969, Dr. Scarpitti became Department Chairman and the Ph.D. program was inaugurated. The teaching load for all faculty members was dropped to six hours and it was understood that at least half the working time of each member would be spent doing research and writing. Between 1969 and 1977 the Department grew from eight full time positions to twenty-one full time positions and became more specialized.⁸ In recruiting for these new positions, the Department sought people who had, in the words of its Chairman, "the capabilities of making significant contribution to scholarship that would bring the recognition to the University that we all...