Valentine v. Smith
| Decision Date | 21 July 1981 |
| Docket Number | No. 80-1460,80-1460 |
| Citation | 654 F.2d 503 |
| Parties | 26 Fair Empl.Prac.Cas. 518, 26 Empl. Prac. Dec. P 31,981 Bonnie VALENTINE, Appellant, v. Eugene SMITH, Interim President of Arkansas State University; Richard Herget; Stan Langley; Lou Mixon Angelo; Ben McGee and Johnny Allison, Trustees of Arkansas State University and Dr. Clark Elkins, Vice-President of Instruction, Arkansas State University, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Berl S. Smith (argued), Stephen M. Reasoner, Barrett, Wheatley, Smith & Deacon, Jonesboro, Ark., for appellees.
Bill W. Bristow (argued), Seay & Bristow, Jonesboro, Ark., for appellant.
Before LAY, Chief Judge, and STEPHENSON and ARNOLD, Circuit Judges.
Ms. Bonnie Valentine, a white college instructor, appeals from a judgment in an employment discrimination suit brought by her against officials of Arkansas State University. Valentine's complaint alleges that she is entitled to relief under 42 U.S.C. § 1981; 42 U.S.C. § 2000d; and the Fourteenth Amendment. This appeal raises important questions about permissible affirmative action under federal employment discrimination statutes and the Fourteenth Amendment. 1
Arkansas State University, like many other colleges and universities, excluded blacks for most of its history. ASU made little progress toward desegregation until forced by the federal government. In 1968, HEW's Office for Civil Rights (OCR) began compliance reviews under title VI of states that retained vestiges of a dual system of higher education, which reviews included the ASU campus. In January 1969, OCR wrote Governor Winthrop Rockefeller that the reviews of Arkansas' colleges and universities indicated that the state violated title VI. The state developed a compliance plan. Another campus review at ASU in November 1970, raised further questions about discrimination against minorities. In August 1972, the ASU Board of Trustees made it the policy of the university to exert every reasonable effort to employ minority persons in professional positions. In February 1973, the Adams v. Richardson 2 decision ordered HEW to bring Arkansas into compliance with title VI. In May 1973, OCR notified Governor Dale Bumpers that the 1969 statewide plan was inadequate. The state wrote a new plan but it failed to win OCR approval in 1973. In February 1974, ASU endorsed a revised statewide plan developed by the Arkansas Department of Higher Education. After further revisions, OCR approved the plan in July 1974, and promised to monitor its implementation. In August 1975, OCR documented "extensive failure to implement the Statewide Plan ... (and that) violations of Title VI ... continue to exist." After OCR threatened enforcement actions, the Governor, college and university officials, and OCR representatives met to discuss compliance efforts. In October 1975, ASU submitted its affirmative action program. 3 Compliance reviews by and ASU reports to OCR continued at least through 1976.
During these efforts to desegregate ASU, Bonnie Valentine sought employment there in 1976. Valentine had previously taught business education at ASU from 1967 until she resigned in 1974. In 1976, Valentine's replacement, Adena Williams, the only black person on the business education faculty, resigned, and Valentine applied for her former position. The position required the applicant to have a masters degree in business education. Valentine had a masters degree, 30 additional hours of credit, and seven years of teaching experience at Arkansas State University.
A faculty search committee, the division chairperson, and the dean of the College of Business Administration rated the applicants. Several of these individuals knew Valentine from when she first taught at ASU, and they recommended her as the most qualified of the sixteen applicants for the job. Dr. Robert Ferralasco, Chairperson of the Division of Business Education and Office Administration, gave a list of names, headed by that of Bonnie Valentine, to Dr. F. Clark Elkins, Vice-President for Instruction, for his consideration. Ferralasco and Elkins met with Marilyn Myers, the affirmative action officer for ASU, to discuss the list. After the meeting, Ferralasco submitted a new list of recommended applicants. Valentine's name was deleted from this list which contained only the names of two black applicants and no whites. ASU hired one of these two black applicants, Georgia Mitchell.
Valentine's burden was to persuade the court that ASU intentionally discriminated against her because of her race. 4 At trial, ASU asserted as a defense that it rejected Valentine because she was overqualified for the position and to hire her would create salary problems because of her previous experience and qualifications. The trial court noted this testimony, but did not seem to rule on this basis. The court dismissed the complaint with prejudice on the basis of ASU's implementation of its affirmative action plan. We agree with the appellant that the record demonstrates that the decision to hire Georgia Mitchell, a black, and reject Valentine, was substantially motivated by a race-conscious choice by ASU to implement its affirmative action plan.
Valentine testified that both Dr. Ferralasco and Dr. Elkins told her ASU rejected her because she is white. Dr. Ferralasco testified that the top recommendation of the screening committee, division chairman, and Dean Lonnie Talbert was usually selected. Dr. Ferralasco stated that Dr. Elkins said ASU was under a court order to hire a black applicant, if a black met the minimum qualifications, but that ASU would hire Valentine if Myers determined that the affirmative action plan would permit it. Dr. Ferralasco substituted the names of two black candidates for the original list, which contained only the names of white applicants. Dr. Elkins admitted discussing affirmative action concerns at hiring discussions. Dr. Elkins apparently believed HEW viewed the school as having too few minorities and he feared HEW's reaction if the university replaced a black faculty member, Adena Williams, with a white applicant. Dr. Elkins' concern apparently arose from the university's small number of minority faculty in 1976 and previous "old boy school" hiring practices.
The state contends that it rejected Valentine because she was overqualified and not because she is white. Dr. Elkins testified that to hire someone with Valentine's qualifications at the annual salary of $10,500, the university would be buying a lawsuit. The fact that Dr. Ferralasco named none of the whites on his first list to his second list undermines the state's argument. We conclude that Valentine has demonstrated that the motivating factor in rejecting her was based upon the fact that she was white and the university was making a race-conscious choice in deference to its affirmative action plan.
The constitutional guarantee of equal protection does not prohibit states from taking appropriate measures to remedy the effects of past discrimination. 5 The Supreme Court has not yet defined guidelines for permissible affirmative action for employing state university faculty. Because the justification for race-conscious affirmative action is remedying the effects of past discrimination, a predicate for the remedy is that qualified persons make findings of past discrimination before the plan is implemented. Absent findings of past discrimination, courts cannot ascertain that the purpose of the affirmative action program is legitimate. Such findings enable courts to ensure that new forms of invidious discrimination are not approved in the guise of remedial affirmative action. Likewise, a court can determine that the remedy substantially relates to its purpose only if it is certain that the persons shaping and implementing the plan understood the nature and extent of the past discriminatory practices. See Setser v. Novack Investment Co., 638 F.2d 1137 (8th Cir. 1981).
The Supreme Court has determined that the Congress, 6 federal courts, 7 and, in some instances, the states 8 have the competency to make such findings of past discrimination as are sufficient to justify a race-conscious remedy. 9 The record reflects that HEW and the District Court for the District of Columbia found that Arkansas' colleges and universities did not comply with title VI. Because of these findings and the action taken by OCR, ASU developed its affirmative action program. HEW and the district court are competent to make findings of past discrimination sufficient to justify the remedial purpose of an affirmative action program. 10
There is no consensus on what findings of past discrimination justify remedial affirmative action. 11 Nevertheless, the issue of whether the findings of past discrimination made by the District of Columbia District Court and HEW were adequate to justify a race-conscious remedy is not even close. Findings of previous statutory violations of title VI by a district court and OCR justify the use of some type of race-conscious remedy by a state to serve its constitutionally permissible objective of remedying past discrimination.
We now turn to the question of whether, as a means to accomplish the plainly constitutional objective of remedying past discrimination, the State of Arkansas can prefer a black applicant over a white for a particular faculty vacancy. Arkansas could not practically achieve its constitutionally permissible ends in the foreseeable future without the use of race-conscious remedies. We examine the means used by Arkansas without any bright line distinction between permissible and impermissible affirmative action plans. 12 Any racial preference must receive a searching examination to make certain that it does not conflict with constitutional guarantees. 448 U.S. at 491, 100 S.Ct. at 2781. Until we know more about the long term effects of...
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