University & Community College System of Nevada v. Farmer , 113 Nev. 90 ( 1997 )

Springer, J.,

dissenting:

However “schizophrenic” the majority may find the United States Supreme Court’s affirmative action jurisprudence, 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. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S. Ct. 2097 (1995). I dissent because I do not think that the University’s affirmative action program, enacted to remedy a perceived racial imbalance among the faculty, passes this strict standard of constitutional review; and I find no authority for the majority’s assertion that “fostering a culturally and ethnically diverse faculty” is a sufficiently compelling reason for intentional racial discrimination by Nevada’s public university.

In Hopwood v. State of Texas, 78 F.3d 932, 945-46 (5th Cir. 1996), cert. denied, ..... U.S. ......, 116 S. Ct. 2581 (1996), the United States Court of Appeals for the Fifth Circuit recently rejected the notion that an attempt to achieve racial diversity will satisfy this strict scrutiny standard.¹ As the Hopwood court noted, Justice Powell’s diversity argument in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), relied upon by the majority, garnered only his own vote and has never represented the view of a majority of the Supreme Court. 78 F.3d at 944. After review of the relevant Supreme Court cases, I turn to Hopwood and conclude that the racially discriminatory action taken by the University is constitutionally impermissible. “Cultural and ethnic diversity” simply cannot justify the University’s undisguised racial discrimination in the pursuit of a more racially heterogeneous faculty.²

I dissent from the majority opinion’s affirmative action analysis. I also dissent from the majority’s equal pay act analysis and join Justice Shearing’s dissenting opinion in this regard. Accordingly, I would affirm the judgment of the district court.

1 Cf. Taxman v. Board of Educ. of Township of Piscataway, 91 F.3d 1547, 1558-63 (3rd Cir. 1996), petition for cert. filed (Congress neither addressed nor embraced racial diversity “for education’s sake” as a purpose of Title VII, and nothing in federal case law, including the Supreme Court’s equal protection cases, supports recognition of such a purpose.).

2 One compelling interest recognized by the Supreme Court is remedying the effects of prior discrimination. See, e.g., North Carolina State Board of Education v. Swann, 402 U.S. 43, 46 (1971); see also City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (plurality opinion); Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) (plurality opinion). However, remedial race-based state action passes constitutional muster only if the race-based action is taken to remedy prior discrimination by the involved governmental unit, and not simply in response to statistical disparities resulting from general societal discrimination. Wygant, 476 U.S. 277-78 (plurality opinion of Powell, J.); accord Croson, 488 U.S. 469.

In the present case, in spite of the majority’s loose reference to Dr. Makoba’s position as a “traditionally segregated job category,” the University has made no showing whatsoever that it has discriminated against blacks in hiring. In fact, as recognized by the majority, the purpose of the University’s affirmative action hiring policy is simply to rectify a “manifest racial imbalance” among the faculty. Consequently, this is not a case of remedial affirmative action. Even if it were, it is difficult to see how hiring a recent emigrant from Africa would be an appropriate remedy for prior discrimination against black Americans.