New And Prompting MODULE 02-LEGAL CASE 2

New And Prompting MODULE 02-LEGAL CASE 2

ASSIGNMENT – Legal Case 2

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University and Community College System of Nevada v. Farmer


  • Re-read the University case, “University and Community College System of Nevada v. Farmer in your textbook.
  • Note the data under the case title: 113 Nev. 90, 930 P.2d 730 (Nev. Sup. Ct. 1997), cert. denied, 523 U.S. 1004 (March 9, 1998). What do these details signify?
  • Study the case questions in the text at the end of the case. In addition, look through other material provided in Lecture Notes and in the Preface.
  • Outline and submit the case, using the standard legal outline headings. (See “Sample Outline for Legal Cases” in Course Materials.)



  1. Case Name and Citation
    1. Include the court or agency deciding the case
    2. Include the citation, which tells where to find the reported decision.
  2. Key Facts (in brief)
    1. Why – are parties before the court or agency?
    2. What – are the parties seeking?
  3. Stage in the legal process (Trial Court, NLRB,Appeals Court, etc.)
    1. What happened at prior stages (if any) in the legal process?
  4. Legal Issue (s)
    1. Include legal problem(s) raised by the facts of the dispute.
  5. Reasoning of the Decision-Maker
    1. Why was dispute resolved the way it was?
    2. How did the decision-maker apply or reconcile the legal principles involved?



Between 1989 and 1991, only one percent of the University


of Nevada’s full-time faculty were black, while eightyseven


to eighty-nine percent of the full-time faculty were


white; twenty-five to twenty-seven percent of the full-time


faculty were women. In order to remedy this racial imbalance,


the University instituted the “minority bonus


policy,” an unwritten amendment to its affirmative action


policy that allowed a department to hire an additional faculty


member following the initial placement of a minority




In 1990, the University advertised for an impending


vacancy in the sociology department. The announcement


of the position vacancy emphasized a need for proficiency


in social psychology and mentioned a salary range between


$28,000.00 and $34,000.00, dependent upon experience


and qualifications. The University’s hiring guidelines


require departments to conduct more than one interview;


however, this procedure may be waived in certain cases.


Yvette Farmer was one of the three finalists chosen by the


search committee for the position but the University


obtained a waiver to interview only one candidate, Johnson


Makoba, a black African male. The department chair


recalled that the search committee ranked Makoba first


among the three finalists. Because of a perceived shortage


of black Ph.D. candidates, coupled with Makoba’s strong


academic achievements, the search committee sought


approval to make a job offer to Makoba at a salary of


$35,000.00, with an increase to $40,000.00 upon completing


his Ph.D. This initial offer exceeded the advertised salary


range for the position; even though Makoba had not


accepted any competing offers, the University justified its


offer as a method of preempting any other institutions from


hiring Makoba. Makoba accepted the job offer. Farmer was


subsequently hired by the University the following year;


the position for which she was hired was created under


the “minority bonus policy.” Her salary was set at


$31,000.00 and a $2,000.00 raise after completion of her




Farmer sued the University and Community College


System of Nevada (“the University”) claiming violations


of Title VII of the Civil Rights Act, the Equal Pay Act


and for breach of an employment contract. Farmer alleged


that despite the fact that she was more qualified, the University


hired a black male (Makoba) as an assistant professor


of sociology instead of her because of the University’s


affirmative action plan. After a trial on her claims, the trial


court jury awarded her $40,000 in damages, and the University


appealed to the Supreme Court of Nevada. The


issue on appeal was the legality of the University’s affirmative


action plan under both Title VII and the U.S.




Steffen, Chief Justice


… Farmer claims that she was more qualified for the position


initially offered to Makoba. However, the curriculum


vitae for both candidates revealed comparable strengths


with respect to their educational backgrounds, publishing,


areas of specialization, and teaching experience. The search


committee concluded that despite some inequalities, their


strengths and weaknesses complemented each other; hence,


as a result of the additional position created by the minority


bonus policy, the department hired Farmer one year




The University contends that the district court made a


substantial error of law by failing to enter a proposed jury


instruction which would have apprised the jury that Title


VII does not proscribe race-based affirmative action


144 Part 2 » Equal Employment Opportunity


programs designed to remedy the effects of past discrimination


against traditionally disadvantaged classes. The University


asserts that the district court’s rejection of the proposed


instruction left the jury with the impression that all racebased


affirmative action programs are proscribed.…


Farmer … asserts that the University’s unwritten minority


bonus policy contravenes its published affirmative action plan.


Finally, Farmer alleges that all race-based affirmative action


plans are proscribed under Title VII of the Civil Rights Act


as amended in 1991; therefore, the University discriminated


against her as a female, a protected class under Title VII.


Tension exists between the goals of affirmative action


and Title VII’s proscription against employment practices


which are motivated by considerations of race, religion,


sex, or national origin, because Congress failed to provide


a statutory exception for affirmative action under Title VII.


Until recently, the Supreme Court’s failure to achieve a


majority opinion in affirmative action cases has produced


schizophrenic results.…


United Steelworkers of America v. Weber is the seminal


case defining permissible voluntary affirmative action plans


[under Title VII].… Under Weber, a permissible voluntary


affirmative action plan must: (1) further Title VII’s statutory


purpose by “break[ing] down old patterns of racial segregation


and hierarchy” in “occupations which have been


traditionally closed to them”; (2) not “unnecessarily trammel


the interests of white employees”; (3) be “a temporary


measure; it is not intended to maintain racial balance, but


simply to eliminate a manifest racial imbalance.” …


Most recently, in Adarand Constructors, Inc. v. Pena, the


Supreme Court revisited [the issue of the constitutionality


of] affirmative action in the context of a minority set-aside


program in federal highway construction. In the 5–4 opinion,


the Court held that a reviewing court must apply strict


scrutiny analysis for all race-based affirmative action programs,


whether enacted by a federal, state, or local


entity.… [T]he Court explicitly stated “that federal racial


classifications, like those of a State, must serve a compelling


governmental interest, and must be narrowly tailored to


further that interest.” …


Here, in addition to considerations of race, the University


based its employment decision on such criteria as educational


background, publishing, teaching experience, and


areas of specialization. This satisfies [the previous cases’]


commands that race must be only one of several factors


used in evaluating applicants. We also view the desirability


of a racially diverse faculty as sufficiently analogous to the


constitutionally permissible attainment of a racially diverse


student body.…


The University’s affirmative action plan conforms to


the Weber factors [under Title VII]. The University’s


attempts to diversify its faculty by opening up positions traditionally


closed to minorities satisfies the first factor under


Weber. Second, the plan does not “unnecessarily trammel the


interests of white employees.” The University’s 1992 Affirmative


Action Report revealed that whites held eighty-seven to


eighty-nine percent of the full-time faculty positions. Finally,


with blacks occupying only one percent of the faculty positions,


it is clear that through its minority bonus policy, the


University attempted to attain, as opposed to maintain, a racial




The University’s affirmative action plan … [also] passes


constitutional muster. The University demonstrated that it


has a compelling interest in fostering a culturally and ethnically


diverse faculty. A failure to attract minority faculty


perpetuates the University’s white enclave and further limits


student exposure to multicultural diversity. Moreover, the


minority bonus policy is narrowly tailored to accelerate


racial and gender diversity. Through its affirmative action


policies, the University achieved greater racial and gender


diversity by hiring Makoba and Farmer. Of note is the


fact that Farmer’s position is a direct result of the minority


bonus policy.


Although Farmer contends that she was more qualified


for Makoba’s position, the search committee determined


that Makoba’s qualifications slightly exceeded Farmer’s.


The record, however, reveals that both candidates were


equal in most respects. Therefore, given the aspect of


subjectivity involved in choosing between candidates,


the University must be given the latitude to make its


own employment decisions provided that they are not




[The court then rejected Farmer’s claim that the 1991


amendments to Title VII prohibit affirmative action.]


… we conclude that the jury was not equipped to


understand the necessary legal basis upon which it could


reach its factual conclusions concerning the legality of the


University’s affirmative action plan. Moreover, the undisputed


facts of this case warranted judgment in favor of


the University as a matter of law. Therefore, even if the


jury had been properly instructed, the district court should


have granted the University’s motion for judgment notwithstanding


the [jury’s] verdict. Reversal of the jury’s verdict


on the Title VII claim is therefore in order.


The University … has adopted a lawful race-conscious


affirmative action policy in order to remedy the effects of a


manifest racial imbalance in a traditionally segregated job




Chapter 6 » Title VII of the Civi l Rights Act and Race Discr imination 145


The affirmative action plan in the previous case was a voluntary plan; that is, it was not


imposed upon the employer by a court to remedy a finding of illegal discrimination. The


affirmative action plans in the Weber, Johnson, and Wygant cases were also voluntary


plans. Title VII specifically mentions affirmative action as a possible remedy available under


§706(g)(1). In Local 28, Sheet Metal Workers Int. Ass’n. v. EEOC,26 the Supreme Court held


that Title VII permits a court to require the adoption of an affirmative action program to


remedy “persistent or egregious discrimination.” The Court in U.S. v. Paradise27 upheld the


constitutionality of a judicially imposed affirmative action program to remedy race discrimination


in promotion decisions by the Alabama State Police.


ethical DILEMMA


You are the human resource manager for Wydget Corporation, a small manufacturing


company. Wydget’s assembly plant is located in an inner-city neighborhood,


and most of its production employees are African Americans and Hispanics, as well as


some Vietnamese and Laotians who live nearby. Wydget’s managers are white males


who sometimes have difficulty relating to the production workers. The board of directors


of Wydget is considering whether to establish a training program to groom production


workers for management positions, targeting women and minorities in particular. The


CEO has asked you to prepare a memo to guide the board of directors in its decision


about the training program. Should you establish such a program? How can you


encourage minority employees to enter the program without discouraging the white


employees? What criteria should be used for determining admission into the training


program? Address these issues in a short memo, explaining and supporting your




The University has aggressively sought to achieve more


than employment neutrality by encouraging its departments


to hire qualified minorities, women, veterans, and handicapped


individuals. The minority bonus policy, albeit an


unwritten one, is merely a tool for achieving cultural diversity


and furthering the substantive goals of affirmative action.


For the reasons discussed above, the University’s affirmative


action policies pass constitutional muster. Farmer


has failed to raise any material facts or law which would


render the University’s affirmative action policy constitutionally




Young and Rose, JJ., concur.


Springer, J., dissenting [omitted]