TWO v. UNITED STATES, 471 F. 2d 287 (9th Cir. 1972). In the case at bar, however, VCU's action totally excluded men from even being considered for employment, rather than merely placing them at a disadvantage such as paying more taxes (as in KAHN) or facing different (and perhaps even more desirable) promotional opportunities (as in BALLARD). So Then, too, VCU's action was not based on any alleged difference between the sexes. Indeed, VCU would maintain and rightly that members of either sex are equally qualified to be professors of sociology. Since the Supreme Court has unanimously held that a statute "providing dissimilar treatment for men and women who are thus similarly situated violates the Equal Protection Clause," REED v. REED, 404 U.S. 71, 77 (1971), a state administrative decision which similarly discriminates must also be invalidated. ... Furthermore, the Supreme Court has held that a sex-based classification allegedly designed to protect women will be ruled invalid if it discriminates against some women in the name of helping others. WEINBERGER v. WIESENFELD, 420 U.S. 636, 648 (1975). Under this criterion, VCU's actions should be declared unconstitutional. Like another state university's preferential treatment for racial minorities in law school admissions, VCU's absolute preferences for women, despite any "contrary intentions" of appellant, in effect discrimiante against those women hired, by "creat[ing] suggestions of stigma and caste" linked to an assumption that women "cannot make it on their individual merit. That is a stamp of inferiority that a State is not permitted to place on any lawyer," or, we submit any professor. Douglas, J., dissenting, in DE FUNIS v. ODEGAARD, U.S. 312, 343 (1974). The District Court's decision duly noted this stigmatization: "Favoritism only perpetuates the myth of 415 F. Supp. at 677. 416 Not too surprisingly, other commentators have rejected the aspersions that preferential treatment inevitably casts upon the women who receive it in applying for faculty posts: "These quasi-quota systems tend to reinforce Margaret L. Rumberger, "The great Quota See also similar sentiments expressed in Nancy Erickson, "Kahn, Ballard and Wiesenfeld: A New Equal Protection Test in 'Reverse' Sex Discrimination Cases?", 42 Brooklyn L. Rev. 1, 18 n.86 (1975): "If blacks and women get 'favors, they (and others) may conclude that they are inherently inferior and need favors." (Emphasis in original). This is partly why Professor Erickson believes that "reverse discrimination should be held violative of the Equal Protection Clause" (footnote omitted). Id. at 17. If the "compelling state interest" test is to govern, this amicus believes that there cannot possibly be a compelling state interest to establish discrimination, although there must be such an interest to eliminate it. One cannot eliminate an evil by making that evil more widespread. As Mr. Justice Douglass stated, in his DeFUNIS dissent, "If discrimination based on race is constitutionally 416 U.S. at 343. The allegation of a "compelling state interest" cannot be used to justify any so-called means to that end which has a harmful effect on any freedoms especially those which the particular state interest seeks to protect. What has occurred in the instant case is a monstrous governmental overreaching, despite whatever noble purposes VCU might have had in mind. As the Supreme Court has stated: "[E]ven though the governmental purpose be legitimate and substantial, that SHELTON V. TUCKER, 364 U.S. 479, 488 (1960). Here, other methods, as outlined in the Appendix, infra, will accomplish VCU's purpose in a non-discriminatory manner. If this Court should decide that the "rational basis" test should govern the equal protection aspect of the instant case, it should be clear that there cannot possibly be a rational basis for VCU's actions. While VCU may quite properly want to take affirmative action to improve employment opportunities for members of previously disadvantaged groups, and since indeed it may have to do so in its capacity as a federal contractor, the simple fact is that it may engage in all legitimate and proper affirmative action measures without indulging in reverse discrimination. Indeed, reverse discrimination is a contradiction of, and violation of, the nondiscrimination principle that underlies affirmative action. Therefore, VCU's asserted need to set up and implement an affirmative action program (415 F. Supp. at 677) obviously cannot provide a rational basis for justifying its discrimination against Dr. Cramer and all other male job applicants. Indeed, what could be more irrational than to try to justify a flagrant, continuing course of reverse discrimination as a method of conforming VCU's policies and operations with federal equal employment opportunity guidelines, inasmuch as those guidelines specifically bar such conduct? The District Court saw clearly what probably is the true problem here: "The Court can perceive of no rational 415 F. Supp. at 677 n.2. Indeed, the District Court was quite correct in its characterization of the problem as one of supply rather than necessarily one of past discrimination against women. There is a "limited supply of women and minority sociologists and ... difficulty in locating them....." Barbara R. Lorch, "Reverse Discrimination in Hiring in Sociology Departments: A Preliminary Report," 8 American Sociologist 116, 120 (1973) (footnote omitted). Actually, 25 percent of the sociology departments examined in one survey had difficulty in locating women candidates. Id., at 120 n.5. For a comprehensive discussion of how the so-called underutilization" of women, insofar as it exists at all, may well stem not from employer discrimination but from a dearth of qualified female academics, see Thomas Sowell, "'Affirmative Action' Reconsidered," The Public Interest, Winter 1976, 47, 54-61. Appellant cites various cases such as BOARD OF REGENTS v. ROTH, 408 U.S. 564 (1974), as purported authority for the proposition that Dr. Cramer had no "liberty" or "property" interest in getting the job. That argument is irrelevant, for what is at issue is not Dr. Cramer's legal interest in being hired, but rather his Constitutional and statutory rights to have his credentials evaluated without regard to such irrelevant criterial as race, or sex, regardless of whether or not he ultimately got the job. The Constitutional right of respondent which appellant infringed was not any right to be hired for the positions in question but rather a right to be unhindered by any discriminatory barriers that would prevent his even being considered for them. What VCU violated was Dr. Cramer's individual right to be free from discrimination, which is neither greater nor smaller than the equivalent right of a racial minority group member, or a woman. (The flat denial by VCU of its having a policy of reverse discrimination [Brief for Appellants, 10] is thus directly contrary to the stipulated facts and to the common understanding of what reverse discrimination means. Obviously aware of the pejorative meanings rightfully attached to this phrase, appellant stubbornly refuses to refer to its actual policy and practice by the generallyaccepted name which normally describes such conduct in court decisions, law review articles, and common parlance.) To conclude its discussion of equal protection, the amicus commends to the Court's attention a major recent decision which struck down, on equal protection grounds, a preferential minority admissions plan at the Medical School of the University of California at Davis. BAKKE v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, 18 Cal. 3d 34, 553 P. 2nd 1152, 132 Cal. Rptr. 680 (1976). By a vote of six to one, the Supreme Court of California held that such discriminatory devices were not a constitutionally valid way to satisfy what it agreed was an important societal need. The California Court's opinion provides a most lucid guide to the intricacies of these issues, as does the opinion of Judge Marvin Frankel in a very similar case, HUPART v. BOARD OF HIGHER EDUCATION OF THE CITY OF NEW YORK, 420 F. Supp. 1087 (S.D.N.Y. 1976). POINT THREE: APPELLANT'S COURSE OF CONDUCT CLEARLY A. Title VII, at 42 USC $2000e-2(a), specifically Appellant discusses, and tries to distinguish, a section of the Civil Rights Act of 1964 which eschews any requirement that preferences be given to members of selected minority groups, or women. 42 USC $2000e-2(j). Brief for Appellant, 12-14. But appellant ignores the impact of another, more fundamental section cited by the District Court as authority for its decision on the Title VII issue. 415 F. Supp. at 678. This latter section provides as follows: "It shall be an unlawful employment practice for (1) to fail or refuse to hire or to dis- 42 USC $20003-2(a). color, Though on its face this language would seem to be quite clear and unequivocal in its intent to ban the consideration of such factors as sex or race in employment decisions, a pervasive confusion -- of which the instant case is merely an especially egregious example has developed over whether the statute indeed means what it says. The foregoing basic provision of the act is, standing by itself, a total prohibition of sex discrimination in employment. Therefore, the contention (Brief for Appellant, 13) that $2000e-2(j)'s forbidding of required preferences can be construed as "leaving the door open for a voluntary preference" is in error. While the Court below did no cite authority directly on the issue of voluntary preferences under Title VII, several decisions have so ruled, almost all of them holding such preferences to be illegal. Many of these cases |
