High court rejects Nevada case challenging affirmative action Hiring of black teacher instead of equally qualified white one is questioned

March 10, 1998|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- For the second time in recent months, affirmative action programs avoided a potential setback in the Supreme Court yesterday as the justices turned aside a new case on the use of race to fill teaching positions.

The case, from Nevada, raised an issue identical to the one the court agreed to hear last year in a major case from Piscataway, N.J.: whether federal civil rights law allows a preference for a black teacher over an equally qualified white one as a way to promote racial diversity on a faculty.

The Piscataway case dissolved last fall after civil rights groups helped raise money to persuade the white teacher to accept a settlement and drop her challenge. The white public school teacher had won in lower courts, and the local school board took the case to the Supreme Court.

This time, the court simply refused to hear the Nevada case. The white college teacher had lost her case in a state court, and she appealed to the Supreme Court.

In each case, the court's skepticism about affirmative action had led supporters of race preferences to worry that the justices might decide in favor of whites who had lost out to blacks. Civil rights groups sought to end the Piscataway case because of those fears.

The same risk arose in the new case, involving a white female professor at the University of Nevada-Reno, who lost out on a faculty opening to a black man, even though they were treated as equally qualified.

Lower courts have reached contradictory rulings on whether racial diversity is a valid reason for preferring minorities in employment under the main federal job bias law, Title VII of the 1964 Civil Rights Act. The court was ready to address that issue in the Piscataway case, but apparently it was not in the Nevada dispute.

Last year, the Clinton administration had argued that the Piscataway case was a weak test case because it involved an isolated situation not likely to be repeated elsewhere. But the justices nevertheless accepted that case for review -- only to have it settled out of court in November.

The court gave no reason for its action yesterday. Similarly, the court has not explained why it has declined to review California's anti-affirmative action Proposition 209 and refused to hear a decision on the use of race in admissions at the University of Texas Law School.

Sharon L. Browne, a lawyer for the Pacific Legal Foundation in Sacramento, Calif., who took the Nevada professor's case to the court, said she was "baffled" by the court order. "We thought this was an excellent case to resolve some very important issues that are troubling employers and people throughout the U.S.," she said.

The case involved Yvette Farmer, who had applied for a teaching post in the sociology department at the University of Nevada. She lost to a black man, Johnson Makoba, who had emigrated from Africa. The university was keenly interested in hiring blacks who held doctorates.

Farmer herself was hired a year later, but she lost more than $10,000 in pay because of the delay. A jury ruled that Farmer had been discriminated against. But the Nevada Supreme Court overturned that verdict, saying the hiring of Makoba was justified as a diversity move.

In a second significant action yesterday, the Supreme Court indicated that lower courts should use caution in dealing with claims of sexual harassment on the job when the harasser is a co-worker of the same sex as the victim.

Last week, the justices ruled unanimously that same-sex harassment was illegal under federal law. But yesterday the court wiped out a federal appeals court ruling that seemed to go further than the court had allowed. The justices told the appeals court, based in Chicago, to reconsider.

The appeals court ruled that two youths had been sexually harassed by male co-workers during their summer jobs cutting grass in a town cemetery in Belleville, Ill. But instead of requiring proof that the co-workers had singled out the youths for mistreatment solely because they were male, the appeals court said it was sufficient that the youths had been taunted as being unmanly.

Because the taunts and grabbing of the youths were sexual in nature, the actions amounted to sexual harassment even without proof that the co-workers were motivated by hostility to other men, the appeals court ruled.

In another order yesterday, the justices declined to clarify the constitutional limits on placing religious holiday symbols on government property. The court left undisturbed a federal appeals court ruling that upheld the use of a Christian nativity scene in a city square in Syracuse, N.Y., on the theory that its effect was offset by a Hanukkah menorah in a different city park and by Christmas lights along the adjoining streets.

The court also agreed to decide whether a person who is invited to someone else's house solely to engage in a joint crime there jTC has a right of privacy that the police cannot invade without a warrant.

Pub Date: 3/10/98

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