# Petition — Powell v. Syracuse University > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1835%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 984 ## Text | ‘iz Supreme Court, U. &»7 FILED’ ) OCT 4 1979 ES ————————— In THE Supreme Court of the United States Ocroper Term, 1978 No MBB © 566 GERALDINE PoWELL, Petitioner, v, Syracuse University, Doctor Metvin Eooers, Chancellor of Syracuse University, Scnoon or Ancurrecturs, a sub- unit of Syracuse University, Junto San Jose, Acting Dean of the School of Architecture, Syracuse University, Respondents. —— —_--— PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _————_—- —— Naruantet R, Jones, Esq. James I, Meyerson, Esq. 1790 Broadway—10th Floor New York, New York 10019 (212) 245-2100 Attorneys for Petitioner September 29, 1978 "a a ae —s ee » INDEX EES ES EE EE SE SD Statutory Provision Involved 2... een LS EE Reasons for Granting the Writ —.........-..0 1, This Court has never enunciated the degree to which an employer must sustain his burden in rebuttal onee an adversely affected employee has established a Title VII prima facie case of individually oriented racial discrimination which includes, among other things, evidential documentation that the sole factors considered at the time of the adverse decision were race cg This Court has never determined whether the mere articulation of race neutral criteria, with- out more, meets the employers burden once it has shifted from the employee to the employer and where the Black professional’s Title VII prima facie ease of individually oriented racial diserimination establishes that the only eviden- tially documented factors discussed at the time of the adverse employment decision were race SE PAGE 8 This Court has never determined whether invalid race oriented considerations are can- celled out by the subsequent assertion of os- tensibly race neutral criteria, without more .... 15 OT I ao irccesig ss Disa vesncecapcae eink ntnatinta able 19 wren OE TCG anche elie 20 Appendix A— Opinion of the United States District Court for the Northern District of New York ........................ la Appendix B— Opinion of the United States Court of Appeals for Se CE CI anasto cliches ctecoeneinne 24a Appendix C— Statutory Provision Involved ......2..02.....20..........-.00+ 43a Appendix D— Plaintiff’s Exhibit #14 in Record .......00000000000000..... 44a Appendix E— Plaintiff’s Exhibit #’s 17, 19, 20 in Record ........ 54a Appendix F— Table of Contents in Appellant’s Brief to the EG I oogenesis taiedie ted cet talem ie. 59a ili CITATIONS PAGE Armstead v. Starkville Municipal Separate School Dis- trict, 325 F. Supp. 560 (N.D. Miss. 1971) 000... 9 Baker v. Columbus Municipal Separate School District, 329 F. Supp. 706 (N.D. Miss. 1971) ...0.0220.000....e...00. 9 Bishop v. Pecsok, 431 F. Supp. 34 (N.D. Ohio 1976) ..... 17 Brown v. Rollins, Inc., 397 F. Supp. 571 (W.D.N.C. ae aR RC EN Stee RI g ary COC Re RO OO 17,18 Cedeck v. Hamiltonian Federal Saving and Loan As- sociation, 414 F. Supp. 495 (E.D. Mo. 1976), Affirmed ee, ee Re ee CAE, te i 18 Chambers v. Hendersonville City Board of Education, Goa Fae 300 €6tm Civ. 2008) nn nace... 9 Day v. Mathews, 530 F.2d 1083 (Ct. of Appeals, D.C. PO SARL au ad da tai satica hdiiscectesciinibgde abentiawenbcon: 10n, 14, 15 Drain v. Friedman, 422 F. Supp. 366 (N.D. Ohio 1976) 17 East v. Romine, Inc., 518 F.2d 332 (Sth Cir. 1975) ...... 15 Equal Employment Opportunity Commission vy. Kallir, Philips, Ross, Inc., 401 F. Supp. 66 (S.D.N.Y. 1975) 18 Flowers v. Crouch-Walker Corp., 552 F.2d 1277 (7th Cir. 1977) Gillin v. Federal Paper Board Co., Inc., 479 F.2d 97 Se Ee Ree en RET ee ee. RE) 18 Hardy v. Porter, 443 F. Supp. 1164 (N.D. Miss. 1977) 11 Harris v. Jones, 296 F. Supp. 1082 (D.C. Mass. 1969) 12 Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Eid.2d 548 (1973) un... .n.cccececseeccecceeneeceeee 10 iv PAGE McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ................ 6, 7,9, 11, 15 Moore v. Board of Education of Chidester School Dis- trict No. 59, 448 F.2d 709 (8th Cir. 1971) .................... 9 Moore \v. Townsend, 525 F.2d 428 (7th Cir. 1975) ...... 17 North Carolina Teachers Association v. Asheboro City Board of Education, 393 F.2d 736 (4th Cir. 1968) ....9, 12 Reynolds vy. Abbeville City School District No. 60, 554 F.2d 638 (4th Cir. 1977) <2. cee 10 Saracini v. Missouri Pacific Rail Co., 431 F. Supp. 389 (E.D. Me. 1977) we eee 12 Sek v. Bethlehem Steel Corp., 421 F. Supp. 983 (E.D. Pa. 1976), Affirmed 565 F.2d 153 (3rd Cir. 1977) .... 18 Smith v. Sol D. Adler Realty Co., 436 F.2d 344 (7th Cir. 1974) ee 12,17 Sprogis v. United Airlines, 444 F.2d 1194 (7th Cir. 1971), Cert. denied 404 U.S. 991, 92 S.Ct. 536, 30 L.Fa.3d 543 (3972) 22 18 Turner v. Texas Instruments, Inc., 555 F.2d 1251 (5th Chr, BOTT) no cansecias--.csiscesnsespcceene ee 8 United States v. New York, N.H. & H.R. Co., 355 U.S. 293, 78 S.Ct. 212, 2 L.Ed.2d 247 (1957) ...................... 15 Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.3a GT (19%) ee 10 Williams v. Kimbrough, 295 F. Supp. 578 (W.D. Loulsiona 1909) Wee 9 Willtamson v. Hampton Management Company, 339 F. Supp. 1146 (N.D. Ill. 1972) Zuch v. Husey, 394 F. Supp. 1028 (E.D. Mich. 1975) .... 17 IN THE Supreme Court of the United States Octosper Term, 1978 GERALDINE PoweELL, Petitioner, v. Syracuse University, Docror Metvin Eccers, Chancellor of Syracuse University, ScHoon or ARCHITECTURE, a sub- unit of Syracuse University, Junio San Jose, Acting Dean of the School of Architecture, Syracuse University, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT The Petitioner, Geraldine Powell, respectfully prays that a Writ of Certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Second Circuit entered in this proceeding on July 13, 1978. Opinions Below The opinion of the United States District Court for the Northern District of New York, the Honorable Edmund Port presiding, is not reported. It was entered on August 5, 1977 and is set forth herein, infra, as Appendix A. The opinion of the United States Court of Appeals for the Second Circiut is not yet reported. It was ontered on July 13, 1978 and is set forth herein, infra, as Appendix B. ee Se RE a om ae - —— — — to Jurisdiction The judgment of the United States Court of Appeals for the Second Circuit was entered on July 13, 1978. Jurisdiction of this Court is invoked, within ninety (90) days of the foregoing entry, pursuant to 28 U.S.C. Section 1254 (1). Question Presented Where a Black professional’s Title VII prima facie case of individually oriented racial discrimination establishes that the only evidentially documented factors discussed at the time of the adverse employment decision were race oriented, whether a university employer can rebut said case by mere articulation of race neutral reasons, without more, at the post evidential hearing two years later. Statutory Provision Involved This case involves subdivision (a) of Section 703 of Title VII of the Civil Rights Act of 1964, 78 Stat. 255, as amended by Section 8 of Public Law 92-261, March 24, 1972, 86 Stat. 109, 42 U.S.C. Section 2000e-2(a). This sub- division is set forth herein, infra, as Appendix C. Statement of the Case The following statement of facts is by and large ex- cerpted from the opinion of the Cireuit Court below and based upon findings made by the District Court. Ms. Powell, the Petitioner herein, has an extensive aca- demic background. She received a Registered Nurse’s de- gree from New York University in 1959. In 1971, she received a Bachelor of Fine Arts degree from Syracuse 3 University and, in January, 1973, was awarded the Master of Fine Arts degree in Environmental Design. Her mas- ter’s thesis concerned the relationship of low income hous- ing to a black perspective. The Petitioner was hired for the 1972-73 academic year at the rank of lecturer (part-time) on the faculty in the Syracuse University School of Architecture. During the fall semester, 1972, Petitioner taught one section of the basic design course, an art discipline and oriented course also taught by white, tenured non architec- tural degreed males on the faculty. Prior to 1975, a detailed student manual for this course did not exist and each sec- tion teacher was free to fashion his ov-n course curriculum after reading the course description in the School of Archi- tecture’s annual bulletin and consulting with the dean and other faculty members teaching the course. The Petitioner did not receive any criticism from other faculty members during her first year on the faculty. The Petitioner was a part-time visiting assistant pro- fessor on the faculty during the 1973-74 school year. She taught architectural rendering, served as advisor to mi- nority students, and delivered five guest lectures on non- western architecture. No formal description of the render- ing course was developed until September, 1974. The school’s faculty disagreed as to whether rendering was best taught by an architect or an artist. In November, 1973, Petitioner was advised by the dean that her employment status was to be reviewed by the Com- mittee on Hiring, Promotion, and Tenure. Shortly before the Thanksgiving vacation, Petitioner was asked to pro- vide the Committee with a summary of her Master’s thesis and samples of her student’s work. The Petitioner was under the impression that she had only a couple of days during which to organize her submission, although the dean 4 testified that he told her that the material was not required until December 1, an approximately ten-day period. Peti- tioner submitted those student projects which had been left in the studio during the vacation period, believing that they did not represent the best of her student’s work and advising the dean of the same. She also submitted a handwritten summary of her thesis. She did not, however, request a postponement of the Committee meeting as she was not aware that she could do so (since she was never advised of the same and since there were no written pro- cedures relative to evaluation). The Tenure Committee met on December 1, 1973 to econ- sider the Petitioner’s continued employment during the 1974-75 school year. The dean, six faculty members, and two students attended the meeting (out of a total of 15 members). The minutes of this meeting indicate that the only discussion of the Petitioner revolved around race oriented considerations, including her approach to a “black aesthetic”. The minutes also reflect that a white, female faculty member was permitted to delay committee con- sideration of her case. There were no oral or written description of the Peti- tioner’s duties while on the faculty nor any criteria or procedures for assessing her performance or, for that matter, any individual’s performance, leaving the legit- imacy and rationality of a specific employment evaluation to the context of that particular time and place rather than to a uniform and defined scheme. The Committee voted to terminate the Petitioner. The dean transmitted the results of the Committee vote to the Petitioner indicating that he believed that the Committee thought the Petitioner unduly “nationalistic.” The Peti- tioner refused to submit a letter of resignation, appealing to the University Senate’s Sub-committee on Academie H) Freedom. The Sub-committee found that there had been procedural irregularities in the disposition of the case. It recommended the reinstatement of the Petitioner or, alternatively, the payment of compensation, but these sug- gestions were rejected by the Respondents. The Petitioner received a letter of termination in May, 1974. The School of Architecture later hired a white male with a master’s degree in architecture to teach rendering and a white female with a Master of Fine Arts degree to teach basic design. It also hired a white female with a Master’s and Doctoral degree in history to teach architectural history. Petitioner filed a claim of discrimination based on race, eolor or sex with the New York State Division of Human Rights. After hearings before an agency examiner, the Division of Human Rights dismissed the Petitioner’s com- plaint. While the state complaint was pending, Petitioner filed a similar complaint with the Equal Employment Op- portunity Commission (“EEOC”), receiving a right-to-sue letter on September 10, 1975. She subsequently commenced the action herein within the 90-day period required by the statute, invoking the jurisdiction of the federal Court un- der both Title VII of the Civil Rights Act of 1964 (42 U.S.C. Section 2000(e) et seq.) and the Civil Rights Act of 1866 (42 U.S.C. Section 1981). The case was submitted to the district court upon the transcript of hearings before the New York State Division of Human Rights, stipulated facts and exhibits, and the parties’ briefs. Of those who voted against the Petitioner and testified before the New York State Division of Human Rights, most asserted that their votes were based on an evaluation of student work and on the Petitioner’s non architectural degreed background. They testified further that their at- titudes had not been influenced by the Petitioner’s race or sex, 6 Two of the Respondents own witnesses testified that their respective votes were not based on the evaluation of the students work (since in their professional opinions such a criteria was invalid). See: Testimony of Professors Kermit Lee and Wolfgang Schueller at pages 1165, et seq. in Record below. That position was supported by others, as well, who testified in the Petitioner’s case in main. See: Testimony of Professor Siegfried Synder at pages 500-524 in Record below; Testimony of former Professor David Richards at pages 537-552. Ultimately, the United States District Court for the Northern District of New York, the Honorable Edmund Port presiding, dismissed the case finding that the Peti- tioner had failed to make out a prima facie case but holding that, even assuming that she had done so, the Respondents had satisfactorily rebutted the same by and through their articulation that they did not discriminate because of race or sex. The Petitioner appealed the decision of the District Court to the United States Court of Appeals for the Second Circuit. The majority of Circuit panel held that, contrary to the decision of District Judge Port, the Petitioner did make out a prima facie case of individual racial discrimina- tion under Title VII of the Civil Rights Act of 1964: but that the District Judge was not clearly erroneous in find- ing that the Respondents had rebutted said prima facie ease. Accordingly, the Circuit below affirmed the trial court’s ultimate conclusion (or parts thereof). Believing that the Court below was clearly erroneous in its application of Title VIT principles, particularly those enunciated by this Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Petitioner seeks review of the judgment herein. 7 The ultimate consequence of the decision below is to insulate largely white University communities from the scrutiny of a federal court, in the context of civil rights and constitutional litigation, by permitting a University employer, through mere articulation of race neutral eri- teria without more, to rebut evidentially documented and established racial criteria and inferences which flow there- from, at the time of the adverse employment decision. Such a decision forbodes that those largely white institu- tions will remain largely white and will be insulated from scrutiny of the institutional practices which have ad- versely affected minorities, fostered racially stratified environments such as that in which the Petitioner was evaluated herein, and resulted in wrongful and racially discriminatory actions such as that challenged herein. REASONS FOR GRANTING THE WRIT 1. This Court has never enunciated the degree to which an employer must sustain his burden in rebuttal once an adversely affected employee has established a Title VII prima facie case of individually oriented racial discrim- ination which includes, among other things, evidential documentation that the sole factors considered at the time of the adverse decision were race oriented factors. While this Court has enunciated an elaborate three prong burden of proof requirement in an individually ori- ented Title VII racial discrimination matter, See: McDon- nell Douglas Corp. v. Green, supra, it has never enun- ciated the digree to which an employer must sustain his burden of proof once an adversely affected employee has established a prima facie case, which includes, among other things, evidential documentation that the sole factors considered at the time of the adverse decision were race oriented factors and “personality” factors, thereby shifting the burden to the employer to rebut the inference of racial EI SOE ENS eee OOO ee OEY ee ee discrimination attendant to the prima facie case. See: Turner v. Texas Instruments, Inc., 558 F.2d 1251, 1256 (5th Cir, 1977). The Court below did not specifically make a determina- tion on this issue notwithstanding that the Petitioner re- quested the Court to do so (See: Table of Contents in Appellant’s Brief to the Court below, setting forth the argument in this regard, as Appendix F herein, infra) and notwithstanding the Petitioner’s belief that, unless such was done, the Court would find the articulated reasons given by the Respondents herein (at the post termination hearing before the State Division of Human Rights) to be sufficient to rebut the Petitioner’s cause of action precisely because this Court has enunciated the principle that all that is necessary to rebut a Title VII prima facie case of individually oriented racial discrimination is mere articu- lation of race neutral reasons and nothing more. However, it is submitted that something more than articulation is required. It is submitted that, where a Black professional’s Title VII prima facie case of individually oriented racial dis- crimination establishes that the only evidentially docu- mented factors discussed at the time of the adverse em- ployment decision were race oriented, a University em- ployer must establish by clear and convincing evidence that the otherwise articulated race neutral reasons, asserted for the first time at the evidential hearing two years after the adverse decision, are, in fact, the reasons for said termina- tion (or put another way, the employer must establish in a clear and convincing manner, that, even absent the dis- crimination, the employee would not have been retained). Notwithstanding the lack of case law discussion focusing on the degree to which a Title VII employer must carry his/her burden once the employee has established a prima 1) facie case of discrimination, including therein documented evidence that the only considerations recorded at the time of the decision were racially oriented (thus satisfying the first prong of the McDonnell Douglas three-prong alloca- tion of proof requirement and shifting the burden, accord- ingly), there is discussion in other civil rights oriented matters which, by analogy, support the proposition that, under the circumstances described, the employer must re- but the prima facie case in a clear and convincing manner or otherwise fail to expunge the clearly established racial considerations. Of particular value and significance in discussing this proposition are those civil rights actions brought pursuant to the Civil Rights Act of 1871 (42 U.S.C. Section 1983) and the Fourteenth Amendment to the United States Con- stitution where a Black teacher, alleging that her termina- tion from employment with a school district was racially motivated, established a prima facie case, under the cri- teria established by the Courts, with the burden shifting to the defendant school district to rebut such. See: Baker v. Columbus Municipal Separate School District, 329 F. Supp. 706, 720 (N.D. Miss. 1971) which adopts the “clear and convincing” standard. In accord: Armstead v. Stark- ville Municipal Separate School District, 325 F.Supp. 560, 570 (N.D. Miss. 1971) ; Williams v. Kimbrough, 295 F.Supp. 578, 585 (W.D. Louisiana 1969). See also: Chambers v. Hendersonville City Board of Education, 364 F.2d 189, 192 (4th Cir. 1966); North Carolina Teachers Association v. Asheboro City Board of Education, 393 F.2d 736, 743, f.n. 11 (4th Cir. 1968); and Moore v. Board of Education of Chidester School District No. 59, 448 F.2d 709 (8th Cir. 1971). By analogy, this Court has recognized that, once the Plaintiff has established a prima facie case of segregation 10 in the context of school desegregation matters (whether classical or otherwise), a school board must rebut the in- ference of iliegality through clear and convincing evidence. See: Keyes v. School District No. 1, 413 U.S. 189, 209, 93 S.Ct. 2686, 37 L.Eid.2d 548, 564 (1973), citing certain of the foregoing authority in support of said proposition. See also: Reynolds v. Abbeville City School District No. 60 004 F.2d 638, 642 (4th Cir. 1977), where the Court, difag Keyes, supra and Washington vy. Davis, 426 U.S. 229, 241 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (dictum), writes: f “It is also well established that, in a school system with a history of segregation, terminating a disproportion- ate number of black faculty raises an inference of discrimination, The school authorities must rebut the prima facie case by showing through clear and con- vineing evidence that permissible, racial neutral selec- tion criteria governed their conduct. Keyes v. School District No. 1, 413 U.S. 189, 209, 93 S.Ct. 2686. 37 L.Ed.2d 548 (1973); Chambers v. Hendersonville City Board of Education, 364 F.2d 189, 192 (4th Cir. 1966) ; see Washington v. Davis, 426 U.S. 229, 241, 96 S Ct. 2040, 48 L.Ed.2d 597 (1976) (dictum.’’)* . ra See als . if «4 « e — e 6 .. of “They establish unequivocally that a pri i discrimination shifts the burden to rE pine Prema oe the employee (or applicant) would not have gotten the post In uny event, even absent discrimination. See EEOC v Detr it Edison Co., supra, 515 F.2d at 259-260: Johnson v. Goodvear Tire & Rubber Co., 491 F.2d 1364, 1374-1375, 1380 (5th Cir 1974), . Ct McDonnell Douglas Corp. v. Green, 411 17.8. 799 802, 93 S.Ct. 1817, 36 L.Ed.2d 568 (1973). And those courts pr roid ue ‘huis ta ce pagans ae to the burden unless the employer proves its et Rags, ways ; ane yee Baxter v. Savannah Sugar Refining Soup, eee 37, 444-445 (5th Cir.), cert. denied, 419 U.S, 1033. 95 S.Ct 11 While there are distinguishing facts between the cases just cited and the instant case, such are not significant enough to cancel out the common applicability of the legal principle to all civil rights actions wherein there has been alleged deprivation of rights because of racial considera- tions and those racial considerations have been clearly and convincingly documented in the prima facie case. See: Hardy v. Porter, 443 F.Supp. 1164, 1171 (N.D. Miss 1977), citing Keyes notwithstanding the factual dissimilarities. Petitioner submits that, in light of the difficulty in estab- lishing a deprivation of rights based on race, once she established a “prima facie” case of discrimination pursuant to the requirements enunciated in McDonnell Douglas Corp. v. Green, supra, including therein uncontradicted document- ed evidence that the only reported considerations at the time of the adverse employment decision were racial, not only does she have the right to demand and to be shown that race was not a criterion in refusing to retain her but she also has the right to demand and to be shown such in a “clear and convincing manner.” It is precisely because of the difficulty in proving racial discrimination that this Court has seen fit to shift the burden from the employee to the employer once the employee has established a “prima facie” case of discrimination; and it is precisely because of these factors that this Court must assure that the 515, 42 L.Ed.2d 308 (1974) ; Pettway v. American Cast Iron Pipe Co., supra, 494 F.2d at 259-260; Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d at 1374-1380; Cooper v. Allen, 467 F.2d 836, 840 (5th Cir 1972). The reason for this is straightforward. ‘Unquestionably, it is now impossible for an individual discriminatee to recreate the past with exactitude.’ Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d at 1379. Such a showing is impossible precisely because of the employer’s unlawful action; it is only equitable that any resulting uncertainty be resolved against the party whose action gave rise to the problem.” (Footnotes omitted.) 12 employer does satisfy his burden in a “clear and convinc- ing’ manner once it is convincingly established in the prima facie case that the only reported considerations at the time of the adverse employment decision were race oriented in nature. It goes without saying that few, if any, persons would admit that race was a factor in their consideration of the employment of a person let alone the sole consideration in that regard. Petitioner submits, however, that some- thing more than silence in this regard (as in Harris v. Jones, 296 F.Supp. 1082 (D.C. Mass. 1969)—a housing discrimination matter) or a mere pronouncement that race was not a consideration or the sole consideration (as in Smith v. Adler Realty Co., 436 F.2d 344 (7th Cir. 1970)— another housing discrimination matter) must be established in order for the Respondents to meet their burden satis- factorily. Addressing himself to this point, Judge Sobeloff stated in North Carolina Teachers Association v. Asheboro City Board of Education, supra at page 750: “ .. [I]t must be insisted that bland assertions by the School board that its decisions were free of racial considerations do not suffice to discharge its burden . .” (Emphasis added). Petitioner submits that the Court below was in error when it found that the Respondents had satisfied their burden, once it shifted, in a clear and convincing manner, as they were required to do. The evidence in the Petition- er’s case in chief, when contrasted against the bland asser- tions of non discrimination by the Respondents in their ease along with their equally bland assertion that she was terminated because her teaching performance was less than adequate, without explaining reasonably, let alone convinc- ingly, the nature of the ostensibly race-neutral criteria and 13 procedures utilized to evaluate the Petitioner’s perform- ance, without explaining the reason that a white person was accorded different evaluatory treatment, at least in the procedures applied, and without adequately explain- ing the reason that no reference is made of her unsatisfac- tory work or alleged incompetence in the summary of the minutes of the evaluation meeting, can only lead reason- able people to conclude that, as a matter of law, the Re- spondents failed to satisfy their burden, notwithstanding their articulation of race neutral criteria as the reasons for their decision and action (two years after the decision and action). 2. This Court has never determined whether the mere artic- ulation of race neutral criteria, without more, meets the employers burden once it has shifted from the employee to the employer and where the Black professional’s Title VII prima facie case of individually oriented racial dis- crimination establishes that the only evidentially doc- umented factors discussed at the time of the adverse em- ployment decision were race oriented. Where a Black professional’s Title VII prima facie case of individually oriented racial discrimination establishes that the only evidentially documented factors discussed at the time of the adverse employment decision were race oriented, the mere articulation of race neutral criteria, without more, does not meet the University employer's burden, once it has shifted from the employee to the em- ployer when, as here, there is no evidential validation of the criteria and, in fact, there is evidence by the Respon- dents own witnesses, in addition to that of Petitioner’s own witnesses, that the subjective evaluation of a student’s work, one of the two race neutral criteria articulated, was not a valid criteria upon which to measure the competence of a teacher; when there is no evidentially established philosophical or other criteria upon which the Petitioner 14 was required to pursue her course study and when, in fact, those who had seen her teach and otherwise discussed her efforts with her found her teaching to be satisfactory.* Certainly, where, at best, there is contradictory evidence within the employer’s own case as to the validity of the evaluating crieria (as there is herein), the inference of racial discrimination attendant to the Petitioner’s Title VII prima facie case of individually oriented discrimina- tion cannot be rebutted by said race neutral criteria, par- ticularly when, as here, the evidence does not establish a comparative use of that criteria in other instances and when the evidence establishes that a white individual, be- ing evaluated contemporaneously with the Petitioner, was afforded different procedural amenities and the University Senate Subcommittee on Academie Freedom made a find- ing of the same, with recommendations for relief which were ignored by the Respondents (without reason there- for). In light of the established principle that “it is only equitable that any resulting uncertainty be resolved against the party whose action gave rise to the problem”, See: Day v. Mathews, supra at page 1086, in light of the princi- ple “that comparative data lies at the heart of a rebuttal of prima facie case of employment discrimination”, See: *The only other race neutral criteria enunciated by the Re- spondents, as an unreported/post decisional justification for their decision and action, was that the School of Architecture was changing its philosophy and proposing to hire only architectural degreed individuals. However, the uncontradicted evidence shows that, subsequent to the Petitioner’s termination, a white, non architectural degreed individual was, in fact, hired, possessed the very same academic credentials which the Petitioner possessed, and taught the very same course which the Petitioner initially taught. Moreover, the uncontradicted evidence shows that white males with non architectural degrees are presently on the faculty in the School of Architecture and, in some cases, have tenure. a 1 shale het 40 0h 15 East v. Romine, Inc., 518 F.2d 332, 339 (Sth Cir. 1975); See also: Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1284 (7th Cir. 1977), and in light of “the principle placing upon a party the burden of proving facts peculiarly within its own knowledge”, See: Day v. Mathews, supra at page 1086, note five (5) citing United States v. New York, N.H. &€ H.R. Co., 355 U.S. 253, 256, n.5, 78 S.Ct. 212, 2 L.Ed.2d 247 (1957), this case represents a question of tremendous public importance since it otherwise leaves a University employer free to merely articulate post decision race neu- tral criteria, without more, notwithstanding that the doc- umented evidential record (including evidence that the only reported considerations at the time of the adverse decision were racial), requires that a prima facie case be found under the principles enunciated by this Court in McDon- nell Douglas Corp. v. Green, supra. 3. This Court has never determined whether invalid race oriented considerations are cancelled out by the subsequent assertion of ostensibly race neutral criteria, without more. The majority of Circuit panel below held that, notwith- standing the District Court’s conclusion otherwise, the Petitioner did establish a prima facie case of individually based racial discrimination, under Title VII of the Civil Rights Act, in accordance with the requirements enunciated by this Court in McDonnell Douglas Corp. v. Green, supra. In substance she established that she is a Black person; that she was hired because, among other reasons, she ‘s Black and pursuant to an Affirmative Action effort by the Dean of the School of Architecture; that she was clearly competent, by background, to teach the courses which she was assigned to teach; that she was involved in the Sckool of Architecture; that she did perform competently, as a teacher, generally; that the only recorded discussion about her retention on the faculty, at the time she was being 16 reviewed and until the testimony given at the State Divi- sion of Human Rights, focused around race oriented matters and her personality (with attendant racial over- tones); that a white, non tenured woman was accorded greater opportunity in the evaluation process by the fac- ulty; that the University Senate Committee found that the evaluation process accorded to the Petitioner was improper and communicated the same to the Respondents with the recommendation that the Petitioner be retained in her position; and that the Respondents refused to even re- spond to the Senate finding and recommendation let alone implement it (See: Exhibit #’s 17, 19, 20 in the Record below, set forth herein, infra, as Appendix E). It goes without saying that, if at the evidentiary hear- ing before the New York State Division of Human Rights (upon which the case herein was submitted to the trial court below) there had been no race neutral reasons articu- lated by the Respondents as a basis for their decision to terminate the Petitioner, the Court below, having found that the Petitioner made out a prima facie case, would have been required to find, as a matter of law, that the reason for her termination was racially based and oriented (See: Exhibit # 14 in the Record below, set forth herein, infra, as Appendix D, which is the minutes of the student- faculty committee meeting whereat the Petitioner’s em- ployment status was discussed and wherein the only refer- ences to the Petitioner focus on race and _ personality oriented factors). See: Flowers v. Crouch-Walker Corp., supra, footnote for (4) at page 1283. None of the subse- quent race neutral reasons given by the Respondents at the evidentiary hearing two years after the termination are referred to in the minutes of said meeting. Merely because the Respondents articulated race neutral reasons for their decision (two years after the decision) Anta Vette tld 6 17 does not cause the race oriented reasons to disappear. They are unrebutted; and they are part and parcel of the evidentially documented reasons for the Petitioner’s ter- mination. Accordingly, her termination is racially infected and the racial infection cannot be expunged even by incor- poration therein of otherwise valid reasons (the Petitioner not conceding that, in fact, the ostensibly race neutral rea- sons articulated by the Respondents, subsequent to the termination, are valid but rather asserting that they were pierced by and through additional testimony). As in the area of housing discrimination under 42 U.S.C. Section 1982 (the Civil Rights Act of 1866), so too in the area of employment discrimination, under both 42 U.S.C. Section 1981 and Title VII of the Civil Rights Act of 1964 as amended (42 U.S.C. Section 2000(e) et seq.), race can be neither the sole consideration nor even a partial con- sideration in refusing employment or otherwise terminat- ing one from a job. See: Brown vy. Rollins, Inc., 397 F. Supp. 571 (W.D.N.C. 1974) (employment). Smith v. Sol D. Adler Realty Co., supra at pages 349-350 (housing) ; Moore v. Townsend, 525 F.2d 482, 485 (7th Cir. 1975) (housing); Zuch v. Husey, 394 F.Supp. 1028, 1047 (E.D. Mich. 1975) (housing); Williamson v. Hampton Manage- ment Company, 339 F.Supp. 1146, 1147 (N.D. Ill 1972) (housing) ; Drain v. Friedman, 422 F.Supp. 366, 370 (N.D. Ohio 1976) (housing); Bishop v. Pecsok, 431 F. Supp. 34, 37 (N.D. Ohio 1976) housing. Once the burden of going forth with the evidence has shifted from the plaintiff to the defendant, the defendant must come forward with evidence to establish that race was neither the sole reason nor even a partial considera- tion in refusing to rent an apartment to a Black person. In applying the same principles herein, Petitioner submits that the Court below could have come to no other conclu- 18 sion but that the Petitioner was discriminated against by the Respondents because of her race in violation of her federally asserted rights since the evidence reflects that, if race and race-oriented criteria were not the sole reasons for terminating the Petitioner from her position, they were at the very least a significant part of the reason for terminating her (See: Minutes of December 1, 1973 meeting/Exhibit 14); and, thus, her termination was ille- gal. See: Brown v. Rollins, supra, a case concerning it- self with discriminatory employment practices and, like the instant case, prosecuted under both the Civil Rights Act of 1866 (42 U.S.C. §1981) and the Civil Rights Act of 1964 as amended (42 U.S.C. Section 2000(e) ef seq.). See also: Cedeck v. Hamiltonian Federal Savings and Loan Association, 414 F.Supp. 495, 498 (i4.D. Mo. 1976), Affirmed 551 F.2d 1136 (8th Cir. 1977); Sek v. Bethlehem Steel Corp., 421 F.Supp. 983, 993 (E.D. Pa. 1976), Affirmed 565 F.2d 153 (38rd Cir. 1977); Gillin v. Federal Paper Board Co., Inc., 479 F.2d 97, 102 (2nd Cir. 1973) cited in Saracini v. Missouri Pacific Rail Co., 431 F. Supp. 389, 395 (E.D. Mo. 1977), in the context of a sex diserimina- tion claim. See also: Sprogis v. United Airlines, 444 F.2d 1194, 1198 (7th Cir. 1971), Cert. denied 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971); Equal Employment Opportunity Commission vy, Kallir, Phillips, Ross, Inc., 401 F.Supp. 66, 72, footnote 17 (S.D.N.Y. 1975). Consistency would require that, if as a matter of law racial factors are impermissible considerations in a hous- ing discrimination case brought under 42 U.S.C. Section 1982 (notwithstanding the existence of otherwise permis- sible considerations), so too, in an employment discrimina- tion case brought under 42 U.S.C. Section 1981 and 42 U.S.C. Section 2000(e) et seq., racial considerations are impermissible even if they were not the sole considera- Ope eer 4 | 3 ; . 4 : Gk = Pts ead be A= Se ae sr eens 19 tions; and, therefore, an adverse decision against an employee or potential employee would be terminally in- fected and legally impermissible where, as in the instant case, race was a factor (in a negative vein) even if not the sole factor behind the challenged action. In light of the fact that, at the time the decision herein was made the only evidentially documented references are to racial criteria (and personality characteristics with racial overtones), it is submitted that the ultimate termi- nation is necessarily racially infected notwithstanding the subsequent articulation of race neutral criteria. CONCLUSION For the foregoing reasons, the Petition should be granted. Respectfully submitted, NATHANIEL R. Jones, Esa. James I. Meyerson, Esa. 1790 Broadway—10th Floor New York, New York 10019 (212) 245-2100 Attorneys for Petitioner BE sashcatcdebemateieaseapetoenccoinceooieen September 29, 1978 a 20 Certificate of Service James I. Meyerson, Esq., one of the attorneys for the Petitioner herein, certifies that on the 29th day of Sep- tember, 1978, I did serve three copies of the foregoing Petition upon the attorneys for the Respondents by mail- ing the same, postage prepaid, first class, as follows: William Fitzpatrick, Esq. Bond Schoeneck & King One Lincoln Center Syracuse, New York 13202 Respectfully submitted, James I. Meyerson, Esq. 1790 Broadway—10th Floor New York, New York 10019 (212) 245-2100 Attorney for Petitioner Appendices Appendix A Opinion of the United States District Court for the Northern District of New York UNITED STATES DISTRICT COURT NORTHERN District or New YorxK 77-CV-588 GERALDINE PowELL, Plaintiff, Vv. Syracuse Unrversity, an educational corporate entity, Doctor Mervin Eacers, Chancellor of Syracuse Uni- versity, ScHoot oF ARCHITECTURE, a sub-unit of Syra- cuse University, Jutio San Joss, Acting Dean of the School of Architecture, Syracuse University, Defendants. APPEARANCES: NATHANIEL R. Jones, Esq. Attorney for Plaintiff N.A.A.C.P.—1790 Broadway New York, New York 10009 Bonn, ScHorNneck & Kine Attorneys for Defendants One Lincoln Center Syracuse, N. Y. 13202 James I. Mevexson, Esq. Of Counsel Wiiuram F, Firzpatrack, Esq. Of Counsel Epmvunp Port, Judge la 2a Appendix A MEMORANDUM-DECISION AND ORDER I. NATURE OF THE PROCEEDING Geraldine Powell, a black woman, is suing Syracuse University (SU), charging unlawful job discrimination on the basis of race and sex.’ Plaintiff was hired for one year to teach in the SU School of Architecture part-time. Her contract was renewed for a second year, but at the end of that year she was not rehired. She alleges that the termination of her employment was racially and sexually motivated, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Defendants are Syracuse University, the SU School of Architecture, Melvin Eggers, Chancellor of the Univer- sity, and Julio San Jose, Acting Dean of the School of Architecture. II. Bacxcrounp The faculty of the SU School of Architecture voted not to renew plaintiff’s contract in December of 1973. Her contract expired and her teaching obligations ended after the 1974 spring semester. On May 31, 1974, she filed a claim of discrimination based on race, color and sex with the New York State Division of Human Rights. After six days of hearings, the Division of Human Rights rendered a decision in defendants’ favor on November 25, 1975. In the meantime, as is required by Title VII, 42 U.S.C. § 2000e-5(f) (1), plaintiff filed a complaint with the Equal ? The complaint at all times mentions discrimination on the basis of both race and sex. At the hearing which became tine bulk of the record before this court, plaintiff seemed to argue racial diserimina- tion only. Similarly, plaintiff's brief deals only with racial dis- crimination. This decision, however, will treat plaintiff’s claim as alleging both racial and sexual discrimination. 3a Appendix A Employment Opportunity Commission (EEOC). In Sep- tember of 1975, plaintiff received her right to sue letter from the EEOC. Thus, all possible administrative rem- edies have been exhausted. Plaintiffs complaint was filed on December 15, 1975. Initially, she based her job discrimination claim on Title VII only. Defendants answered and raised the 90 day statute of limitations of Title VII as a defense. Plaintiff then moved to amend her complaint to state a claim under 42 U.S.C. §1981 also. The motion was granted by the Honorable Henry F. Werker, United States District Judge for the Southern District of ‘New York, who was sitting in this district by designation. Following discovery, the parties entered into a stipula- tion submitting the case upon the transcript of plaintiff’s administrative hearings before the New York State Divi- sion of Human Rights, stipulated facts and exhibits, and the parties’ briefs. III. Facts Plaintiff has a varied education and employment back- ground. She was an art major in high school but studied nursing at New York University, graduating with a Reg- istered Nurse’s degree in 1959. Several years later she returned to college and received a Bachelor’s of Fine Arts from SU in 1971. Her schooling at SU continued and she ultimately received a Master’s of Fine Arts in Environ- mental Design early in 1973. (Transcript of March 6, 1975, hearing (3/6 Tr.) at 23-24; Exh. 1). Her Master’s thesis concerned the relationship of low income housing to biack studies in Syracuse. (3/6 Tr. 24). While still working toward her Master’s, plaintiff heard that John Fisher, Dean of the SU School of Architecture, 4a Appendix A was trying to recruit black women for the faculty of that school. (3/6 Tr. 31). Dean Fisher explained that he was attempting to implement an affirmative action program in the School of Architecture. (Transcript of January 7, 1975 hearing (1/7 Tr.) at 8). As a result of this program, minority student enrollment in the School of Architecture increased dramatically during Fisher’s tenure as Dean.? In April of 1972 Fisher interviewed plaintiff for a posi- tion on the Architecture faculty. (3/6 Tr. 32-36). Plaintiff testified that Fisher was favorably impressed with her artistic portfolio. (Id.). Fisher thought that plaintiff would have her Master’s degree by the fall of 1972.3 (1/7 Tr. 55). Despite plaintiff’s lack of any architecture background and despite the fact that she had never before taught in a university (Jd.), Fisher hired plaintiff to teach basic de- sign for the academic year 1972-73. She was given the position of part-time lecturer at an annual salary of $3,000. (Exh. 5). In the fall of 1972 plaintiff began teaching basic de- sign. She taught one class of 17 students which met twice a week for three hours. (3/6 Tr. 40; Exh. 43). Basie de- sign is described in the School of Architecture’s catalog as an introduction to design—an~attempt to teach both the perception and depiction of perspective, proportion, color and geometry. (See Exh. 24). In the curriculum, basic * When Fisher came to SU in 1971, there were only two bl ; k students in the School of Architecture. He testified that the pon rollment of blacks grew to 34, and the total minority enrollment to 63, by the 1974-75 school year. Transcript of March 20, 1975 erg 3 —o i re stipulated facts indicate that the ack student enrollment for the year 1974-75 was 2 Stipulated Facts 7. ce ee ee 3 Plaintiff received her Master's hf eS 1/7 Tr. 54. ers early in 1973. Exhibit 1; see 5a Appendix A design serves as the first of many design courses which the student takes throughout his or her study of architec- ture. (1/7 Tr. 22, 44-45; Exh. 24). During her first semester, plaintiff received no criticism from other faculty members about her teaching. She testi- fied that she had no major problems with her new duties. (3/6 Tr. 42-43). In the fall of 1972, before he ever saw any of her stu- dents’ work, Dean Fisher was pleased with plaintiff and her attitudes towards teaching. (Transcript of June 19, 1975 hearing (6/19 Tr. 651). He met with her in December to discuss her future in the School of Architecture. (3/6 Tr. 45). Fisher was interested in promoting plaintiff to a full-time position. (Transcript of March 20, 1975 hear- ing (3/20 Tr. 88). The Dean foresaw plaintiff teaching half-time and working in a community development pro- gram for the other half. (Id. at 91). This promotion was contingent both on budgetary increases and on a Yale professor coming to SU to run the community develop- ment program. (Id. 90. 93). Plaintiff, however, construed the Dean’s suggestions as an offer (3/6 Tr. 45), which she requested to be put in writing. (Id. at 47). The plaintiff did not receive the promotion mentioned by the Dean. First, the Yale professor chose not to come to SU (3/20 Tr. 95-96). Secondly, and more importantly, the School of Architecture’s Committee on Appointments, Tenure and Promotion (Tenure Committee) met during the Spring of 1973 and voted not to expand plaintiff’s teaching responsibilities. (Jd. at 99; 1/7 Tr. 68). At that time the Tenure Committee met to review the work of all the basic design instructors. (3/6 Tr. 8). Plaintiff made a short presentation to the Tenure Committee. (1/7 Tr. 36). The committee, after evaluating plaintiff's teaching 6a Appendix A performance (see Jd. at 105-11), voted to continue plain- tiff on the same level but with the condition that she not teach basic design. (Jd. at 68). Fisher informed plaintiff that her position would not be expanded to full-time (3/6 Tr. 50) and that she would no longer teach basic design. (1/7 Tr. 69). Since fewer freshmen would be entering the school the next fall, fewer sections of basic design would be taught. (See Exh. 43). The Dean told plaintiff she would not be teaching basic design because of this decrease in enrollment (1/7 Tr. 69); he did not tell her that the Tenure Committee had voted not to continue her for basic design. (6/19 Tr. 633). Despite the Tenure Committee’s action, Fisher unilater- ally promoted plaintiff to part-time visiting assistant pro- fessor. This promotion was accompanied by a raise in salary to $5,500.00 (3/20 Tr. 108-109), the same salary paid to all other part-time assistant professors. (Id. at 116). Thereafter, confusion developed about plaintiff’s teaching responsibilities for the following year. After a discussion of the possibility of her teaching the history of non-western architecture, plaintiff began preparation for this course. The Dean then decided she would not teach this course but could serve instead as a guest lec- turer. (3/6 Tr. 54-55; 3/20 Tr. 112). Finally, the terms for plaintiff’s position the following year were ironed out. She would teach architectural rendering, deliver five guest lectures in non-western architecture,‘ and serve as minor- ity student counsellor. (1/7 Tr. 70; 3/20 Tr. 112-114). Plaintiff's rendering course was only a two-credit course, as compared to three credits for basic design, so Fisher * Although scheduled to give five lectures in non-Western archi- —— plaintiff only delivered one and one-half lectures. 3/20 r. ; | | ; Ta Appendix A felt that the guest lectures made up for the decrease in hours taught. (Id.) Rendering is a method of architectural drawing which attempts to represent a building in perspective as it will appear when constructed (3/20 Tr. 141). Rendering is not technical drawing for the building but, rather, a pic- torial presentation of the building to a client. One fac- ulty member testified that a rendering can attempt to portray the building photographically or, on the other hand, can try to convey something of the ideas or concepts embodied in the building’s architecture. (Transcript of May 15, 1975 hearing (5/15 Tr.) 345-46). Professor Ker- mit Lee testified that rendering is a technically oriented architecture discipline (transcript of July 7, 1975 deposi- tions (7/7 Tr.) 18), and Dean Fisher felt that it should only be taught by architects. (1/7 Tr. 43). Plaintiff and other faculty members disagreed though; they felt an artist could teach rendering. (See 3/6 Tr. 56-57; 3/20 Tr. 41). In November of 1973, Dean Fisher told plaintiff that the Tenure Committee was again planning to review her work. (1/7 Tr. 72; 3/20 Tr. 123). Fisher wanted plaintiff to advance to full-time employment. (1/7 Tr. 73). On the Wednesday prior to Thanksgiving, he told her to submit a summary of her thesis and examples of the best work of her students to him. (7/7 Tr. 97). Although the Dean testified that he told plaintiff she had until December 1 to submit this material, (Jd.), plaintiff was under the impression that she had only a couple days in which to complete her submission. (7/7 Tr. 100; 3/6 Tr. 76). She hand-wrote a summary of her thesis (/d.), and presented a random sampling of her students’ work (7/7 Tr. 67). Plaintiff testified that she was unable to compile adequate 8a Appendix A examples of her students’ work because they were on Thanksgiving recess. (Jd. at 66). She further testified that her students usually kept their good work but left their poorer work with her. (Id.). Despite these problems, plaintiff did not request a postponement of the meeting. (Id. at 98). The Tenure Committee met to consider plaintiff’s future on December 1, 1973. Nine members were present, Dean Fisher, six faculty members and two students. (Exh. 14). Fisher wanted to consider expanding plaintiff’s position to full-time but the committee chose only to vote on con- tinuation or termination of present positions. (1/7 Tr. 131-34). Professor VanKeuren, Chairman of the Tenure Committee, read the summary of plaintiff’s thesis aloud. (1/7 Tr. 134; 3/20 Tr. 140). Discussion ensued about the subject of plaintiff's statement and about plaintiff gener- ally. Examples of plaintiff’s students’ work were exam- ined by all the committee members and a vote was taken by secret ballot. The vote was eight to one against con- tinuing plaintiff in the School of Architecture. (Exh. 14). Dean Fisher cast the lone vote in plaintiff’s favor. (3/20 Tr. 125). All the eight committee members who voted against the plaintiff testified as to the reasons for their votes. Pro- fessor VanKeuren voted no, mainly on the quality of plaintiff’s students’ work, which he described as “extremely poor” (3/20 Tr. 145) and on cross-examination as “ex- traordinarily poor.” (Id. at 176). Professor Skoler like- wise voted no on the basis of the student work which he felt was unsatisfactory (Id. at 234), and not “of sufficient quality or standards as to support reappointment.” (Id. at 213). Professor San Jose (now Associate Dean of the 9a Appendix A School of Architecture) voted no for the same reason, the inadequacy of her students’ work product, along with his impressions from the general discussion of plaintiff. (5/15 Tr. 343). Darrel Rippeteau, who was then a student in his final year at the School of Architecture, voted no on the basis of the “low level” of the students’ work and his belief that the school should have a more qualified person teaching. (Jd. at 271). Professor Gabriel voted no on the basis of plaintiff’s background and her students’ work. (6/19 Tr. at 461). Gabriel felt that, although faculty members need not be architects in order to teach, they should have some expertise in the area of their instruction. (Id. at 495-96). John Livengood, who was a fourth year architecture student at the time, voted no because of plain- tiff’s lack of qualifications to teach rendering. (Jd. at 553). Professor Lee, the only black member of the Tenure Com- mittee, voted against continuing plaintiff on the basis of her students’ work, which he felt was not sufficiently de- veloped to permit them to continue their architecture edu- eation, (7/7 Tr. 11, 22), and on the basis of his observa- tions of plaintiff’s studio. (Id. at 26). Finally, Professor Schueller voted no mainly on the inadequacy of plaintiff’s background. He felt she was unable to strengthen the school’s curriculum (Id. at 95), and also lacked the quali- fications necessary to translate her design ideas into ar- chitectural design. (Id. at 91). Each of the members of the Tenure Committee testified that his vote was not influenced by racial or sexual dis- crimination. This testimony is credited along with the reasons articulated by the committee members for their negative vote. Cross-examination was unable to reveal any suggestion of discriminatory motive on the part of any committee member. This finding accords with the Dean’s 10a Appendix A statement that the committee did not consider plaintiff in terms of her color. (1/7 Tr. 159-160). The criteria used to evaluate plaintiff were relevant to the decision before the committee and were not applied differently to plaintiff than to other faculty members. Plaintiff infers discrimination from the result of the vote. (3/6 Tr. 102-04). She contends that the committee discussion questioned the existence of “black architecture” (See Exh. 14) and thus considered her in a racial setting. This discussion, however, was in response to plaintiff’s submitted statement which postulated the existence of a “hlack aesthetic’ and called for recognition of a black perspective for understanding the needs of the black com- munity and black students. Any committee discussion which then made reference to race followed naturally from the reading of the statement. After plaintiff injected the question of black values into the committee’s consideration of her, she should not expect them to ignore the ideas she presented. Plaintiff also infers discrimination from different treat- ment which was afforded other faculty members. Consid- eration of Ursula Lesnikowski, another part-time faculty member, was deferred to another meeting, (See Exh. 14); however, her vote was deferred because of insufficient material on which to judge her. (5/15 Tr. 302). In con- trast, plaintiff had submitted sufficient material; unfor- tunately the committee judged it to be inadequate. Fur- thermore, plaintiff was not the only faculty member ter- minated at this meeting. David Allor, a white male (See Exh. C), was also terminated. (Exh. 14). Plaintiff also challenged the committee’s decision by introducing testimony of other faculty members who felt ‘ahs linda Ss it eh: ai ER Pel lla Appendix A that plaintiff should not have been terminated. Such tes- timony only raises a difference of opinion with the com- mittee’s conclusion, however, and does not provide any evidence or even suggestion of discrimination. Professor Snyder judged plaintiff’s performance teaching basic de- sign as average (3/20 Tr. 17) or adequate (Id. at 34). Professor Richards felt that she was a capable artist and that the work of her students was adequate. (Jd. at 41). Also, Dean Fisher testified that plaintiff’s work was satis- factory, minimally acceptable. (3/19 Tr. 620). These opinions might have been relevant to the Tenure Com- mittee’s evaluation, but they are not relevant to the issues in this suit. Certainely, this praise of plaintiff, if it can be called that, is not so unqualified as to raise an inference of improper motive when the Tenure Committee voted against her.® Finally, it should be pointed out that, on the few occa- sions when plaintiff received special treatment, whether or not related to her race and sex, she was always treated favorably. Dean Fisher obtained remitted tuition for her although, as a part-time faculty member, she was not en- titled to this benefit. (6/19 Tr. 605; Exh. 6), The Dean also testified that, in his opinion, had plaintiff not been a black woman, she would not have been rehired for a second year. (1/7 Tr. 173-74; 6/19 Tr. 621-22). ’ Fisher had been very encouraging to plaintiff during her first semester at the School of Architecture, but when he eventually saw the work of her basic design students, he admitted that he was disappointed. 6/19 Tr. 651. 6 Favorable references of plaintiff written by Dean Fisher, see Exhs. 8, 12, do not support plaintiff’s case. They were irrelevant to the Tenure Committee’s consideration of plaintiff, 1/7 Tr. 79, and were only natural in view of the Dean’s efforts to help plain- tiff’s career. 12a Appendix A After the December 1 meeting of the Tenure Comittee, Fisher called the plaintiff and relayed the bad news.’ (3/6 Tr. 77). He told her that he thought the committee thought her too “nationalistic.” (1/7 Tr. 148). Fisher testified, however, that he was upset over the vote and was guessing why the committee had rejected her. (Jd. at 149). Although this offhand remark appears to have pro- vided the seed for much of the case argued by plaintiff’s attorneys, it is unsubstantiated by the other evidence and is discounted in view of the Dean’s advocacy in plaintiff’s favor before the Tenure Committee. Fisher asked plaintiff for a letter of resignation, which she refused to tender. (3/6 Tr. 77). She appealed the Tenure Committee’s decision to the Subcommittee on Ac- ademiec Freedom which found no suggestion of discrimina- tion but did feel that the review of plaintiff's position may have been improper. (See Exh. 16, 17). It suggested offering plaintiff another position. Dean Fisher did not agree with the conclusions of the Subcommittee on Ac- ademice Freedom and refused to adopt its recommendation. (Exh. 22). In May of 1974, plaintiff received a letter of termination. (Exh, 21). Plaintiff filed timely complaints with the New York State Division of Human Rights and the EEOC. After receiving her right to sue letter, she commenced this action. The complaint demands declaratory judgment of the viola- tion of plaintiff’s rights, injunctive relief against future discrimination, reinstatement, back pay, $200,000.00 actual and punitive damages, and costs and attorneys’ fees, *Some time in December, at a meeting of the Student Faculty Board, Fisher moved that the Tenture Committee’s recommenda- tion to terminate plaintiff not be adopted. His motion was de- feated. 6/19 Tr. 618. oinkzd nln Lea a Ae al BOR aie add | hi Se lS ie RII tate SS tt 13a Appendia A IV. ContTENTIONS Plaintiff contends that she was fired because of her race and sex. She argues that she was qualified for the faculty positions she held, that SU later hired white persons with similar qualifications for the same positions and that the reasons expressed by the Tenure Committee in voting to terminate her are not legally sufficient to uphold her ter- mination, Defendants answer that plaintiff has presented no ey- idence of discriminatory motive behind her firing. They argue that the reasons expressed by the members of the Tenure Committee in voting against retaining plaintiff are valid and related to their legitimate concerns for the qual- ity of the faculty. Moreover, defendants argue that the courts must be especially cautious about second-guessing university decisions which relate to faculty hiring and firing. V. Trrzte VII Jvurispictrion One of the defenses in the defendants’ answer is that the action is barred by reason of plaintiff’s failure to com- mence it within 90 days of the receipt of her right to sue letter. However, the defendants do not argue the point in their brief. Nevertheless, because a question of jurisdic- tion is involved, see DeMatteis v. Eastman Kodak Co., 511 F.2d 306 (2d Cir.), aff’d as modified, 520 F.2d 409 (2d Cir. 1975), it is incumbent upon me to consider this question, sua sponte.’ § Plaintiff has amended her complaint to allege a claim under 42 U.S.C. § 1981. The complaint was filed and amended well within the three year statute of limitations for § 1981 claims. (oss v. Revlon, Inc., 548 F.2d 405 (2d Cir. 1976). Nevertheless, because Title VII and § 1981 are independent remedies, see Johnson v. Railway Express Agency, 421 U.S. 454 (1975), and because the l4a Appendix A The question of jurisdiction arises against this factual background. The EEOC sent a form right to sue letter to the plaintiff by registered mail. Plaintiff received the letter on September 10, 1975, thereby requiring her to commence her action within 90 days of that date. 42 U.S.C. § 2000e-5(f)(1). On December 4, 1975, well within the 90 day period, the Clerk of the Court at Utica, New York received from the plaintiff’s attorney the original and copy of the complaint in this action, together with a pro- posed summons and $15.00 filing fee. Instead of filing the complaint by affixing his filing stamp, he returned the summons, complaint and filing fee to plaintiff’s attorney with a form letter requesting plaintiff to complete Form 44a, Civil Cover Sheet, and a USMS Form 285 for each defendant, Marshal’s Service of Process forms, pursuant to Rule 9(h) of the General Rules for the United States District Court, Northern District of New York (local rules). He also advised counsel that the local rules re- quire designation of counsel within the district for service of papers. In order to meet the requirements imposed by the Clerk, counsel filed the papers jointly pro se with the plaintiff and designated her address within the district for the service of papers. Healso completed and returned the other summons submitted to him, together with the forms and the filing fee. As a result of the time consumed by these maneuvers, the complaint appears to have been filed formally on December 15, 1975, outside the 90 day period. necessary proof for a § 1981 claim differs from that for a Title VII claim, see Washington v. Davis, 426 U.S. 229 (1976). con- sideration of this jurisdictional question is appropriate. 15a Appendix A Without faulting the Clerk for strictly adhering to Rule 9 of the local rules, I regard the omission to supply the additional information requested by the Clerk as an ir- regularity and not a matter of substance affecting the time of filing. Under the circumstances disclosed herein, I find that the complaint was filed when it was received by the Clerk with the filing fee on December 4. “The lodging of a peti- tion with the Clerk to be ‘filed’ by him is a ‘filing’.”” United States v. Missco Homestead Ass’n., Inc., 185 F.2d 283, 285 (Sth Cir. 1950); see also Freeman vy. Giacomo Costa Fu Andrea, 282 F. Supp. 525 (E.D. Pa. 1968). The require- ment that a complaint be filed within 90 days has been liberally construed in order to effect the general purposes of Title VII. See Houston v. General Motors Corp., 477 F.2d 1003 (8th Cir. 1973) (permitting a complaint to be filed outside the statute when the right to sue letter had been filed within). See also Moshos v. District Council of New York, 386 F. Supp. 21 (S.D.N.Y. 1974). The princi- ple was succinctly stated in Weiss v. Syracuse University, 522 F.2d 397 (2d Cir. 1975): [A]lthough compliance with these requirements is a jurisdictional prerequisite to maintenance of a civil action, ... the rigid insistence on meticulous observ- ance of technicalities unrelated to any substantive purpose is inappropriate. Id. at 412. (citations omitted). The defense of lack of jurisdiction is therefore without support. VI. No Tirtz VII Viouation The starting point for analysis for any job discrimina- tion claim under Title VII is McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 16a Appendix A The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (ili) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications, .. . The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. Id. at 802. If defendants succeed in establishing a legiti- mate ground for their action, the burden returns to the plaintiff, this time “to show that [defendants’] stated rea- son for [plaintiff’s] rejection was in fact pretext.” Id. at 804. When job discrimination is alleged by an unsatisfied university faculty member, Faro v, New York University, 502 F.2d 1229 (2d Cir. 1974) teaches that: Of all fields, which the federal courts should hesitate to invade and take over, education and faculty appoint- ments at a University level are probably the least suited for federal court supervision. Dr. Faro would remove any subjective judgments by her faculty col- leagues in the decision-making process by having the courts examine “the university’s recruitment, compen- sation, promotion and termination and by analyzing the way these procedures are applied to the claimant personally” (Applt’s Br. p. 26).... Such a procedure, 17a Appendix A in effect, would require a faculty committee charged with recommending or withholding advancements or tenure appointments to subject itself to a court in- quiry at the behest of unsuccessful and disgruntled candidates as to why the unsuccessful was not as well qualified as the successful. Id, at 1231-32. Application of Faro indicates the plaintiff has failed to establish a prima facie case under Title VII. Two elements of her case are unquestionably established. Plaintiff is a member of a racial minority and she has been rejected,° in this case, terminated from her position. Yet plaintiff must also show that she was qualified for the faculty posi- tion which she held and that, after her termination, her position was filled by another teacher of equivalent qualifi- cations. McDonnell Douglas, supra, 411 U.S. at 802. Dean Fisher testified that, generally, a degree in archi- tecture is a prerequisite to teaching in the School of Archi- tecture. (1/7 Tr, 40-41). Exceptions are made, however, for persons teaching history of architecture, computer ap- plications to architecture, and community development. (Id.) The record also reveals that some of the basic de- sign teachers had no architecture degree. (Jd. at 42; Exh. B). Despite these facts I would ordinarily hesitate to ® The plaintiff in McDonnell Douglas had been laid off in a gen- eral reduction of defendant’s work foree. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 794 (1973). Following a series of civil rights demonstrations, plaintiff sought to be rehired, when defendant advertised of job openings. Defendant refused to re- hire him and he sued. Jd. at 796. The language of the McDonnell Douglas test is, therefore, couched in terms of application for employment and rejection. The same test applies, though, to situations of illegal firing, and the language of the test is adapted herein to that situation. See Id. at 802 n. 13; 42 U.S.C. § 2000e-2 (a) (1). 18a Appendix A evaluate plaintiff’s qualifications to teach on the architec- ture faculty. The question of qualifications itself is per- haps best left to the university under Faro. See Labat v. Board of Higher Education of the City of New York, 401 F. Supp. 753, 756 (S.D.N.Y. 1975). Nevertheless, plaintiff was hired by Dean Fisher and was rehired once after appearing in front of the Tenure Committee in the spring of 1973. Under these circumstances, I will assume arguendo, plaintiff has established, for purposes of her prima facie case, that she was qualified for the job." The same conclusion cannot be reached, however, when plaintiff attempts to prove that she was replaced by teach- ers of the same qualifications. After plaintiff was termi- nated, SU hired Professor Gray to teach architectural rendering. His two degrees, including a Master’s, were both in architecture, contrasted with plaintiff's degrees in fine arts. He also had teaching experience. (3/6 Tr. 20). Gray’s background in architecture precludes any finding of equivalent qualifications. Plaintiff also points to two white women who were hired subsequent to her termina- tion, and claims that these women replaced her on the architecture faculty. MaryAnn Smith was hired in the fall of 1974 to teach History of Architecture. (Stipulated Facts Exh. B). Plaintiff had never taught History of Achitec- ture, however." The other woman, Martha Dwyer, was hired in the fall of 1975 to teach Basie Design. (Id.). Since Dwyer was hired to teach Basic Design over two years ° This conclusion may seem anomalous in view of her subsequent firing, which did not violate either Title VII or § 1981. Plaintiff. however, could appear to be qualified on the basis of her back- ground yet be deficient when tested by actual performance. ‘Furthermore, Smith had a Doctorate in Architectural Historv precluding a finding of equivalent qualifications with plaintiff. (Stipulated Facts Exh. B). "Toc 19a Appendix A after the plaintiff ceased teaching that course, no finding that Dwyer was replacing plaintiff on the faculty is justi- fied. Plaintiff is unable to show that after she was fired, she was replaced by someone of equivalent qualifications. She therefore has failed to prove her prima facie case. However, assuming arguendo, the establishment of a prima facie case, the burden would shift to defendants “to articulate some legitimate, nondiscriminatory reason for [plaintiff's termination].” McDonnell Douglas, supra, 411 U.S. at 802. Defendants have met this burden. A contract for the academic year 1974-75 was not offered to her for one reason only. The Tenure Committee honestly reached the conclusion that plaintiff’s performance fell short of teaching requirements, after affording her a fair opportunity to demonstrate her teaching ability. This de- termination was devoid of any racist or sexist base. The plaintiff has not demonstrated the assigned reason to be a pretext for prohibited discriminatory conduct. All of the eight members of the Tenure Committee who voted against plaintiff testified that they voted to terminate plaintiff essentially because of the poor work product of her render- ing students, and her inadequate architectural background. These are matters of obvious concern to the architecture faculty and, therefore, are unquestionably legitimate rea- sons for the vote. Plaintiff raises a number of attacks on the validity of the Tenure Committee’s vote. The main one concerns the alleged lack of valid objective criteria by which the Tenure Committee could evaluate plaintiff. The stipulated facts disclosed that prior to 1975, no written guidelines existed for the regulation of tenure and promotion decisions within the School of Architecture. (Stipulated Facts 9] 37-44). 20a Appendix A Likewise, prior to the fall of 1974 no document existed which set forth “the philosophy and basie approach of School of Architecture” concerning the teaching of render- ing or basie design. (Jd. §§ 52-58). Absent such objective written guidelines, plaintiff contends that the committee was left with only its subjective judgment and was, there- fore, unable to reach a valid decision. Plaintiff next con- tends that the committee failed to consider that her render- ing students were poor students and that, consequently, their poor work was no reflection on her adequacy as a teacher. She further argues that no consideration was given to any improvement of the work of the students which had occurred under her guidance. Also, the qualifi- cations of some of the committee members to judge her work are challenged. The simple answer to all these arguments is that they are beyond this court’s purview. The issue in this case is whether or not the defendants acted discriminatorily. The institution of a law suit dees not transform the court into the Tenure Committee. These challenges should be ad- dressed to the academicians.'? Respect for academic free- dom and concern for the integrity and quality of higher education have created great reluetance in the courts about interfering with these university decisions. See Faro v. New York University, 502 F.2d 1229 (2d Cir. 1974); State Division of Human Rights v. Columbia University, 39 N.Y. * Plaintiff's argument that the Tenure Committee was per se unable objectively to evaluate plaintiff without written standards is specious on its face. Historically, it is absurd to suggest that, for over 100 years, the School of Architecture was unequipped to choose its faculty properly. Conversely, any suggestion that mere written criteria enhance either the objectivity or propriety of a tenure decision gives undue respect to the formality of putting words on paper. 21a Appendix A 2d 612, 385 N.Y.S.2d 19 (1976), cert. denied, 45 U.S.L.W. 3571 (February 22, 1977). A court should be extremely reluctant to evaluate any faculty’s ability to promote and tenure its own members, especially when it lacks any ex- pertise concerning either the specialty of that faculty, here architecture, or the field of educational administration generally. Plaintiff next argues that her firing was racially dis- criminatory because she was hired, in part, on account of her race, yet was not thereafter properly trained for the job; never told of any criticism of her work; nor given proper help. Relying on the district court opinion in Long v. Ford Motor Co., 352 F. Supp. 135 (B.D. Mich. 1972), rev'd, 496 F.2d 500 (6th Cir. 1974),'* plaintiff contends the failure to train her adequately, under these circumstances, is a violation of Title VII. Long, however, held failure to train was actionable only if plaintiff could show treatment dissimilar from that given white persons or similar on its face yet dissimilar in effect. In the case at bar no such showing has been made. Plaintiff has failed to demonstrate that any new faculty members were treated differently or given any more guidance or supervision. Implicit in plain- tiffs argument is the suggestion that the School of Archi- 13 The district court held that merely hiring a black person for a given job does not provide equal employment opportunity. As- suming inadequacies in their education and background, black people need adequate job training. “If these people are not given adequate job training and are, as a result, terminated, then un- equal employment opportunity still results.” Long v. Ford Motor Co., 352 F. Supp. 135, 140 (E.D. Mich. 1972). It is highly doubtful that any such principle would be applicable to the case at bar. The position of a university professor is very different from those positions for which Long was hired, production foreman and wage analyst. 22a Appendix A tecture is obligated to train its faculty members. This suggestion is untenable."* Plaintiff lastly argues that, to the extent her termination was based on her inadequate architectural background, de- fendants effectively are foreclosing black women from teaching on architecture faculties, Statistics indicate that there are presently very few black women who are practic- ing architects within the United States. (See Exh. 42). Therefore, if an architecture background is a prerequisite to teaching, most black women are kept off the faculties of architecture schools. This argument misstates the facts of the case. Plaintiff was given the opportunity to teach on the SU architecture faculty, despite the absence of any architecture background. Other faculty members without an architecture background have managed to teach suc- cesstully and obtain tenure. When plaintiff was ultimately terminated, the major criticism voiced by the members of the Tenure Committee was the unsatisfactory work of her students. Having been provided with the opportunity to teach, plaintiff did not meet the standards of the architec- ture faculty. The law does not guarantee plaintiff a posi- tion on the faculty. It only entitles her to nondiscrimina- tory treatment. See Logan v, St. Luke’s Hospital Center, 428 F. Supp. 127, 130 (S.D.N.Y. 1977). Here, where the School of Architecture provided plaintiff with the oppor- tunity to teach, it certainly cannot be charged with fore- closing black women from serving on the faculty. * There is no disagreement with the notion that all faculty mem- bers must be treated equally. If some are trained for their job by the School of Architecture, all must be trained without regard for race or sex. See Long v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1974). Rather, objection is raised with plaintiff's argument that the school is obligated to train its faculty in skills they already should possess. ; 23a Appendix A In conclusion, I find that defendants’ reasons for termi- nating plaintiff were legitimate, nondiscriminatory, and not a pretext for discrimination based on either race or sex. McDonneil Douglas Corp. v. Green, 411 U.S. 792 (1973); see Peters v. Middlebury College, 409 F. Supp. 857 (D. Vt. 1976). No violation of Title VII has been established. VII. No § 1981 Vionatrion 42 U.S.C. 41981 “affords a federal remedy against dis- crimination in private employment on the basis of race.” Johnson v. Railway Express Agency, 421 U.S. 454, 460 (1975). In order to prove a violation of 4 1981, plaintiff must meet a heavier burden than is required by Title VII. She must prove a racially discriminatory motive on the part of the defendants. Washington v. Davis, 426 U.S. 229 (1976). In this case, plaintiff has entirely failed to demon- strate racially discriminatory motive and, therefore, has failed to establish a violation of § 1981. This Memorandum-Decision and Order shall constitute the court’s findings of fact and conclusions of law. Fed.R. Civ.P. 52(a). The court having jurisdiction of the subject matter and the parties hereto, for the reasons herein, it is OrpvERED, that the plaintiff's complaint herein be and it hereby is dismissed; and it is further OrpEnED, that a judgment dismissing plaintiff's complaint be entered by the Clerk of the Court. Dated: August 5, 1977 Auburn, New York /s/ Epmunp Port Senior U.S. District Judge 24a Appendix B Opinion of the United States Court of Appeals for the Second Circuit UNITED STATES COURT OF APPEALS For tHE Seconp Circuit No. 528—September Term, 1977. (Argued January 18, 1978 Decided July 13, 1978.) Docket No. 77-7490 GERALDINE PowWELL, Plaintiff-A ppellant, v. Syracuse University, et al., Defendants-Appellees. Before: Moors, SmitH and MansFIELp, Circuit Judges. Appeal from dismissal of Title VII civil rights action by minority teacher in the United States District Court for the Northern District of New York, Edmund Port, Judge. Affirmed. James I. Meyerson (N.A.A.C.P., New York, N.Y.), for Appellant. . eee 25a Appendix B Davin N. Sexton (Bond, Schoeneck & King, Syracuse, N.Y., William F. Fitzpatrick, of counsel), for Appellees. Smiru, Circuit Judge: Geraldine Powell, formerly a visiting assistant professor at the Syracuse University School of Architecture, appeals from a judgment of dismissal entered in the United States District Court for the Northern District of New York, Edmund Port, Judge. Judge Port found that, contrary to the appellant’s contentions, the university had legitimate, nondiscriminatory reasons for terminating Ms. Powell’s employment, and was accordingly not in violation of either Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. or 42 U.S.C. §1981. We find no error in the result reached by the court, and affirm the judgment. i. In December, 1973, Ms. Powell was informed by the dean of the Architecture School that her contract would not be renewed for the 1974-75 academic year. She subsequently filed a claim of discrimination based on race, color, and sex with the New York State Division of Human Rights. After hearings before an agency examiner, the Division of Human Rights dismissed the appellant’s complaint for failure to prove that she was terminated from her em- ployment, or denied equal terms, conditions, or privileges of employment, because of her race, color, or sex.’ While 1 The Division of Human Rights also found that appellant failed to prove that the university retaliated against her upon learning that she had filed a claim of discrimination. 26a Appendi« B the state complaint was pending, appellant filed a similar complaint with the Equal Employment Opportunity Com- mission (“EEOC”), receiving a right-to-sue letter on Sep- tember 10, 1975.2 She subsequently commenced this action within the 90-day period required by statute.» The case was submitted to the district court upon the transcript of hearings before the New York State Division of Human Rights, stipulated facts and exhibits, and the parties’ briefs.‘ II. The findings of basic fact made by the district court are well supported by the record. Accordingly, we accept them for purposes of this appeal, and summarize them below. Ms. Powell has an extensive academic background. She studied art in high school, but later changed fields, receiv- ing a Registered Nurse’s degree from New York Univer- sity in 1959. In 1971, she received a Bachelor of Fine Arts degree from Syracuse University, and later was awarded the Master of Fine Arts degree in Environmental Design. Her master’s thesis concerned the relationship of low in- come housing to black studies in Syracuse. In April, 1972, appellant was interviewed for a teaching position by the Dean of the Syracuse University School of Architecture. Despite the fact that appellant had not yet to This letter was dated August 28, 1975. 3 The Office of the Clerk of the United States District Court received appellant’s complaint on December 4, 1975. Because of bookkeeping technicalities, the complaint was not formally filed until December 15, 1975. The complaint was treated by the district court as timely filed. See Appendix at 12-14. 4 The complaint was subsequently amended to include a charge brought pursuant to 42 U.S.C. §1981. ew ee Se Pom en 27a Appendiaz B earned her Master’s degree, did not have any formal train- ing in architecture, and had no teaching experience, she was hired for the academic year 1972-73 at the rank of lecturer (part-time), receiving an annual salary of $3,000. During the fall semester, 1972, appellant taught one sec- tion of the basic design course. Prior to 1975, a detailed student manual for this course did not exist, and each section teacher was free to fashion his own course curric- ulum after reading the course description in the School of Architecture’s annual bulletin, and consulting with the dean and other faculty members teaching the course. Ms. Powell did not receive any criticism from other faculty members during her first semester on the faculty. In December, 1972, appellant again met with the dean, who expressed an interest in promoting her to a full-time position. The following spring, however, the school’s Com- mittee on Appointments, Tenure, and Promotion voted not to promote the appellant, but to permit her to continue teaching part time on the condition that she not teach basic design. Appellant was told that she would not be teaching the design course because of a decrease in enrollment; she was not told about the committee’s vote. The dean, on his own initiative, promoted Ms. Powell to the rank of part-time visiting assistant professor and raised her salary to $5,500 per year. The parties did not enter into a written agreement concerning the 1973-74 school year at that time, and there was subsequently con- siderable misunderstanding as to appellant’s teaching re- sponsibilities. It was finally determined that she would teach architectural rendering,’ serve as advisor to minority 5 No formal description of the rendering course was developed until September, 1974. (App. at 129) The school’s faculty disagreed as to whether rendering was best taught by an architect or an artist. 28a Appendia B students, and deliver five guest lectures on non-western architecture. In November, 1973, appellant was advised by the dean that her employment status was to be reviewed by the Tenure Committee. Shortly before the Thanksgiving vaca- tion, she was asked to provide the committee with a sum- mary of her Master’s thesis, and samples of her students’ work, The appellant was under the impression that she had only a couple of days during which to organize her submission, although the dean testified that he told her that the material was not required until December 1, an approx- imately ten-day period. Appellant submitted those student projects which had been left in the studio during the vaca- tion period, believing that they did not represent the best of her students’ work; she also submitted a hand-written summary of her thesis. She did not, however, request a postponement of the committee meeting. The Tenure Committee met on December 1, 1973 to con- sider the appellant’s continued employment during the 1974-75 school year. The dean, six faculty members, and two students attended the meeting, which focused, in rele- vant part, on Ms. Powell’s written statement, and on an evaluation of her s'udents’ projects. The minutes of this meeting indicate that there was some discussion of the appellant’s approach to a “black aesthetic,” and that a white, female faculty member was permitted to delay com- mittee consideration of her case. In a secret ballot taken at the meeting, eight individuals voted in opposition to, and one voted in favor of, continuing appellant on the architecture faculty. Those who voted against the appellant testified before the New York State Division of Human Rights that their A — -_— 29a Appendix B votes were based on an evaluation of the student work, and on the appellant’s background and relative inexperi- ence. They testified further that their attitudes had not been influenced by the appellant’s race or sex. The dean transmitted the results of the committee vote to the appellant, indicating that he believed that the com- mittee thought the appellant unduly “nationalistic.” *® The appellant refused to submit a letter of resignation, appeal- ing the committee’s decision to the university’s Subcom- mittee on Academic Freedom. The subcommittee did not find any evidence of discrimination, but did believe that there had been procedural irregularities in the disposition of the case. It recommended the reinstatement of the ap- pellant, or alternatively, the payment of compensation, but these suggestions were rejected by the dean. Ms. Powell received a letter of termination in May, 1974. The architecture school later hired a white male with a master’s degree in architecture to teach rendering, and « white female with a Master of Fine Arts degree, to teach basic design. It also hired a white female with a Master’s and Doctoral degree in history to teach architectural his- tory.’ III. On this appeal, Ms. Powell asserts that her dismissal was the product of racial and sexual bias, and hence un- lawful. She contends that similarly qualified teachers who 6 This testimony was discounted by the trial court in view of the dean’s favorable attitude toward the appellant. 7 At the time that the architecture school refused to renew Ms. Powell’s contract, three male and one female facuity members resigned from the faculty. Subsequently, two men resigned, and the contracts of one man and one woman were not rezewed. None of these individuals taught basic design or rendering. 30a Appendia B were white or male received preferred treatment, and that the justification for her dismissal offered by the Tenure Committee was merely pretextual. By contrast, the appellees argue that Ms. Powell failed to prove that her dismissal was motivated by unlawful bias. They assert that the Tenure Committee made a valid qualitative judgment which should, in the absence of a clear showing of discrimination, be respected by reviewing courts. Both the appellees and the trial court place great em- phasis on our opinion in Faro v. New York University, 502 F.2d 1229 (2d Cir. 1974), where we wrote: Of all fields, which the federal courts should hes- itate to invade and take over, education and faculty appointments at a University level are probably the least suited for federal court supervision. Dr. Faro would remove any subjective judgments by her faculty colleagues in the decision-making process by having the courts examine “the university’s recruitment, com- pensation, promotion and termination and by analyz- ing the way these procedures are applied to the claim- ant personally” (Applt’s Br. p. 26)... . Such a pro- cedure, in effect, would require a faculty committee charged with recommending or withholding advance- ments or tenure appointments to subject itself to a court inquiry at the behest of unsuccessful and dis- gruntled candidates as to why the unsuccessful was not as well qualified as the successful. [502 F.2d at 1231-32] In recent years, many courts have cited the Faro opinion for the broad proposition that courts should exercise min- imal scrutiny of college and university employment prac- «6 baie Cand. eed te Ba RB 3la Appendix B tices.* Other courts, while not citing Faro, have concurred in its sentiments.° This anti-interventionist policy has rendered colleges and universities virtually immune to charges of employ- ment bias, at least when that bias is not expressed overtly. We fear, however, that the common-sense position we took in Faro, namely that courts must be ever-mindful of rela- tive institutional competences, has been pressed beyond all reasonable limits, and may be employed to undercut the explicit legislative intent of the Civil Rights Act of 1964. In affirming here, we do not rely on any such policy of self-abnegation where colleges are concerned. As originally passed, Title VII of the Civil Rights Act exempted all educational institutions with respect to faculty employment practices. 42 U.S.C. §2000e-1 (1970), as amended. This exemption had not been part of the orig- inal Senate bill, but was proposed in a substitute bill sub- mitted by Senators Dirksen and Mansfield, and adopted first by the Senate and later by the House. There is vir- 8 See, e.g., Huang v. College of the Holy Cross, 436 F. Supp. 639, 653 (D. Mass. 1977); Johnson v. University of Pittsburgh, 435 F. Supp. 1328, 1353-54 (W.D. Pa. 1977); Cussler v. University of Maryland, 430 F. Supp. 602, 605-06 (D. Md. 1977); Peters v. Middlebury College, 409 F. Supp. 857, 868 (D. Vt. 1976); Labat v. Board of Education, 401 F. Supp. 753, 757 (S.D.N.Y. 1975); Moore v. Kibbee, 381 F. Supp. 834, 839 (E.D.N.Y. 1974). 9 See, ¢.g., Megill v. Board of Regents of the State of Florida, 541 F.2d 1073 (5th Cir. 1976); Stebbins v. Weaver, 537 F.2d 939, 943 (7th Cir. 1976), cert. denied, 429 U.S. 1041 (1977); Duke v. North Texas State University, 469 F.2d 829, 838 (5th Cir. 1972), cert. denied, 412 U.S. 932 (1973); EEOC v. Tufts Institution of Learning, 421 F. Supp. 152, 158 (D. Mass. 1975); Keddie v. Pennsylvania State Uni- versity, 412 F. Supp. 1264, 1270 (M.D. Pa. 1976); Green v. Board of Regents of Texas Tech University, 335 F. Supp. 249, 251 (N.D. Texas 1971), aff'd 474 F.2d 594 (5th Cir. 1973); Lewis v. Chicago State College, 299 F. Supp. 1357, 1360 (N.D. Ill. 1969). 32a Appendia B tually no legislative history, however, which indicates the rationale for the exemption of educational institutions. The Equal Employment Opportunity Act of 1972, 86 Stat. 103, see. 3 (1972), amended Title VII to bring edu- cational institutions within the purview of the Act. In the words of the House Report: There is nothing in the legislative background of Title VII, nor does any national policy suggest itself to support the exemption of these educational institution employees—primarily teachers—from Title VII cover- age, Discrimination against minorities and women in the field of education is as pervasive as discrimina- tion in any other area of employment. [H.R. Rep.No. 238, 92d Cong., 2d Sess. (1971), reprinted im [1972] U.S. Code Cong. & Ad. News 2137, 2155] The pervasive nature of discriminatory university em- ployment practices has been well documented in the litera- ture,!? and was characterized in the Congressional debates preceding the passage of the 1972 amendments as “truly appalling,” “gross” and “blatant.” ™ It is clear beyond cavil, then, that the Congress has evi- denced particular concern for the problem of employment 10 H. Astin, The Woman Doctorate in America (1969); L. Lewis, Scaling the Ivory Tower: Merit and its Limits in Academic Careers (1975); A. Rossi, Academic Women on the Move (1973); E. Wasserman, et al., Women in Academia: Evolving Policies Toward Equal Opportunities (1975); Divine, Women in the Academy: Sex Discrimination in Uni- versity Faculty Hiring and Promotion, 5 Journal of Law and Education 429 (1976); Hearings on Federal Higher Education Programs Institu- tional Eligibility Before the Special Subcommittee on Education of the House Committee on Education and Labor, 93d Cong., 2d Sess., pt. 2B (1975). 11 See 118 Cong. Ree. 117 (1972) (remarks of Senator Bayh) and 118 Cong. Rec. 1992 (1972) (remarks of Senator Williams). ‘ j 3 3 3 3 : id ROARED ini Os Kaieoa ase hi © en mm Sh PEPYS iO ES HORT IT BONE Dy 33a Appendia B bias in an academic setting. Indeed it might be said that far from taking an anti-interventionist position with re- spect to the academy, the Congress has instructed us to be particularly sensitive to evidence of academic bias. Accordingly, while we remain mindful of the undesir- ability of judicial attempts to second-guess the professional judgments of faculty peers, we agree with the First Cir- cuit when it “caution[ed] against permitting judicial def- erence to result in judicial abdication of a responsibility entrusted to the courts by Congress. That responsibility is simply to provide a forum for the litigation of com- plaints of . . . discrimination in institutions of higher learning as readily as for other Title V'I suits.” Sweeney v. Board of Trustees of Keene State College, Nos. 77-1243- 44, slip op. at 13-14 (1st Cir., Jan. 4, 1978). See also Egelston v. State University College at Geneseo, 535 F.2d 752 (2d Cir. 1976). It is our task, then, to steer a careful course between excessive intervention in the affairs of the university and the unwarranted tolerance of unlawful behavior. Faro does not, and was never intended to, indicate that academic free- dom embraces the freedom to discriminate. IV. The district court correctly observed that the appro- priate starting point for the evaluation of a personal claim of job discrimination brought under Title VII is Me- Donnell Douglas Corp. v. Green, 411 U.S. 792 (1973). There the Court indicated that: The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be 34a Appendix B done by showing (i) that he belongs to a racial mipor- ity; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. . . . The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the em- ployee’s rejection. [411 U.S. at 802] If the employer is able to sustain this burden, the burden shifts again to the plaintiff, who must “show that [defen- dant’s] stated reason for [plaintiff’s] rejection was in fact pretext.” 411 U.S. at 804. A. The trial court proceeded to indicate that Ms. Powell failed to make out a prima facie case of discrimination for two reasons. First, the court felt that Powell failed to prove that she was “qualified” to teach on the architecture faculty, given the negative faculty evaluations of her work. Second, the court indicated that Powell failed to demon- strate that other individuals possessing similar qualifica- tions were hired after Powell was fired. We believe that the trial court applied an erroneous legal standard in reaching these conclusions, and that Ms. Powell has made out a prima facie showing of discriminatory treatment. With respect to the first of the court’s findings, we be- lieve that the court’s approach unnecessarily collapses the steps suggested by McDonnell Douglas by shifting consid- erations which are more appropriate to the employer’s rebuttal phase to the earlier requirement that the employee “k§ vr eRe Kk 35a Appendix B demonstrate competence to perform the specified work. This is not merely of formal consequence, for it has the practical effect of requiring the employee to prove not merely that he possesses the basic skills necessary for the job, but rather that he is the best-qualified candidate for the job, under the criteria suggested by the employer. As can be seen in the present case, this burden is extremely difficult to meet if the employer’s claim that the employee did not meet some unstated level of performance is suffi- cient to negate the employee’s offer of proof. In this re- spect, we agree with the Seventh Circuit’s view that under McDonnell Douglas [t]he plaintiff need not show perfect performance or even average performance to satisfy this element. He need only show that his performance was of sufficient quality to merit continued employment, thereby rais- ing an inference that some other factor was involved in the decision to discharge him. Satisfactory performance is an ordinary prerequisite of continued employment, just as job qualification is an ordinary prerequisite to hiring. [Citation omitted. ] However, the plaintiff need not, and indeed cannot, disprove as a cause of his discharge a source of dis- satisfaction of which he is unaware. Accordingly, the employer’s acceptance of his work without express reservation is sufficient to show that the plaintiff was performing satisfactorily for the purpose of shifting the burden of proof. [Flowers v. Crouch-Walker Corp., 552 F.2d 1277 at 1283 (7th Cir. 1977)]. 36a Appendix B Ms. Powell was hired by the School of Architecture after a careful review of her qualifications, training, and past performance. In addition, she was reappointed after her first year of teaching. While some members of the faculty may have expressed dissatisfaction with some aspects of her work, this dissatisfaction was never communicated to Ms. Powell, who was, accordingly, in no position to dis- prove these alleged inadequacies. We agree with the Seventh Circuit that proof of com- petence sufficient to make out a prima facie case of dis- crimination was never intended to encompass proof of superiority or flawless performance. If an employer is dissatisfied with the performance of an employee, he can properly raise the issue in rebuttal of the plaintiff’s show- ing. In the context of this case, Ms. Powell has demon- strated that she possesses the basic skills necessary for the performance of her job, and has thereby made out a prima facie showing of competence. With respect to the second factor, the School of Archi- tecture’s hiring of a white female with a M.F.A. degree to teach basic design is sufficient to satisfy the McDonnell Douglas requirement that the position remain open and the employer seek applicants from persons of the complain- ant’s qualifications. The trial court believed that a time gap of over two years between the appellant’s discharge and the other individual’s employment precludes the possi- bility that the other individual “replaced” appellant. And the trial court may well be correct in the more common ease in which hiring is ongoing and employees largely fungible. In the context of university employment, however, a de- partment or school may hire only a small number of indi- viduals each year, and the fact that a position may go un- 37a Appendix B filled for a time does not indicate that the position has been terminated. It only indicates that the school has not yet located the candidate of its choice. Thus Ms. Powell has, as a matter of law, been able to demonstrate both her competence and the architecture school’s ongoing hiring efforts. This, coupled with undis- puted proof of minority status and the termination of her employment contract, is sufficient, under McDonnell Douglas, to make out a prima facie case of discriminatory treatment. B. The more difficult issue before us is whether, on the pres- ent state of the record, the School of Architecture can be said to have successfully rebutted Ms. Powell’s showing by articulating a “legitimate, nondiscriminatory reason for the employee’s rejection.” In this regard the trial court found that: [A] contract for the academic year 1974-75 was not offered to [the appellant] for one reason only. The Tenure Committee honestly reached the conclusion that plaintiff’s performance fell short of teaching re- quirements, after affording her a fair opportunity to demonstrate her teaching ability. This determination was devoid of any racist or sexist base. The plaintiff has not demonstrated the assigned reason to be a pre- text for prohibited discriminatory conduct. All of the eight members of the Tenure Committee who voted against plaintiff testified that they voted to terminate plaintiff essentially because of the poor work product of her rendering students, and her inadequate archi- tectural background. These are matters of obvious 38a Appendiz B concern to the architecture faculty and, therefore, are unquestionably legitimate reasons for the vote. [App. at 17-18.] Rule 52(a) of the Federal Rules of Civil Procedure re- quires that findings of fact made by a trial court shall not be set aside unless clearly erroneous. Where, as here, a ease is heard on the basis of a record developed before another judge, a trial judge is necessarily unable to make first-hand assessments of credibility, and the broad defer- ence normally due a trier of fact under the federal rules may be somewhat attenuated. See 5A Moore’s Federal Practice 52.04 and the cases cited therein. Nevertheless, after a careful review of the record, we cannot say that the trial court’s finding in the instant case is clearly erroneous, The court considered testimony by all eight members of the Tenure Committee, and was un- able to discern either overt or covert discrimination on the part of those officials. And our own independent review of the record confirms these findings, which are supported by substantial evidence, and which do not leave us “with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 394-95 (1948). It would, of course, have been preferable if the School of Architecture had presented the court with a more fully developed description of the appellant’s duties, and the criteria used in assessing her performance. In that way the legitimacy and rationality of the school’s hiring prac- tices would have been more immediately evident. But the law does not require, in the first instance, that employ- ment be rational, wise, or well-considered—only that it be nondiscriminatory. And the record here simply does not 39a Appendix B support the appellant’s contention that her termination was the result, in whole or in part, of racial or sexual animus. Accordingly, we affirm the judgment of the district court. Moore, Circuit Judge (Concurring): In the dicta comprising Part ITI, the majority opinion purports to strike a blow for justice by encouraging the courts to intervene into the affairs of our colleges and universities. Any reluctance of the federal courts to inter- fere with the decision-making process of universities does not come from an interest in promoting discrimination. Rather, such reluctance reflects the inability of the courts to perform “a discriminating analysis of the qualifications of each candidate for hiring or advancement, taking into consideration his or her educational experience, the spec- ifications of the particular position open and, of great importance, the personality of the candidate.” Faro v. New York University, 502 F.2d 1229, 1232 (2d Cir. 1974). The courts in cases cited by the majority, in my opinion, have not abdicated their responsibility to uphold the Equal Employment Opportunity Act of 1972. Instead, they have indicated the difficulty faced by courts in attempting to evaluate the ability of a faculty member. “A professor’s value depends upon his creativity, his rapport with students and colleagues, his teaching ability, and numerous other intangible qualities which cannot be measured by objective standards.” Lewts v. Chicago State College, 299 F. Supp. 1357 (N.D. Ml. 1969). 40a Appendiz B This difficulty has done no more than create a justified reluctance among the courts to override the “rational and well-considered judgment of those possessing expertise in the field”. Green v. Board of Regents of Texas Tech Uni- versity, 335 F. Supp. 249, 250 (N.D. Tex. 1971), aff’d, 474 F.2d 594 (5th Cir. 1973). See Huang v. College of the Holy Cross, 436 F. Supp. 639, 653 (D. Mass. 1977); Peters v. Middlebury College, 409 F.Supp. 857, 868 (D. Vt. 1976). If we took a “common sense position” in Faro (and there is no good reason here presented to abandon this ap- proach), we appear to have the support of many other courts. As to the merits of this case, I agree that Syracuse Uni- versity successfully rebutted the contention that Powell’s termination was the result of racial or sex animus. In addition, I believe that Powell did not even establish a prima facie case of discrimination. The Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) articulated a standard that the complainant must meet in order to establish a prima facie case. The complainant must show: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the em- ployer continued to seek applicants from persons of complainant’s qualifications.’ 13. Tie facts necessarily will vary in Title VII cases, and the spec- ification shove of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations.” Id. at 802. 4la Appendix B In McDonnell Douglas the company did not “dispute [claimant’s] qualifications and acknowledge[d] that his past work performance in [McDonnells Douglas’] employ was satisfactory.” Jd. The particular qualifications of a job must of necessity vary with the occupation and the type of employer. Qualifications for a job to work as a mechanic for a manufacturer (as in McDonnell Douglas) are more easily measured and quantified than qualifications to hold a faeulty position at a university. Here Powell did not prove that she was qualified for the job for which Syracuse University was seeking applicants and that Syra- cuse University continued to seek applicants with Powell’s qualifications. While generally an architecture degree is a prerequisite for teaching in the School of Architecture at Syracuse University, exceptions are made for certain courses such as history of architecture and basic design. Powell, with a degree in fine arts, had no teaching experience at the time she was hired as a part-time lecturer in 1972. Even assuming that she met the minimum educational require- ments to be employed initially in a teaching positior. the mere attainment of a degree does not qualify an individual to teach in a university. Powell never demonstrated that she was qualified to continue her post at Syracuse Uni- versity. To the contrary the members of the Tenure and Promotion Committee based their conclusion not to rehire Powell on the grounds that her academic background was inadequate and her students’ work was inadequate. Also, there was some question whether her personality was ap- propriate for teaching and counseling students. These are factors which may properly be taken into account in de- termining whether a faculty member possesses the “qual- ifications” for continued employment. 42a Appendix B In addition, Powell was not replaced by someone of com- parable qualifications. After Powell was terminated in May 1974, Christopher Gray was hired in the fall of 1974 to teach the rendering course. He possessed different qualifications, having degrees in architecture and prior teaching experience. Subsequently, two white women with- out architectural degrees were hired. One, with a Ph.D. degree in art history, was hired to teach history of archi- tecture, a course which Powell never taught. The other, with a degree in fine arts. was hired in the fall of 1975 to teach basic design. This was two years after Powell had ceased teaching that course, and she could not be con- sidered to have “replaced” Powell. Thus, I would conclude that Powell failed even to make a prima facie case of discrimination. This does not, as the majority opinion suggests, force the plaintiff to prove she is the best qualified for the job. Rather, it only forces the plaintiff to prove that she does meet at least the minimal level of competence required of a university faculty mem- ber, which she did not prove. 43a Appendix C Statutory Provision Involved § 2000e-2. Unlawful employment practices—Employer practices (a) It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any indi- vidual, or otherwise to discriminate against any indi- vidual with respect to his compensation, terms, condi- tions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employ- ment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. 44a Appendix D Plaintiff’s Exhibit #14 in Record Sunday December 1, 1973 Appointments, Promotion, and Tenure Committee Minutes Present: Van Keuren, San Jose, Fisher, Gabriel, Skoler, Livengood, Schueller, Rippeteau, Lee 1. Announcements made by John Fisher a. Charles Croom’s appointment extension will not be considered by Central Administration (Fisher to in- form Croom) b. Schedule lists two (2) faculty members teaching courses not yet approved by Committee: 1. Searbrough to teach in Spring 2. 30-40 want 211 (structures) to be taught in Spring (taught last year by C. Croom) could be taught by Prof. Eng. Soda who wants to teach. He is a structural engineer. 3. Virgus Streets to teach in Community Design Center when Administration approves. Q. Are there funds for Scarbrough? Might be special funds, use of Dozier funds Point: Lesnikowski Reaward of contract Curriculum Vitae read by Van Keuren A/C system in office made subject of activity—Re- search in Housing, Urban Planning 45a Appendix D Q. Any indication that she would teach another course? (Father died) wants to teach full-time. Comments can be forthcoming after Tuesday Jury (L. Skoler) Student’s feedback good (last year) Reiterated Jury experience from 1972; Fact that in- dustrialization was dropped as well as the notion of social architecture. Shouldn’t we take into consideration more facts (be- ing here, already teaching, etc?) rather than making a gap in curriculum. Remark to contrary that Length of time in project (full semester) is problem Rippeteau would disqualify self Question that sufficient information does not exist in case of Lesnikowski so that vote would be delayed until more information made available. 2. Oglesby Continuance a. Does it overlap in any other course? b. Questions stemming from fact that Service Course to University rather than in-house? e. Large percentage of teaching is done in-house. d. School now making +300,00 for S.U. e. Would budget be decreased if Oglesby taught in Arts & Sciences? (yes) 46a Appendix D f. Generally speaking, if service courses are taught, shouldn’t they be taught in the educational context that they are formed? g. Discussion of service courses Relation of course to Virgus Streets (Redundant—psych city) Workshop, Community Service—Powell—Streets Powell description of Master’s Thesis minority interests minority goals in power community separation Third World Study Comments on Thesis Counsel to Black students Drawing for Freshmen (abrasive) Quickness in assigning values, question ability to counsel. Wants to see architectural experience and ed- ucation in translating values to community values Experience, personality required. Linkage in community Experience in actual service in Community? Ability to correlate to other Blacks? What community does school serve? What is level of minority substantiation? Icon model? What model is she talking about and why? Comments are questionable? Are students in a real posi- tion to answer question? Bias 47a Appendix D Advising in Black She will refer them to someone else. Advising needs a broad role What type of artist is she? Black Architecture, does it exist? Dozier spoke of Black Architects? 3. What do Black students want? His won experience in teaching and speaking does not seem to hold true—want a complete Architecture education Black should go to black schools if they want to become Black Architects. If one goes to an integrated school then he must submit to an area of complete integration Agree with Lee in statement about school within School. Points of view on “minority” definitions meaning black only (see also students) “genetic architecture” Disenss on credentials basis to see if permanent employ- ment. Minority scholarships are also Hispanic-American. Spe- cial programs for minority students are necessary to main- tain minority scholarships—this means counciling tutor- ing, courses, ete——which allude to maintaining Black pro- grams. Judgements : A. Counseling minorities—own statement seems to only include Blacks. b. Seems to have an idea of knowledge/genetics 48a Appendix D Programs in Schools (special)—how far does it go Special standards? Special grading standards? There might be a distinet conceptual difference in “track- ing” a minority student rather than an architectural dis- tinction. Voting should be done on credentials in Architecture/Art especially when students are exposed to her after experi- ence gained. Does position required administrative role? Is Virgus Streets better Teaching, Administrative, ete. We should talk about position. Is there a need? Is there sufficient money? Appears she is demanding a full-time position. Positions—competence Affirmation Action Assessment of Affirmative Action by V. Chancellor Reading 1 page of recruiting problems and activity in minority recruitment Raises points of characteristics of Art superseded by characteristics of artist Watts Negative comments. Business techniques—thinks Watts knows material, particularly in economic-business terms; Can find ways in whick Architecture as a profession may be successful—(as inferential information) in reversing position. . . Student interest is low based on incompetence 49a Appendix D Agreed that “both Faculty and Student are Incompetent”, but must realize significance of statement Does Course = Doug Watts? If Watts leaves, does course leave? Does Watts want to communicate efficient business matters and methods? Does Watts want to make good architects or good business men? Thinks student input is poor. Watts is good in lecture/ seminar Voting Watts (to continue) 1 no 8 yes Powell (to continue) 1 yes 8 no Oglesby (redundancy in Streets) Motion to postpone voting made by J.L. seconded by L.S. sustained Lesnikowski abstain. 5 no 2 result of vote demands postponement based on inadequate yes 2 qualitative data Steinfeld Wants to teach Research course and “Environment and Aging”—and not Desicn 50a Appendix D Discussion on course contents and needs to make a specialty of it from a design standpoint What is Steinfeld going to teach next year? 14, Time based on part-time (Gerentology-Architecture Design) Behavioral Science Research Component Q. If we are to take Steinfeld over Full-time (and Ger- entology dropped will we have him teach design for 6 c.h. Gerentology will be part-time appointment. What will role in Research be next semester? “Correspondence Schoo] activity in Architecture” “Barrier-Free Archi- tecture” Research with Graduate Students only Abruptness 5. Agree Vote: Maintenance at % position precluding activity in Design Studio (Motion to effect that position con- tinues in Gerentology & Research only) 6 yes 2 no 1 abstain VonScheven 8 yes 1 no dla Appendix D Allor reappointment at same 12 time, continuance of same- course at undergraduate level brings up point of who should teach peripheral service courses: behavioral ete. and labelling it by inference as dynamic in the discipline as dominant and not only applicable as a way of thinking out reflecting, rather than as an end There is so much complexity in the world, there should be a team approach. The problems of the world should be “t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1835%3A1. Public record. Not legal advice.