Scott v. University of Delaware

OPINION

Dr. Nolvert P. Scott, Jr. (“Scott”) brought this class action against the University of Delaware (“the University”), its Board of Trustees, and other University officials and faculty members, alleging racial discrimination in the hiring, discharge, recruitment, promotion, supervision, wages, terms, conditions and privileges of employment of its faculty. Scott seeks a declaratory judgment, reinstatement and damages on his own behalf, and injunctive relief on behalf of the class which he represents. In an Opinion dated November 20, 1974, 1 this Court held that the complaint stated a claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., as well as under 42 U.S.C. §§ 1981 and 1983. In an Opinion dated September 11, 1975, 2 this Court certified the action as a class action on behalf of all blacks who have been, or in the future will be, discriminated against on the basis of race with respect to the above enumerated employment practices. On September 14, 1976, this Court denied the defendants’ motion to decertify the class. After a four week trial, the case is now ready for final disposition. This Opinion constitutes the Court’s findings of fact and conclusions of law.

I. BACKGROUND FACTS.

A. Historic Background.

While Delaware College, the predecessor of the University, was founded as a private institution, there has been significant state involvement with it since 1867 when it was designated by the General Assembly as the State of Delaware’s land grant college. The details of the State’s subsequent and increased involvement in the affairs of the University are set forth in a stipulation admitted into evidence at trial. 3 It will suffice for present purposes to find that the State’s involvement is, and for decades has been, sufficient to make the University’s actions actions of the State for purposes of the Fourteenth Amendment. Parker v. University of Delaware, 31 Del.Ch. 381, 75 A.2d 225 (1950).

Prior to 1948, there was no black faculty at the University and black students were not eligible for admission. Following the pattern in most southern states, the University of Delaware served the white population of the State while Delaware State College served the black population. In 1948, the Board of Trustees of the University approved a resolution permitting the enrollment of black students who were residents of Delaware, but only if they were enrolled in programs of study which were not available in other state-supported institutions in Delaware. (PX-8, C-117). In 1950, ten black students who had been denied admission to the University brought a class action *1104 in the Delaware Court of Chancery. (PX-8; C-117,118). The court there upheld the plaintiffs’ claim of a Fourteenth Amendment violation and issued an injunction prohibiting the University from denying admission solely on the basis of race. Parker v. University of Delaware, 31 Del.Ch. 381, 75 A.2d 225 (1950).

Even after 1950, however, few black students attended the University. Between 1951 and 1969, only 37 black students received Bachelor’s Degrees, while 52 received graduate degrees. (PX-8). Until 1961, black students were not allowed to room with white students. (PX-3).

It was not until the last half of the 60’s that affirmative efforts were made to encourage black students to come to the University and to attract black faculty. Although these efforts have continued to the present, they have not succeeded in attracting sufficient black students to make the University’s student body an accurate reflection of its community. Nor have they resulted in the hiring of sufficient black faculty members to make the University’s faculty reflective of the national academic community. A summary of these efforts is important, however, to put the questions now before the Court in perspective.

Since 1966, the University has operated an “Upward Bound” program designed to identify black students with potential for successful college performance, to motivate them to seek college admission, to recruit them for the University, and to provide them with supportive educational services. (PX-8). In 1970, this was supplemented by the inauguration of a “College Try” program to provide supportive educational services to students of low income families during their freshman and sophomore years. (PX-8). In 1968 the admissions office developed a program to attract black students other than through “Upward Bound” and began to apply techniques other than the traditional admissions criteria in evaluating the college potential of black students. 4

Dr. Edward A. Trabant became President of the University in September of 1968. On October 1, 1968, he wrote a letter to the presidents of approximately 250 colleges and universities, including those which traditionally have had large black enrollments, expressing the University’s interest in attracting black faculty and urging the recipients of the letters to refer blacks beginning careers in higher learning or those with prior faculty or administrative experience to him. (DX-48). Letters of similar import were dispatched by the Provost and the Vice President of Academic Affairs. During the same month, President Trabant established an “Advisory Committee on Policies, Programs and Services Affecting Blacks and Other Minority Group Students”. The purpose of this group was to advise the University as to how it might most effectively attract and serve black and other minority students. The product of this group’s effort was the Scarpitti Report (PX-2) named after its chairman, Professor Frank R. Scarpitti. This report was presented to the President on March 7, 1969.

The 1968 letters initially produced a list of 53 potential candidates. The follow-up efforts found that many of those were not interested or were, seeking positions which the University did not have open. Twenty-six were selected as candidates, and of these, 16 were interviewed and 11 were offered jobs. Seven declined the offers and 4 accepted. 5 This follow-up was reported to all members of the faculty and each was asked to assist in recruiting potential black faculty members. (DX-49).

The Scarpitti Report (PX-2) made numerous and significant recommendations in *1105 such areas as black representation on the Board of Trustees, black student and faculty recruitment, creation of a Black Studies Department, social and cultural programs for black students, and additional financial aid to blacks, etc. There was prompt (DX-53) and sustained (DX-54) follow-up to implement most of these suggestions, (e. g. Trabant, N-28-31).

Pursuant to Executive Order No. 11246, the University became obligated to comply with certain federal regulations relating to minority hiring. (41 C.F.R. § 60.2). These require that if an employer doing contract work for the federal government has a work force in which minorities are underutilized, an affirmative action program must be undertaken. In 1972 the University implemented an Affirmative Action Program which included the area of full time faculty hiring and which will be described in some detail hereafter. (PX-44). This program was overseen by an Affirmative Action Office, headed by a “Coordinator”. The first coordinator was Jeannette Sam. Ms. Sam’s services were supplemented in 1974 by retention of the services of an Assistant Coordinator, Mr. James Turner. Mr. Turner, a black, has since succeeded Ms. Sam as Coordinator.

While these efforts have not been as successful as originally hoped, they have involved a substantial commitment of resources and do demonstrate a concern on the part of the administration about the underrepresentation of blacks in the student body and on the faculty. 6

The number of black students in the freshman class rose steadily from 16 (0.9%) in 1967 to 221 (7.8%) in 1972. Despite the increased number of black freshman enrolled, however, the overall size of the student body has grown at a substantial rate, and it appears that during the 1976-77 school year the undergraduate student body was only 3.4% black. 7 During the same period the graduate student body had a 1.8% black population. (PX-8, PX-55).

B. The Sociology Department And Dr. Noivert P. Scott, Jr.

In 1967 the Sociology Department at the University was made up of eight full time faculty members. It awarded a Bachelor of Arts and a Master’s degree and there was little emphasis on research, scholarship or publication. In the fall of 1967, implementation of a basic policy decision of the President and Trustees was begun. A Doctor of Philosophy Program was to be developed and a new emphasis was to be placed on scholarship and the advancement of knowledge. Four new faculty members, including Dr. Scarpitti, arrived on campus to aid in effectuating this change. (Scarpitti, F-7-9).

In 1969, Dr. Scarpitti became Department Chairman and the Ph.D. program was inaugurated. The teaching load for all faculty members was dropped to six hours and it was understood that at least half the working time of each member would be spent doing research and writing. Between 1969 and 1977 the Department grew from eight full time positions to twenty-one full time positions and became more specialized. 8 In recruiting for these new positions, the Department sought people who had, in the words of its Chairman, “the capabilities of making significant contribution to scholarship that would bring the recognition to the University that we all wanted, the recognition as a scholarly department.” (Scarpitti, F-9).

*1106 When new faculty members were hired, they were provided with a copy of the “Personnel Policy” of the Sociology Department, which was originally promulgated in 1969. (DX-8; Scarpitti, F-21). This document purported to state the criteria to be applied in making departmental recommendations for renewal of contracts, promotions in rank and conferral of tenure, as well as the procedure to be followed in reaching such recommendations. The “criteria” section states, in part, as follows:

The criteria fall into three general categories: (1) teaching efforts and effectiveness, (2) scholarly activity, and (3) service to the department, the University, the community. Criteria in all three categories will be considered in formulating a recommendation.

Dr. Nolvert P. Scott, Jr. was recruited by the University during the 1970-71 school year. He visited the campus and was hired in preference to two other candidates pursuant to a vote of the members of the Sociology Department. At the time of the hiring he had had eight years of teaching experience and was teaching at a Canadian university. (Scott, B-44-45). He was an “ABD” (“all but dissertation”), meaning that he had completed all of the requirements for a Ph.D. except the dissertation requirement. Dr. Scott asked for and received a commitment to pay him at a rate of $15,000 during the first year of his three year contract, if he had received his Ph.D. degree by the time he reached the campus in September of 1971. This was $3,000 above the rate which the Sociology Department had been paying for Ph.D.’s. (Scarpitti, F-40).

During his discussions with the sociology faculty, Dr. Scott was informed that the practice was to evaluate for possible contract renewal at the end of a candidate’s second year so that he would have a full year’s notice in the event of non-renewal.

Dr. Scott was evaluated at the end of his second year and a decision was made not to renew his contract. The decision was made by a vote of 9 to 1 of the department faculty, with two abstentions. (Scarpitti, F-85). Dr. Scott was advised on May 8, 1973 that his contract would not be renewed when it expired in August of 1974. (PX-9).

C. The Challenged Employment Practices.

Dr. Scott presses both disparate treatment and disparate impact claims. First, he asserts that the decision not to renew his contract was racially tainted. In support of this assertion, he cites evidence of other episodes in his life at the University which he perceives as being indicative of racial bias toward him and evidence tending to show that other non-black professors, whom he maintains were similarly situated, were retained for an additional contract term.

In addition, Dr. Scott has maintained throughout this litigation that numerous employment practices at the University have a disparate impact upon blacks and, accordingly, have operated to the disadvantage of himself and other members of the class he represents. During trial, these disparate impact claims were narrowed, and his brief focuses, first, upon the recruitment and hiring practices of the University and, second, upon its practices with respect to contract renewal, promotion and conferral of tenure.

1. The criteria.

The University is composed of nine colleges, which contain forty-one separate departments. There are four different ranks among the full time faculty: Professor, Associate Professor, Assistant Professor, and Instructor (or Lecturer). Since at least 1969, the Handbook for Faculty has set out general principles established for university-wide use in appointments to these positions. (PX-88). A “Masters degree (or its equivalent)” is stated as being required for an Instructor’s position and a “Ph.D. Degree (or its equivalent)” is stated as being required for the other three positions. 9 In *1107 each instance, varying levels of attainment in teaching and scholarship are set forth as requirements. Finally, the Handbook specifies that Instructor appointments shall be for a term of one year, Assistant Professor appointments for a term of one to three years (renewable for similar periods), Associate Professor appointments for a term of three years or “without term” where the candidate has been at the University for three years or more, and Professor appointments without term.

Within the boundaries of these general principles, the University follows a policy of decentralized decision-making. It requires that each individual department adopt more specific criteria, establish its own procedur- , al rules, and make its own reeommenda- ! tions on appointments. (PX-88). Some ¡ control of this decentralized process is maintained, however. In the fall of 1972, ; the various departments were required to submit written statements regarding their I personnel policies. These were subject to | the approval of the University Tenure and I Promotion Committee and the Provost. They were to state the criteria on which recommendations would be based, the weight various criteria would be given, and the kinds of evidence by which attainment of the stated criteria would be judged. They were also to state the procedure to be j followed and provide for a statement of the j reasons for a decision to go to the candi- ¡ date.

The departmental statements filed in re- ; sponse to this requirement are contained in the record as a part of PX-72. Many, in , accordance with the directive, expressly purport to deal only with promotion, renewal and tenure decisions. Others expressly cover recruitment and initial hires as well., As far as the criteria for appointment are concerned, however, the record indicates that the criteria stated as governing appointments to Assistant Professor, Associate Professor and Professor positions by promotion from within are also applied in filling those same positions from without by hire. Thus, in the criteria area, even those departmental statements which do not expressly cover initial hire are nevertheless helpful in determining the hiring criteria.

While the policies and procedures vary to a degree from department to department, certain generalizations can be made based on a review of PX-72 and the rest of the record. First the stated criteria uniformly relate not only to teaching and scholarship, but also to what is referred to as “service”, meaning service to the department, the University or the larger community. Thus, while variously stated in more specific criteria, the three general criteria considered by all departments in making promotion, renewal, and tenure decisions are teaching effectiveness, scholarly achievement, and service. As one would expect, accomplishments and/or potential in these areas is what is looked for in making decisions on initial appointments as well.

While the relevant criteria are thus relaItively subjective, the departmental statements add specificity to the decision-makling process in several ways. In addition to jmore specific subcriteria in many instances, statements refer to the kinds of evidence which the decision-makers will consider as reflecting teaching effectiveness 10 and the other criteria. 11 In addition, almost all departmental statements give some indication of the relative importance of the criteria. Some departments assign percentages; others have point systems. Some are more general in approach, stating for example, that all three are given equal weight or that teaching and scholarship are weighted equally, with service being a secondary consideration. Still others allow candidates to select areas of emphasis and to be evaluated accordingly.

The one notable exception to the weighting statements is the policy statement of *1108 the Sociology Department as of the date of Dr. Scott’s non-renewal. As plaintiff stresses, no indication of the relative importance of the three criteria was provided in that statement and, in practice each member of the department was permitted to utilize his own personal view of the importance to the department of accomplishment in each area. 12 (Scarpitti, F-128). This makes objective analysis and review of a particular decision difficult and thus provides greater opportunity for the undisclosed operation of racial bias or stereotypes. This effect is ameliorated to a degree, however, by the requirements that each departmental member articulate to his colleagues the reasons for his vote on a candidate and that a statement of reasons be supplied to the candidate.

The departmental statements as well as the testimony -of the department chairpersons provide enlightenment on the practical application of the “Master’s Degree (or its equivalent)” and “Ph.D. (or its equivalent)” requirements. The concept of “equivalent” encompasses at least three distinct categories of candidates: the ABD who is on the verge of receiving a doctorate, the recipient of whatever the terminal degree is in the field where a Ph.D. is not offered, and the person who has significant prior experience in the areas of teaching, scholarship, or service which is deemed to make him or her as valuable to the department as one with the requisite degree of formal academic training. The chairpersons’ testimony also indicated that, despite the declarations of the Handbook, a number of Departments had positions which they felt did not require a Ph.D. holder, or, in some instances even a Master’s degree holder, and made their appointments accordingly.

Overall, in the 1976-7 school year, the University employed 13 Professors, 24 Associate Professors and 65 Assistant Professors with Master’s degrees, and one Professor, one Associate Professor and three Assistant Professors with Bachelor degrees. (PX-71). While the testimony indicates that some of these 107 non-Ph.D. professors, who represented 15.7% of those serving in positions requiring a “Ph.D. or its equivalent”, were hired at a time when the Ph.D. requirement was less emphasized than at present, 13 many are recent hires who either were deemed to have experience equivalent to a Ph.D. 14 or who were placed in positions which the department felt did not require a Ph.D. 15

2. The procedure.

When there is a vacancy to be filled from the outside, the department forms a Search Committee and prepares a position announcement or job description. The position announcement is then submitted to the Affirmative Action Office for a decision on whether it contains qualifications which are unnecessary or have a discriminatory effect. If the document is approved, the depart *1109 ment is given permission to advertise and is advised of the remaining requirements of the Affirmative Action Program. All advertisements must contain a statement, and all recruiting sources must be advised, that the University is an equal opportunity, affirmative action employer. (PX-45A). A list of contacts likely to reach black applicants, e. g. predominantly black schools, minority publications, and black caucuses of various professional associations, is provided to the department. The department is further advised to retain all of its records with respect to its search. (Turner, G-132-134).

The Search Committee reviews the written resumes submitted in response to its solicitations. These resumes do not ordinarily reveal the race of a candidate. The field is narrowed based on the training and experience reflected in the resumes. Thereafter candidates are invited to the campus to confer and, in some instances, to make a presentation. The Committee, or in some instances the entire department, then makes a recommendation for the position. No offer, written or oral, can be made without a submission of all recruitment data, including all resumes, to the Affirmative Action Coordinator along with an “Affirmative Action/Organizational Sign-Off Form” which summarizes the credentials of the candidate recommended, the number of applicants known to have been a member of a minority group or female, the recruiting efforts made, and the reasons for preferring the recommended candidate over any other applicant known to be a member of a minority group or female. 16 The Affirmative Action Coordinator, after reviewing the procedure used and the candidates considered can approve the recommended choice or veto it. If it is approved, the Sign-Off Form is signed by the Coordinator and filed in his or her office. (Turner, G-136-137). Ultimately, approval of new appointments must come from the Provost and the President.

Since 1974, the Affirmative Action Office has required departments to send out an “Applicant Supplemental Form” (DX-59) to each applicant for an academic position. The form, which is returnable to the Affirmative Action Office, guarantees anonymity and asks the applicant to indicate his or her racial/ethnic background, age and sex. The returns are utilized by that office in monitoring the hiring process.

The testimony of the Coordinator and thé department chairpersons convinces me that the provisions of the Affirmative Action Program are, in fact, followed in the recruiting and hiring process and, in particular, that the recommended recruitment sources are contacted on a regular basis. 17

While procedures for renewal, promotion' and conferral of tenure vary from department to department, most follow a similar pattern. Each year the department chairperson evaluates each faculty member’s teaching, scholarship and service and fills out a Faculty Appraisal Form. Review for purposes of recommendation for contract renewal, promotion or tenure can be requested by anyone in the department including the potential candidate himself. In some instances there are established times for review as, for example, at the end of the second year of a three year term. The candidate prepares a dossier and a review is conducted by the members of the department or some segment thereof. After a departmental recommendation there are subsequent reviews at the college and university levels. Final decisions are made by the President subject to confirmation by the Board of Trustees. (Kraft, I-61-64). 18

*1110 D. The Market For Black Academics.

The University recruits nationally. All of the witnesses agreed that the national market for black academics is presently, and since Executive Order 11246 and the birth of affirmative action plans has been, a seller’s market. (Blackwell, C-107; Lee, D-66). There are somewhere in the neighborhood of 2,000 colleges and universities in the country. (Blackwell, C-110; Lee, D-64). While the number of blacks with graduate degrees is the subject of some debate, one respected source reports that, exclusive of doctorates in Education, only 236 blacks earned their Ph.D.’s in 1973, 325 in 1974, and 387 in 1975. This averages out to about one-half of one black Ph.D., exclusive of education, for each college or university in the country during the three year period from 1973-1975. (DX-46). In some disciplines the total number of blacks holding a Ph.D. degree, including both new and existing degrees, is quite small. It was estimated, for example, that there are only somewhere between 250 and 300 black Ph.D. Sociologists in the country. (Blackwell, C-106, Lee, D-63).

The percentage of those with graduate degrees who are black remained relatively constant between 1965 and 1975. Recently, however, the situation has begun to improve. In 1977 blacks comprised 6.4% of all graduate school students. That is an increase from 5.2% in the previous year. (Blackwell, C-42).

The excess of demand over supply results in black academics receiving competing offers from a number of institutions and, in many instances, higher salaries to blacks than to whites with similar experience and credentials. (Brown, G-41; Warter, L -83; Siskin, 0-48). Professor Scott, for example, had two dozen institutions interested in him when he was hired by the University of Delaware (Scott, B-146) and, as earlier noted, the University had to offer him $3,000 over its prevailing rate for Ph.D.’s in order to get him. (Scarpitti, F-40). All of the experts confirmed that this was a common situation.

Thus, black academics typically have a number of alternatives open to them and a college or university cannot expect to hire black faculty members simply by being open to that possibility. An institution must be active and competitive in order to attract black faculty members. One of plaintiff’s witnesses put it this way:

. It seems to me what happens in most cases is, the average black Ph.D. or person who is specializing in a given field, has a choice of many opportunities, and he normally does not have to seek ,out the University of Delaware or any other college for a job opportunity. But tendencies are, he may be more apt to be recruited than he is to go out and seek a job. • . . . I think it is important to recognize the realities, because there are so few blacks. Those who are available and who are qualified tend to have people recruiting them, and I don’t know of anybody specifically who has applied for a job at the University of Delaware and was denied a job opportunity because of their race. But I do think that most universities that are enlightened, have a policy in trying to improve their educational system, and provide an opportunity for their students to be exposed to all races and creeds and truly represent a universal kind of educational opportunity.

(Williams, A-127-28).

While there are varying estimates in evidence, I accept the figures of plaintiff’s expert, Dr. Siskin, as being reasonable estimates of the available labor pool. Dr. Sis-kin estimated that of the national pool of Ph.D.’s in disciplines which are taught at the University, weighted to reflect the actual distribution of Ph.D.’s at the University among those disciplines, would have a black participation of approximately 2%. A similar pool of people holding Master’s degrees in the relevant disciplines would have about a 4% black participation. Utilizing the 1976-77 Ph.D.-Masters mix at the University, 73%-27%, Dr. Siskin estimated that the available labor pool was 2.55% black.

*1111 Between September of 1974 and February 1 of 1977, 5,171 responses on the Applicant Supplemental Form were received by the Affirmative Action Office. This represented a 75% response rate. 19 The black portion of responding job applicants constituted 1.56% in 1974-5, 1.83% in 1975-6, and 2.38% for a portion of the 1976-7 school year. (DX-60-A, 60-B, 60-C). The percentage of responses by black applicants over the entire period was 1.78%.

E. The Black Perception Of The University.

While some evidence suggests that the situation has been improving in recent years, it seems clear that the University has not been viewed by the black academic community as offering an hospitable environment. Isolating the reasons for the reputation of an institution is more difficult than recognizing the existence of that reputation and its general character, but the record in this case does suggest some of the sources of the University’s negative image in the black academic community.

Part of the problem relates to location. The University is situated in a small community and, as one of plaintiff’s witnesses put it, there is no “indigenous black population near the campus.” 20 Part of the problem relates to what is perceived to be the philosophical orientation of the University and its administration. In short, the University is viewed as an “ultra-conservative” institution. 21

It also appears that the University is perceived by many to be generally “indifferent” or “insensitive” to blacks and their problems. This perception seems to stem from three things: (1) the segregated history of the University and the fact that most steps toward integration were compelled by external forces, (2) an unfortunate and well publicized episode in the spring of 1970 involving the failure to secure the services of a black anthropologist, Jennetta Cole, and (3) the inability of the University to hire more black faculty members than it has. 22 The impact of the University’s history in race relations is understandable without further explanation. The second and third factors warrant further comment, however.

Information and impressions circulate efficiently in the relatively small community of black academics and the experience of individual black academics at a particular institution tends to affect its image throughout that community. Such was the case with Jennetta Cole. Professor Cole was recruited by the University for the position of Director of the Department of Black Studies in 1970. During her visit to the campus she was enthusiastically received by both students and faculty. She was offered an Associate Professorship and asked to serve as Director of the Department. Professor Cole was married to a white economist, however, and would not come to the University unless he were offered an Associate Professorship by the Economics Department. The Economics Department was willing to create an Assistant Professor position for him, but took the position that he had insufficient research and writing experience to merit Associate Professor status. The University Provost undertook to persuade the Economics faculty to change its position but Dr. Cole was forced to act on an outstanding offer from the University of Massachusetts while this debate was going on and she accepted the position there. The failure to move quickly in making an offer to Dr. Cole was perceived on the campus as “foot dragging” and as an indication that the administration did not really want to have Dr. Cole on the faculty. As a result, 42 black students staged a demonstration on Honors Day. (Scarpitti, F-27-32).

*1112 The inability of the University to hire more blacks than it has is significant for two reasons. First, it suggests to some blacks the idea that the University is “not really trying” to attract black faculty and, therefore, is not concerned about overcoming the effects of past discrimination. In addition, however, the most important effect of the University’s performance in black hiring is that black academics, regardless of any image they may have of the attitude of the administration and faculty, are reluctant to join a community in which there are very few other blacks. Plaintiff’s experts, as well as other witnesses, testified that an institution must achieve a minimum “critical mass” of blacks in its faculty community before it can expect to become an attractive environment for the majority of potential black faculty members. (Blackwell, C-30). The absence of such a “critical mass” fosters concern on the part of black academics about possible isolation and tends to encourage their pursuit of other available opportunities. Thus, institutions attempting to move from an all white or a virtually all white faculty to one representative of the national academic community face a difficult task until they reach the “critical mass” point and may find it necessary to offer extraordinary monetary or other inducements in order to reach that goal.

F. The University’s Experience With The Hiring Of Full Time Faculty.

Plaintiff’s evidence shows the following participation of blacks on the University of Delaware full time faculty during the thirteen year period from 1964- -65 to 1976 -77. 23

TABLE l 24

YEAR % BLACK FULLTIME FULLTIME TOTAL BLACK FACULTY FACULTY

1964- 65 323 0 0.0

1965- 66 342 1 0.3

1966- 67 381 2 0.5

1967- 68 438 1 0.2

1968- 69 498 2 0.4

1969- 70 542 3 0.5

1970- 71 616 4 0.6

1971- 72 646 8 1.2

1972- 73 683 15 2.2

1973- 74 714 13 1.8

1974- 75 753 12 25 1.6

1975- 76 765 13 25 1.7

1976- 77 818 12 1.5

Plaintiff’s evidence (PX-66) also shows the number of black hires to full time faculty positions for each year during the same period:

TABLE 2

YEAR #

1964- 65 0

1965- 66 1

1966- 67 1

1967- 68 0

1968- 69 1

1969- 70 1

1970- 71 1

1971- 72 6

1972- 73 8

1973- 74 2

1974- 75 3 26

1975- 76 3

1976- 77 0

Unfortunately, neither the plaintiff’s nor the defendants’ evidence gives a wholly reliable figure for the total number of full time faculty hires during this period or any portion thereof. 27

*1113 Between 1965 and 1970 there were only four black full time members of the University faculty. One of these was Dr. LeRoy Allen, a former President of Cheyney State College, who was brought into the Education Department as a full professor with tenure in 1968.

Between September of 1970 and the 1976-77 school year, various departments succeeded in bringing 23 blacks to the campus as full time faculty members or visiting professors. (PX-66). These men and women served in Education, English, Home Economics, Sociology, Black Studies, Secretarial Studies, Art, Physical Education, Nursing, Theater, Music, Life and Health Science and Accounting. (PX-66).

The record indicates that during the 1970 to 1977 period an additional 24 blacks either refused an offer of employment by a University Department as a full time faculty member or withdrew their applications while the University remained interested in them and was negotiating. At least four of this number declined two-different offers or invitations. 28 The Departments involved were Black Studies, Sociology, English, Theater, Chemical Engineering, Political Science, Mathematics, Home Economics, Biological Sciences, Music, Physical Education, Mechanical and Aerospace Engineering, Psychology, Accounting, and Business Administration. A review of a few of these situations will give an idea of the efforts that were made and the problems encountered.

Dr. Newton, who is head of the Black Studies Department and is himself black, testified that his top three choices for an Assistant Professor opening in 1975 or 1976 were black. One refused the offer and remained at predominantly black Howard University. Another required $20,000 and Associate or full Professor status. The third chose to go to another institution at the last minute. (Newton, A-176).

The Sociology Department, in approximately 1974, attempted to interest Prof. Edward Driver at the University of Massachusetts in coming to Delaware to succeed Dr. Scarpitti as Chairman of the Department. Professor Driver indicated it would require a salary of $32,000 to interest him. This was above the level that the Department-had been paying its chairman so it asked the University President and Provost whether negotiations should be terminated. The recruiters were told that the salary demand need not be a bar. Professor Driver ultimately decided to stay at Massachusetts, however. (Harlan, H-ll, 12).

On three occasions, departments managed to get blacks to campus as visiting professors and then attempted unsuccessfully to talk them into staying. 29

In 1971, the Political Science Department voted unanimously to hire Raymond Hall. (DX-61). He had been sought out through personal contact. Initially, he accepted the offer (DX-63) but later indicated that he would be unable to come that year. (Ingersoll, J-34; Boyer, L-15-25). The offer was then renewed for the following year. (DX-71). When Hall did not respond promptly to the renewed offer, the Department increased the amount of the offer. Hall went to Dartmouth, however.

Efforts have also been made to find blacks in industry. The Chemical Engineering Department recruited a black Ph.D. employed by the Mobil Oil Company, had him to the campus for an interview, and expressed interest in his joining the Department. He decided to remain in industry, however. (Metzner, K-120).

*1114 In 1974, the Department of Business Administration offered Dr. Jessie Colson a position as Chairperson of the Department of Secretarial Services with tenure. (DX-76). Dr. Colson initially accepted but was later relieved of her contractual obligation at her request. (Norman, L-88-96).

At the time of the last opening in the Physical Education Department, two qualified black candidates withdrew themselves from consideration when advised of the salary. (Brown, K-49; DX-394). A third, Raymond Ricketts, was offered the position and accepted it. (Brown, K-49). A short time later, however, he was released from his contract when he received a $1,000 higher offer from a university which he considered to have a more prestigious basketball program. (Brown, K-49; DX-394).

On two occasions, in 1972 and 1974, the Home Economics Department made offers to black candidates. First, Linda Jolly was offered a position (Bieber, J-116; DX-99), but turned it down (DX-100). Two years later, an offer was made to Lily Glover (Bieber, J — 120; DX-103), who also refused it. (DX-104).

The Music Department made an offer to Glenn Gore, who turned it down for what he thought was a more desirable position (Lee, K-32). There have been similar experiences in the Departments of Biological Sciences (Clark, J-132-33), Psychology (Ex-line, L-32), Civil Engineering (Chesson, I-28), and Urban Affairs (Brown, G-39).

These experiences indicate that substantial efforts were made by many departments during the 70’s to actively recruit blacks for full time faculty positions. They do not suggest that all of these efforts came without some prodding from the administration. President Trabant told the College of Marine Studies at one point that he would not approve any contracts for the Department, employment or otherwise, until they hired a black. (Trabant, N-48). He also threatened to disapprove all employment contracts of the Physical Education Department until it hired a black. (Trabant, N-49).

In 1975, the University established “Affirmative Action Goals and Timetables” for the hiring of blacks and females to faculty positions for the five year period from 1975 to 1980. (PX-45B). It was projected that there would be 206 hiring opportunities, of which 27, or 13.1%, would go to blacks. (Turner, P-3-4). PX-45B also indicates the goals and timetables for each year:

TABLE 3

PROJECTED HIRING YEAR OPPORTUNITIES BLACK GOAL

1975- 76 59 3 30

1976- 77 41 6

1977- 78 38 6

1978- 79 36 2

1979- 80 32 13

During the 1975-76 school year and prior to trial in April of 1977, three blacks were hired in full time faculty positions, two on a permanent basis and one as a visiting professor. 31 (Turner, P-34-35; PX-66).

G. The University’s Experience With The Renewal, Promotion And Tenure Of Black Full Time Faculty.

The only evidence of a failure to renew a black full time faculty member is evidence pertaining to Dr. Scott’s non-renewal.

The record is virtually devoid of data on black promotions and promotion eligibility, per se. We do know, however, that when the EEOC conducted its investigation in 1975, three of the fifteen blacks then on the faculty had become eligible for promotion, in the EEOC’s view, during the preceding three years and two of them had been promoted. (PX-56, p. 5). The data on black participation in conferrals of tenure is somewhat fuller. In 1976, there were 314 tenured faculty members at the University, only two of whom (Professors Allen and *1115 Newton) were black. Thus, only .6% of the tenured faculty was black. This figure can only be evaluated, however, with reference to the number and experience of black faculty theretofore employed by the University.

Since 1965, the University has hired 27 full time black faculty members, 32 three of whom were visiting professors. Of those 27, only two had been tenured at the time of trial. What follows is an analysis of the career patterns at the University of the 26 black faculty members other than Dr. Scott.

Dr. LeRoy Allen, the former President of Bluefield State College and Cheyney State College (Newton, A-148), was hired in 1968 as a Professor of Education. He was hired with tenure. He has remained at the University from 1968 to the present.

In 1972, Dr. James E. Newton was hired as an Assistant Professor 33 in Education. (Newton, A-143). In 1974, he resigned that post to become the Director of the Department of Black Studies. (Marks, J-15). He was an Associate Professor in the Black Studies Department. After a total of three years at the University, spent in two different departments, Newton was granted tenure in 1975. (Newton, A-149).

Dr. Gloria Hull was hired as an Assistant Professor in the English Department in 1971. (Bohner, H-41). At the time of trial, in 1977, she had qualified for and been nominated for promotion to Associate Professor with Tenure. 34 (Bohner, H-41). This nomination had been approved by the Provost, and remained only to be approved by the Board of Trustees. (Bohner, H-41).

James H. Sills, Jr. was hired as an Assistant Professor in Urban Affairs in 1971. (Sills, E-3). When he was hired, he had the degree of Master of Social Work. (Sills, E-24). Despite not having yet received his Ph.D., 35 he expected to be eligible for promotion in 1977. (Sills, E-26). This was due, in large part, to field experience he had in lieu of a Ph.D. (Sills, E-25, E-3-4).

Other than these four professors, 36 no black faculty member ever hired at the University had remained on the faculty for more than three years and also held a Ph.D., the normal minimum criteria for promotion to a tenured position. 37 As v411 be shown below, most of the other black