Academic journal article Texas Journal on Civil Liberties & Civil Rights

Exploring Viable Options for Class Actions for Underrepresented African-American Professors in American Universities Post-Wal-Mart V. Dukes

Academic journal article Texas Journal on Civil Liberties & Civil Rights

Exploring Viable Options for Class Actions for Underrepresented African-American Professors in American Universities Post-Wal-Mart V. Dukes

Article excerpt

I. INTRODUCTION.................... 212

II. OVERVIEW OF EMPLOYMENT DISCRIMINATION LAW AND CLASS ACTION.................... 214

A. Title VII.................... 214

B. Disparate Treatment and Disparate Impact.................... 215

C. Class Actions.................... 216

1. The Across-the-Board Approach-Before Falcon.......... 217

2. General Telephone Company of the Southwest v. Falcon Decision.................... 219

3. After Falcon.................... 220

III. WAL-MART DECISION.................... 221

A. Before and After.................... 224

B. Wal-Mart under Falcon's Decision.................... 224

IV. AFRICAN-AMERICAN PROFESSORIATE.................... 226

A. Tenure.................... 226

B. System-Wide Disparate Treatment.................... 228

1. Coser v. Moore.................... 229

2. Chang v. Rhode Island.................... 229

3. Analysis in the Context of African-American Professors.................... 231

C. Disparate Impact.................... 234

V. CONCLUSION.................... 235

I. INTRODUCTION

In recent decades, racial differences in faculty salaries, tenure, and academic rank have become prominent issues in our educational landscape. Next to Hispanics, African Americans account for the smallest percentage of college and university faculty in the United States/ Many of the colleges and universities in the United States do not have any African-American faculty members, and an even greater number of them do not employ any tenured African-American faculty.3 Because of declining enrollment, greater financial pressures, and an increasing emphasis on funded research, achieving tenure at major institutions of higher learning has become a highly-selective process.4

Faculty salaries are "primarily determined by an individual's qualifications, including their level of educational attainment, length of service and experience, scholarly productivity, amount of administrative responsibilities, and teaching performance."5 "[Fjaculty who are equal in these attributes of human capital and who work in comparable institutions should have equivalent tenure and rank and receive equal pay regardless of their gender or their race/ethnicity."6

Research suggests that the underrepresentation of AfricanAmerican professors in universities is "not completely and consistently explained by experience, productivity, and performance."7 Discrimination continues8 decades after the passage of the Equal Pay Act of 1963 (EPA) and Title VII of the Civil Rights Act of 1964 (Title VII), both of which prohibit discrimination in employment.9 Just four percent of professors are African-American,10 whereas African Americans comprise 13.2% of the United States population.11 State and federal courts have recognized the importance of safeguarding academic freedom in institutions of higher learning,12 but they have not yet attempted to impose promotion and tenure standards on U.S. colleges and universities.13 However, the courts have recognized that the subjective nature of academic personnel evaluation decisions creates the potential for race-based, as well as other types of, discrimination.14

Despite statutory schemes prohibiting discrimination, fear of retaliation may deter individual plaintiffs from bringing employment discrimination claims.15 An additional deterrent is the financial risk.16 Class actions, pursuant to Federal Rule of Civil Procedure Rule 23 (Rule 23), are usefiil to plaintiffs subject to employment discrimination. Ultimately, the class action permits "individuals to pool their resources, which allows them to share litigation risks and burdens," helping to motivate and inspire confidence in individual class members.17 However, availability of a class action for employees subject to discrimination has been compromised throughout our history with various interpretations by the courts. The Supreme Court sought to settle Rule 23's class certification requirements through Wal-Mart v. …

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