THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Monday, September 23, 1996 TAG: 9609230026
SECTION: LOCAL PAGE: A1 EDITION: FINAL
SOURCE: BY PHILIP WALZER, STAFF WRITER
LENGTH: 163 lines
Five male professors are planning to take Virginia Commonwealth University to court today, contending that a $440,000 lump-sum payment to about 170 female faculty members that was designed to erase gender inequity violated the men's rights.
The trial, which is scheduled to begin today in U.S. District Court in Richmond, hinges on the statistical validity of a salary study, conducted by the university in 1988, that led to the raises for the women.
``We happen to believe in equal pay for equal work,'' said one of the men who filed the suit, Ted J. Smith, an associate professor of mass communications. ``We just thought VCU went about this the wrong way. The study they did was inadequate to show that there were gender-based inequities.''
Smith said, however, that both sides are working on a settlement. ``We are optimistic that this can be settled without a trial,'' he said.
VCU's president, Eugene P. Trani, declined comment on the case, referring questions to the state attorney general's office. Mark Miner, a spokesman for the office, did not return phone calls last week.
Diana H. Scully, director of women's studies at VCU, also declined comment.
Earlier this year, Trani defended the university's actions, saying, ``I will reiterate what we've been saying since the implementation of this study four years ago: There was an inequity in the salaries of certain female faculty members at this institution, and as far as we are concerned, we righted that wrong.''
National organizations have joined in the fray.
The Center for Individual Rights, a Washington organization that promotes conservative legal causes in higher education, is co-representing the male professors. The center also represented former University of Virginia student Ron Rosenberger in his successful case against U.Va. after it denied funding to a religious publication he edited.
On the other side, the American Association of University Professors filed a friend-of-the-court brief on behalf of Virginia Commonwealth.
The case has drawn national attention, but Ann H. Franke, the counsel for the professors' association, said she doubted that a victory for the men would put a damper on affirmative action measures across the country. ``The trial will be focused on the nuances of factors in a statistical analysis,'' she said.
Yet one of the lawyers representing the men, Richmond attorney Bradley Cavedo, said he believed the suit had already discouraged some universities from enacting group remedies.
``I think the effect on a national level has been to send a warning shot across the bow of every university and major corporation in the country that in response to certain political pressures to do a study like this, if they do it, they have to do it right,'' he said.
Old Dominion University's president, James V. Koch, is an economist who has testified in ``gender equity'' cases. Judges, he said, are more sympathetic to attempts to compensate individuals for past discrimination than to ``class-wide remedies.''
``That's certainly much more subject to challenge and is not something I would support at Old Dominion University,'' Koch said. ODU, he said, reviews professors' claims of salary inequity on a case-by-case basis but has not instituted university-wide compensation.
VCU surveyed 770 full-time faculty members, including 187 women. Its study found that female faculty members earned an average of $1,354 less than males, taking into account such factors as academic department, rank of professor and years of experience.
As a result, the university in 1992 allotted $440,000 for raises for 172 of the female professors.
But the five male professors argued in their suit, filed in 1993, that the analysis was flawed because it didn't consider teaching loads, quality of teaching and quantity of research. Those factors, they said, are crucial in deciding faculty raises.
``You could be there, in theory, for five years after you've reached tenure and you start sitting around on your rear end and not do anything,'' Cavedo said. ``So you might be passed over for raises or you might have gotten a minimum raise.''
The survey, he said, ``was not capable of establishing what it was purported to be designed to establish. The study found a significant difference in pay by sex, but it didn't locate where it was happening.''
Cavedo also said the university inaccurately measured ``years of experience'' by counting the number of years since the professor's last degree. Some female professors, he said, might have been credited for years they took off teaching to raise children.
``I think if the study had been done correctly, it would not have found a significant disparity in wages between men and women,'' he said.
But Franke, the lawyer for the American Association of University Professors, said the men had not proved that the inclusion of other factors would have changed the results of the study.
Also, she said, some of the additional criteria they suggested would have been virtually impossible to calculate, such as quantity of research. ``That varies dramatically by discipline,'' Franke said, ``and the fact that I may have four papers and you may have one book doesn't mean that one of us has a better quality of scholarship than the other. . . .
``We believe that the statistical analysis that the university used was a reasonable way to flag salary differentials that can be attributed to gender,'' Franke said. ``We were unimpressed that the plaintiffs . . . had evidence that additional factors would have made a difference.''
Across the country, disparities linger between the salaries of male and female faculty members, according to the American Association of University Professors.
The organization released a study this year showing gaps greater than $1,200 in the average salaries of the nation's male and female faculty. In the 1995-96 school year, men who were full professors earned an average of $66,740 - $7,750 more than the women's $58,990.
The differential narrowed as the rank decreased. Among instructors, males earned $31,550, compared with $30,340 for women.
``The data make it quite clear that pay differences between male and female academics have been quite constant over the past 15 years,'' the report said.
Virginia has not calculated statistics showing average faculty salaries by gender, said Donald J. Finley, associate director of the State Council of Higher Education.
Koch, ODU's president, said it's dangerous to generalize about the pay differentials. ``Depending on the institution, some are valid and some are invalid,'' he said.
What might be valid, he said, are ``market-driven'' differences between academic departments. For instance, he said, engineering professors, who are predominantly male, command higher salaries than professors in sociology, where there are more females, because the engineers are in greater demand.
But, he said, among professors with the same level of experience in the same department, ``salaries should be roughly the same. If they're not, you may have a problem.''
The VCU case has had a tangled history in the courts.
In 1994, a U.S. District Court judge in Richmond threw out the case before it went to trial, finding insufficient grounds to challenge the university's actions.
The men - two of whom have since left VCU - appealed to the 4th U.S. Circuit Court of Appeals. A three-judge panel of the appeals court voted last year to reinstate the case.
Then VCU asked the full appeals court to rule on the matter. In May, it reaffirmed the panel's decision, voting 9-5 to send the case back to the district court for a jury trial.
Though the judges' opinions discussed the merits of the salary study, they also revealed the deep-seated tensions over the issue of affirmative action.
Chief Judge J. Harvie Wilkinson III, siding with the majority, called VCU's study a ``flawed regression analysis'' that ``does not identify past discrimination with anything like the precision necessary to justify measures as drastic as single race or single sex pay raises and promotions.
``What the regression analysis does do is set society upon a cycle of reparations and recriminations in which individuals are disadvantaged for no other reason than their membership in a disfavored race or gender.''
But Blane Michael, one of the dissenters, wrote: ``We all wish to live and have our children learn in a society where gender and race have no place in evaluating merit and a person's worth. In this case, however, the administration at VCU was confronted with facts that showed that its institution had not yet fully attained those ideals - women were being paid less as a result of their sex.
``That VCU should choose, on its own accord, to remedy such unequal treatment is an effort that should be applauded, not condemned.'' MEMO: CASE FACTS
Five VCU male profs are going to court against their school today,
complaining about a lump sum payment to female professors in the early
'90s to address gender differences in salaries.
The professors say the university's payout survey was faulty because
it didn't include factors such as numbers of publications and years of
experience; the university says it was on target.
The bigger issue
Whether this will further close the door on affirmative action
measures. The case raises anew the question: Are the gender differences
in pay the result of longstanding bias or valid factors?
KEYWORDS: GENDER EQUITY AFFIRMATIVE ACTION SALARY by CNB