Rudebusch

Opinion by Judge McKEOWN; Partial Concurrence and Partial Dissent by Judge KLEINFELD.

We address here a challenge to the onetime base pay adjustments given to certain women and minority faculty by Northern Arizona University in an effort to achieve pay equity mandated by federal regulations. The appeal presents claims under both the Equal Protection Clause as against the university president and under Title VII as against the University. We affirm the finding of qualified immunity for the university president. We analyze the Title VII claim in accordance with the Supreme Court’s framework in Johnson v. Transportation Agency, 480 U.S. 616 , 107 S.Ct. 1442 , 94 L.Ed.2d 615 (1987). Because the aggrieved professors did not challenge the jury’s determination that a manifest imbalance justified the pay equity plan, we do not disturb this finding on appeal. Although we hold that the plan did not unnecessarily trammel the rights of the professors who brought suit, we nonetheless reverse and remand because the question whether the adjustments were more than remedial raises a factual issue that cannot, as occurred here, be decided on summary judgment.

Background

This lawsuit stems from…

concurring in part and dissenting in part:

I.

I concur in the majority’s conclusion that President Hughes, acting on behalf of the State of Arizona, denied equal protection of the law to whites by categorically excluding them on account of their race from pay raises given to minorities. Appellants’ brief puts at issue whether female professors were denied equal protection with respect to minority males based on gender. Though the arguments relating to race and sex are commingled, appellants’s brief puts at issue whether white males were denied equal protection with respect to females as well as minorities. The first and second issues presented for review address “non-minority males” and “the non-minority male Class Action Plaintiffs.” I understand the majority decision to imply that, if the majority so read the briefs, then we would also be in agreement that President Hughes denied equal protection of the law to males on the basis of sex and white females on the basis of race.

I also concur in the majority’s conclusion that pay raises limited to minorities and females would not deny equal protection of the law, if they were narrowly tailored to remedy past discrimination and…