Why a white woman's discrimination lawsuit against the Getty is no joke and could set a precedent

May 10, 2016 10:40 AM PT

The case of Samantha Niemann vs. the Getty Foundation has generated all manner of headlines and Internet jabs after the white university student claimed she had been deterred from applying for an internship program geared toward underrepresented minorities.

Boing Boing responded with a tearful emoji under the headline “White woman wants minority internship, sues Getty Foundation.” The arts website Hyperallergic illustrated its piece with an image of a crying figure taken from a 15th century painting by the Flemish master Rogier van der Weyden. (Art world smackdowns are very high brow.)

But the discrimination lawsuit filed in Los Angeles Superior Court is no laughing matter. If the case were to be decided in court, it could be precedent-setting, affecting the ways that private foundations approach issues of diversity.

“The vast majority of cases about affirmative action generally involve the government,” says Erwin Chemerinsky, dean at UC Irvine’s School of Law, referring to lawsuits over race-based admissions that white students have filed against public university systems. “This is an unusual situation because it’s a private foundation using its money to promote diversity through internships. I don’t know of cases that have involved a situation like this, a private foundation using its own money.”

Still, the Getty Foundation’s nuanced definition of diversity — along with the fact that its program has accepted at least one white student in the past — may make it tricky for Niemann’s lawsuit to succeed.

“So long as [the Getty is] willing to consider all individuals who are underrepresented,” says Chemerinsky, “they could prevail.”

Since 1993, the Getty Foundation’s Multicultural Undergraduate Internship program has funded thousands of internships at dozens of cultural organizations around Los Angeles County.

These take place at institutions large and small — from the Los Angeles County Museum of Art to the Angels Gate Cultural Center in San Pedro, a community center that organizes exhibitions and art-making workshops. As part of the experience, students learn about the professional aspects of arts management: curation, the stewardship of collections, conservation, installation, publishing, education and more.

Though the Getty funds the program, it doesn’t manage all of the applications. Students apply directly to the institutions for which they would like to work. (Of 110 total interns funded by the Getty in 2016, only 17 will work at the Getty itself. All others applied directly to more than 60 participating institutions around Los Angeles County.)

The internship is highly competitive, drawing applicants from Ivy League and Pac-12 schools, among other prestigious institutions — and, in the past, has attracted at least one former Rhodes Scholar. (Full disclosure: I met with a group of MUI participants at the Getty Center two years ago to talk about careers in arts journalism, an appearance for which I was not remunerated.)

Since its inception, the program has been devoted to providing vital professional experience to members of minority groups who remain sorely underrepresented in the world of fine art — especially in professional areas. According to a survey released by the Andrew W. Mellon Foundation last year, 84% of high-level museum positions (curators, conservators, educators and leaders) are occupied by whites, and about 70% of those high-level positions are occupied by women.

In addition, the Getty Foundation has adapted the program over the years to shifting definitions of diversity. In a statement issued in response to the lawsuit, Ron Hartwig, vice president of communications at the J. Paul Getty Trust, stated: “We review and revise all of our grant categories from time to time and over the years have made a number of policy and procedural changes to the internship program.”

According to language on the Getty Foundation’s website, to apply for the internships, students must “be of a group underrepresented in museums and visual arts organizations, including, but not limited to, individuals of African American, Asian, Latino/Hispanic, Native American, or Pacific Islander descent.”

This is an unusual situation because it’s a private foundation using its money to promote diversity through internships.

— Erwin Chemerinsky, dean at UC Irvine School of Law

Niemann’s legal complaint alleges that the Getty “harassed, discriminated, and retaliated against Plaintiff due to and substantially motivated by Plaintiff’s race/national origin” under California Code 12940, which prohibits discrimination in professional training programs, and the Unruh Civil Rights of 1959, which prohibits racial and other discrimination in private business.

“I was denied an hire [sic] to an internship program because I am white and because I am not within the specified minorty [sic] groups African American, Asian, Latino, Hispanic, Native American or Pacific Islander,” states Niemann in the complaint. “I protested, and was still denied opportunities to work for The Getty Foundation. The getty [sic] failed to investigate and failed to take appropriate remedial action and failed to hire me.”

The suit goes on to state that Niemann was well-qualified for the internship since she had a 3.7 grade point average at Southern Utah University.

But Chemerinsky says that the Getty’s open definition of what constitutes diversity is going to put a particularly heavy onus on Niemann to prove her claims — since the internship includes, but isn’t “limited to” racial and ethnic minorities.

“It’s about underrepresented groups,” he explains. “As described, their criteria are not race-based.”

Moreover, the program has led to the hire of at least one white intern in the past — something which may make Niemann’s case even trickier to prove.

Marshall Astor, who now works as an administrator at Otis College of Art and Design, previously served as director at Angel’s Gate Cultural Center. In this post, he frequently hired interns funded by the Getty’s multicultural program, including one white intern in 2006.

“It was a guy who had been born in Colombia of white missionary parents,” says Astor. “This guy had an incredible international background and he had this great resume ... I called the Getty and said, ‘I want to place this guy,’ and they said, ‘It’s your choice.’”

Astor hired him and says he is glad he did.

“He was a practicing evangelical and I think a lot of people in the art world sometimes feel uncomfortable bringing someone that is Christian into an arts organization,” he adds. “But he was a fascinating person and he was absolutely qualified to be in the program. He added to the diversity narrative in the arts.”

Chemerinsky says this could give the Getty a legal advantage. “As long as the criteria allows whites from underrepresented groups,” he says, “they will likely prevail.”

Even so, the suit will force a not-for-profit foundation (albeit a well-funded one) to spend to defend itself in court for attempting to tackle an issue that is a very real problem.

The Mellon Report found that minorities do over-index in one area of institutional staffing: security and facilities maintenance. In other words, the nonprofessional jobs with no power to affect the mission or vision of an institution. In an urban center like Los Angeles, which is majority minority, this can translate into public cultural institutions that don’t reflect the realities of the city around them.

“The Getty is very proud of the highly successful Multicultural Undergraduate Internship Program,” the Getty’s Hartwig said in his statement. “Over the past 23 years, Getty grants have supported over 3,000 internships at 152 organizations throughout the county.”

This long-running initiative has been important in chipping away at a historic inequity. Some participants of the program have been hired by the institutions they’ve worked at (as featured in this video). Others have picked up valuable knowledge before moving on to other jobs in the arts.

The multicultural students I met during my session at the Getty were energetic, smart and curious and represented a wide array of social, economic, racial, ethnic and geographic demographics — students whose complex range of experiences brought more to the table than simply a nice GPA. They are people the museums of the future will need. Let’s hope the Niemann case doesn’t undo all of the Getty’s good work.

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Find me on Twitter @cmonstah.