If You Want to Know What Your Colleagues Think About You, Take Their Deposition: Tenure Litigation at Michigan
As was widely reported, the University of Michigan Law School is defending a discrimination lawsuit by a former professor denied tenure by two votes. OUTlaws, the Wayne State Law School gay, lesbian, bisexual and trandgender student group, posted most of the litigation papers on line here. Although the circumstances are on any view of the facts unfortunate, the documents, including emails, letters and depositions of two dozen or so profs, represent one of the most comprehensive portraits of a tenure decision and the institutional personality of a law faculty that is ever likely to be publicly available. Even key participants in a decision could not know the facts at the level of detail possible when witnesses are put under oath and documents obtained by subpoena. There is much interesting in this material, for example, the conduct of the lawyers for the lawyers. As NYLS Professor Arthur Leonard blogged here, Michigan’s counsel at first took the embarrassing position that their policy of non-discrimination based on sexual orientation was not enforceable in contract, not a binding promise. They later withdrew that position.
If Michigan’s lawyers took a litigation position that the University felt compelled to repudiate, plaintiff’s lawyers also made an argument that I find hard to believe would have been advanced directly by a faculty member. One of the no votes, plaintiff’s attorneys argued, might well be unworthy of consideration because it was cast by a professor with a mere Ph.D.; this faculty member “has no legal training and is not a lawyer” (page 23 of this document). Wow–many non-J.D.s do spectacular work and have as much to say about legal scholarship as we lawyers–I’ll bet that Yale, for example, lets Susan Rose-Ackerman and Alvin Klevorick vote on important academic matters without fear that their non-J.D.-hood compromises the quality of decisionmaking.
The papers also raise the delicate question of whether membership in a church with discriminatory views is evidence that the member also has discriminatory views. Here is the transcript of a tape recording introduced into evidence on summary judgment. The recording was made by a private detective who chatted up a faculty member’s pastor; the pastor did not conceal the church’s views on being gay. Putting a wire on a priest–that’s hardball.