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.

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2 Responses

  1. Kaimi says:

    Yeah, the papers are really something.

    And you’re right to point out some of the more problematic arguments. The religion / discrimination interaction is a doozy.

    The Plaintiff argues that colleagues who attend a Baptist church should, as a rule, not have their votes counted, because the Baptist church’s official position on homosexuality is that it is a sin. This sounds problematic. First, because there’s specific deposition testimony, such as that this particular faculty member doesn’t believe homosexuality is a sin.

    And second, even if he did, does that really preclude his ability to make decisions on employment? The vote isn’t for pastor, it’s a work-related vote. Limiting religious faculty members’ ability to vote, to people who would not be viewed as sinful, seems to discriminate on the grounds of religion.

    Plus, given the broad definition of sin, it’s almost certainly overbroad. After all, when it comes down to it, any failure to accept Jesus is going to be a sin for many Christian denominations. Does that mean that they should never be allowed to vote on any Jewish or Muslim or atheist colleagues?

    The bottom line, I think, has to be not whether a person’s religion has an official position on homosexuality, or even whether that person personally thinks homosexuality is a sin in a metaphysical sense, but rather, whether that private metaphysical judgment played a role in their tenure vote.

    (And I have wonder whether any of the favorable-vote faculty also belong to religions that officially prohibit homosexuality. If so, shouldn’t their votes be removed, too?)

  2. anon says:

    I would agree it is stupid politics, but I don’t think that Michigan’s contract defense was bad on the merits. When there is an express disclaimer, and when the plaintiff is a contract law professor, it actually is a pretty strong legal argument that plaintiff had no legally protected expectation here. The University of Michigan would not be the first public entity to lose a lawsuit because a good legal argument is forfeited by politics, but why should Peter Hammer be the beneficiary?

    And do we really want this case to be addressed on the merits? Tenure decisions are–and everyone knows this–making sausage. I would not be shocked if Peter Hammer lost votes because he was gay. I would be even less shocked if he also gained votes that he otherwise would not have received solely because he was gay. If we are going to put every faculty member under oath and ask them what they think about Lawrence v. Texas, which every ambitious lawyer knows–a public answer either way is Senate confirmation suicide, tenure fights are going to become even uglier than they are now.