Although the First Amendment grants a university certain freedoms, the freedom to discriminate is not among them.
Giving no opinion regarding whether an African-American law professor who was denied tenure and terminated was in fact discriminated against because of his race, the D.C. Circuit, reversing the grant of summary judgment against his Title VII and DCHRA claims, found it simply could not state, as a matter of law, that he was not discriminated against based on his race. His breach of contract claims, which the lower court had found to be time-barred, were also revived (Mawakana v. Board of Trustees of the University of the District of Columbia, June 14, 2019, Henderson, K.).
Hired in 2006 for a three-year period, the professor’s contract was renewed and in 2010, he was promoted to associate professor. In July 2011, he applied for tenure and in the fall of 2012, he was assured by a faculty subcommittee that his application was in good shape. Shortly thereafter, however, another subcommittee told him there were concerns about his scholarship.
Denied tenure. In November, the law school dean and the faculty subcommittee chair suggested he withdraw his application. He refused and in February 2013, the subcommittee recommended denying tenure, a recommendation that was adopted by the full faculty evaluation and tenure committee, endorsed by the dean, adopted by the provost, and upheld by the university president. Shortly after that, his employment was terminated.
Believing he was denied tenure because of his race and that the university breached a contractual obligation to timely notify him of concerns regarding his scholarship, he sued alleging, among other things, discrimination in violation of Title VII and the D.C. Human Rights Act as well as breach of contract. The district court granted summary judgment to his university employer.
Academic deference. On appeal, the D.C. Circuit first rejected the lower court’s finding that as to the professor’s Title VII and DCHRA claims, the university was entitled to the “heightened deference accorded to academic decisions.” Although when originally passed, Title VII exempted educational institutions, the exemption was eliminated eight years later. Then in 1985, the Supreme Court, in Regents of the University of Michigan v. Ewing, held that deference to academia is appropriate in certain circumstances. Five years after that, however, the Court, in Univ. of Pa. v EEOC, suggested that notwithstanding Ewing, the normal Title VII standard applies to universities.
Importantly, the D.C. Circuit noted, the Penn Court did not overlook Ewing. Rather, it held that its decision should not “be understood as a retreat from th[e] principle of respect for legitimate academic decisionmaking” set forth in Ewing. “Consistent with Penn’s suggestion,” said the court here, “we believe Ewing and the concept of academic freedom do not entitle a university to special deference in Title VII tenure cases.”
Race discrimination. Turning to the professor’s Title VII and DCHRA claims, the court noted that the university offered a legitimate, nondiscriminatory reason for denying tenure: The professor’s scholarship was deficient. Nonetheless, the court found that a “constellation of factors” suggested a reasonable jury, viewing the evidence in a light most favorable to the professor, could find that race was a motivating factor in the university’s decision. Specifically, there was evidence the dean treated certain criteria differently when assessing the scholarship of black tenure candidates as opposed to white candidates. For example, she treated work published in the university’s own law review as inferior in assessing the application of a black candidate, but the university did not do the same with a white candidate’s work. And she told a black candidate applying for tenure that the university would not permit her to rely on legal briefs and memoranda as scholarship, while treating those materials as qualifying scholarship in assessing a white candidate’s application.
There was also evidence that the dean, who “played an outsized role in the tenure review process,” disfavored the professor’s application. For instance, while she originally favored him for promotion based on his “high quality” article, she later determined that the article did not meet tenure standards. This apparent change of position, said the court, could be viewed as pretextual as she stated in her deposition that the standard was the same for promotion and tenure.
Cleaning house. There was also evidence she supported every white candidate for tenure while raising concerns about more than half of the black applicants who applied for or considered applying for tenure. Further, the chairman of the faculty review committee wrote in an email to another faculty member: “After losing 4 colleagues these past months, all faculty of color, . . . I am not inclined to be pressured by more of [the dean’s] efforts to clean her house.”
In addition, two faculty members testified that they believed the university had disfavored black professors in the tenure process. Moreover, of the eight white applicants who applied for tenure between the time the dean took over in 1999 and the time the professor filed suit in 2014, each received tenure. By contrast, of the seven black professors who applied for tenure within that time period, only five received tenure and of those five, one was initially denied until after her Title VII race discrimination claim survived a motion to dismiss. Further, two other black candidates were dissuaded from applying for tenure by the dean, who told them they had no chance of succeeding. Taking all these factors together, the court found that it could not say as a matter of law that the professor was not discriminated against based on race.
Breach of contract. Turning to his breach of contract claim, the court first found his claims were timely to the extent they alleged the university’s breach occurred when it failed to meet with him during the 2011-12 academic year, which was less than three years before he filed suit. As to the merits, there remained an unresolved fact dispute as to whether an implied-in-fact contract between the professor and the university existed and, if it did, what the terms and intent of the contract were. Thus, the district court’s grant of summary judgment was premature.
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