A former Michigan law professor is suing the university because he was denied tenure:
The professor, Peter Hammer, won a majority of votes of the faculty of the law school in his case. But the 18-12 margin was two shy of the two-thirds requirement to win tenure, so he lost his job, and now is a professor of law at Wayne State University. He says he was the first male faculty member rejected by the faculty for tenure in 40 years.
Like lots of tenure disputes, this one has many facets — debates on Hammer’s scholarship, disputes on deadlines and technical parts of the tenure and grievance process at Michigan. And as is the case with many tenure lawsuits, the university says that it and its employees cannot respond to specific questions about the case. The university does, however, say that the quality of Hammer’s scholarship cost him his tenure bid, not his sexual orientation, and the university’s briefs cite critics of his scholarship, just as supporters of the tenure bid cited praise.
That’s all fairly standard stuff, as these cases go. What makes this particular case newsworthy is that Hammer is advancing two novel legal theories in his suit, which alleges that the real reason he was let go is because he is openly gay.
The first of these is a clever attempt to get around the fact that Michigan does not have anti-discrimination laws that apply to sexual orientation:
Hammer’s suit is based on contract law, not discrimination law; there are no federal or Michigan laws barring discrimination on the basis of sexual orientation on which he could sue. His suit is based on the idea that he was assured when accepting the job at Michigan (and turning down other offers) of the university’s commitment to equity for gay employees, as outlined in the faculty handbook and various university policies.
This is a university lawyer’s nightmare, I imagine. Faculty handbooks and university policies tend to be loaded up with language about committments to diversity, equality, liberty, fraternity, and all the rest. If all that stuff is going to be taken as a contract with faculty and students, that leads straight into a sucking swamp of lawsuits.
Of course, this also puts Michigan in a bit of a bind, as you can see from their predictable and faintly comical attempt to get out from under this:
One part of Michigan’s defense that Hammer said raises questions about the university’s commitment to equity (and that the university has withdrawn) was to argue that the statements in university policies barring bias against gay people couldn’t be enforced in court. When Hammer and his lawyers saw that argument, Hammer approached the gay faculty group at Michigan and said he showed them that under this legal theory of the university’s, gay employees had no real rights against bias.
R. Van Harrison, a professor of medical education at Michigan and coordinator of the University of Michigan LGBT Faculty Alliance, confirmed that after Hammer told the group about the legal argument being made, gay faculty members had meetings with senior administrators at Michigan, who then agreed to withdraw that stance.
There’s just no way for them to win, here. They can’t really go into court and argue “All that warm-fuzzy stuff about equality? We didn’t actually mean any of it…” without setting off a general revolt among the faculty, but not contesting that part would seem to put them in a bad legal position. Their lawyers have probably lost a good bit of sleep over this one.
The really notable (and unpleasant) thing about Hammer’s case is his other argument, or rather, the way he goes about it:
He examined the records and backgrounds of some of the faculty members who voted against him. In several cases (enough to affect the outcome of the vote), he argues that the professors’ comments or writings or affiliations raise questions about their fairness — especially because in the discovery process he maintains that they were not forthright about their beliefs. For example, one professor is a member of a church that will not admit gay people unless they promise to “reform their ways,” according to court documents. Yet the professor, according to depositions and statements provided by Hammer’s lawyer, denied knowing his church’s views on gay people, even though they are identifiable from links on the church’s Web site, and the professor teaches Sunday school there. In another case, a professor’s opposition to same-sex marriage is cited. Another faculty member wrote of gay people as a “pariah group.”
In discovery, Hammer’s lawyers asked these and other professors questions about hot-button social issues (not only on gay rights, but abortion in some cases) to document what Hammer considers to be a pattern of people with conservative social values misrepresenting their own views. (In all of these cases, the professors have said that they voted against Hammer because they didn’t think his scholarship rose to the necessary level of excellence and not because Hammer is gay, and the university backs these professors.)
This makes me really uncomfortable. I don’t have any sympathy for the anti-gay views attributed to these professors (which may or may not be accurate– the IHE article doesn’t give enough detail to say whether they’ve been quote-mined unfairly, and I don’t have the time to research it myself), but I don’t like this approach, either.
What Hammer is doing here seems to be claiming that since these people have conservative social views, they are automatially incapable of making any objective decision about the scholarship of someone who happens to be gay. At least, not when that decision happens to be negative– presumably, he’d be happy to take “Yes” votes from these same people.
And notice that he doesn’t appear to be claiming they had any special animus toward him, or that they said anything specific about his case, or the tenuring of gay faculty in general. There’s no indication that they did anything to create an uncomfortable environment for him at Michigan. This is an allegation of bias based on beliefs inferred from membership in various off-campus groups (because, of course, anyone who belongs to an organization agrees with every policy and action of that organization, which is why the Democratic party is an unstoppable progressive juggernaut), and answers to general questions about social issues.
That creeps me out. For academic institutions to function the way they’re supposed to, there needs to be a sort of presumption of professionalism, a base assumption that people will make a good-faith effort to put aside personal biases and make decisions on as objective a basis as possible. What Hammer is arguing is precisely the opposite– he’s arguing for a presumption of bias, that people will not be able to put aside whatever political beliefs they have when it comes time to make decisions.
Hammer’s argument is essentially the gay version of the Gonzales tenure case that’s caused such a stir among the culture warriors of ScienceBlogs. He’s essentially claiming that because these professors can be presumed to have certain ideological beliefs, they can be presumed to be incapable of judging his scholarship objectively. This is the same claim being made by Gonzales’s supporters– that because people in his department believe in evolution, they can be presumed to be incapable of judging his “Intelligent Design” work objectively.
The problem here is that there’s no reason both sides can’t be right. It’s perfectly possible for Gonzales to be both a creationist whack job and below the publication standards for tenure in his department (as Ed Brayton demonstrates). It may be that Hammer’s conservative colleagues have a dim view of gay people, but that doesn’t mean he doesn’t come up short in other ways.
I’m also not sure what the remedy would be, here. Are faculty with conservative social views going to be expected to recuse themselves from the tenure decisions of gay faculty? That way lies madness. Should we then expect liberal faculty to sit out the tenure cases of conservative scholars? Are people who believe in evolution disqualified from being able to vote on the tenure cases of Discovery Institute fellows?
In the end, I’d be a little surprised if a court goes for either of Hammer’s arguments. The university will stick to their argument that his schoarship was insufficient, and they usually get a lot of leeway on that. I really hope that the second argument doesn’t end up carrying the day for him, though, because I think it would be a lousy precedent for academia in general.