Tracking Bias or Guilt by Association?

Inside Higher Education
Dec. 19
Tracking Bias or Guilt by Association?

If a professor is a member of a church that holds anti-gay views, and isn’t forthright about those views, does that make the professor’s vote against the tenure bid of a gay professor suspect?
That is one of the questions explored in an unusual lawsuit against the University of Michigan — filed nearly three years ago but thus far bogged down in preliminary motions. State courts have twice rejected requests by Michigan to have the case dismissed and a third request was scheduled to be heard this week, but postponed. 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. (Many documents about the case are available on a Web site maintained by the gay organization of the Wayne State law school, the OUTlaws.)
Some parts of the tenure suit — however it is eventually resolved — have raised new legal theories with potential ramification beyond Hammer and Michigan. To Hammer, these factors point to the vulnerability of gay faculty members to bias and the need for more protections and more legal approaches to fight discrimination. But some experts on tenure and higher education are worried that these arguments — whatever the veracity of Hammer’s claims — pose dangers to the tenure process.
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. Hammer’s legal specialties are health policy and Southeast Asia, especially Cambodia. So while he was out to colleagues, his teaching and scholarship did not focus on gay issues.
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.
An argument made by Hammer is also attracting attention. 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.)
[To read the entire article, go to: http://www.insidehighered.com/news/2007/12/19/hammer]