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defense that Hammer said raises questions about the university's commitment to equity (and that the university has withdrawn) was to argue that the statements in university policies barring bias against gay people couldn't be enforced in court.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.
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"the university's commitment to equity for gay employees"
Apply to UC/Berkeley's Boalt Hall. A sexually harassed Black lesbian single mother intravenous drug addict with AIDS doing the Macarena in a wheelchair willl come in as tenured Dean. "Inert intelligence is the paradigm of institutional racism."
Diversity demands all opinions are of equal validity (with social advocacy being more equal than others). The only remaining variable is amplitude. Competent acheivers have their productivity confiscated then compassionately redistributed (less user fees) amonst the unproductive. What is wrong with that? The productive don't deserve to retain anything.
"He says he was the first male faculty member rejected by the faculty for tenure in 40 years."
Makes you wonder how many female faculty members were rejected for tenure in the last 40 years. Can't wait to see if Zuska will weigh in on this.
I'm not sure that what Mr. Hammer is arguing (in terms of bias) is very much different from the arguments that women have been making about academia for years.
In some sense, because of the democratic process by which university professors are hired and tenured, it's more like being made a member of a club than being hired by a corporation. Clubs have very wide leeway in terms of who they can reject (see that Supreme Court case about the Boy Scouts, for example), and I suspect some of that rubs off on faculty as well. And, as you say, there's simply no remedy. Hiring/tenure decisions are made by the faculty of the department, they can vote someone down for entirely personal reasons ("didn't like his shoes"), and, most importantly, they simply can't be fired for their votes on hiring/tenure committees. In contrast, at a corporation, a supervisor can be fired for discriminatory behavior towards an employee.
Whether this is a good thing or not, I don't know, but I do agree with you that this guy is unlikely to succeed.
I agree that the second argument he makes is a bit disturbing. But aren't you misrepresenting the argument pretty badly?
Your entire response is based on the idea that he is trying to show that some faculty have conservative values. But the quote you provide clearly says he is trying to "document [that conservative ones are] misrepresenting their own views". He's not saying that these faculty are conservative, but that they are lying when they say "oh, it had nothing to do with his being gay". And he's doing that by showing that, on lots of issues, they lie about their own views.
I take a position different from what "creeps out" Chad, and different from Uncle Al.
First, I've never had a tenure track faculty position, only non-tenure track Adjunct professorships in Mathematics and in Astronomy, one at a provate university, one at a community college. Nor is my wife's professorship in Physics tenure-track -- as her school only has 1-year and 3-year contracts. She has turned in her Sabbatical proposal, having served the requisite 7 full years. Hence my experience is second hand.
I have friends who got tenure, and friends who were denied tenure. Two of my friends sued when denied tenure, and both won. In both cases, the professor in question was a woman, and the decisionmakers overwhelmingly male. In one of these cases, the woman was the first woman hired from outside as a female professor in the university (the only earlier female professor having been promoted from a fellowship).
In both cases, scholarship was initially cited. In both cases, the court found that the scholarship matter was "pretextual."
Even though women make up a majority of US college students today, they do not make up a majority of professorships, let alone deanships, chancellorship, or presidencies.
I conclude that gender is an issue. I do believe that Gay, Lesbian, Bisexual, Transgender is a gender issue that can matter (case by case) in the workplace, including Academe.
It can cut both ways. I lost a position in which I'd received extremely high rating by students, for my teaching several copurses over 5 semesters, and while outpublishing the entire department -- in fact, the entire division. The position was lost at the whim and pretext (my not having a PhD in the precise field I was teaching) of an openly lesbian dean, who had promoted her lesbian lover to assistant dean.
The school was, I infer, afraid to fire her, and be dragged into court on a wrongful termination suit with a sexual discrimination charge as well. She told people that she was invulnerable, as any such attack would be judged sexist and homophobic. She was also shunned by the other deans, who considered her a psychopath exacerbated by alcoholism with drinking on the job.
After she'd cleared out everyone she didn't like, especially those who criticized her Math, she was eventually deposed from deanship by the Academic VP. The VP and she settled on this: she remained in place on a non-extendible 3 year contract as professor. But at the Deanship level of pay. Her lover was likewise deposed from assistant deanship.
There was a scholarship issue. The Dean had one (1!) refereed publication, from when she was third-listed of 3 authors, while a grad student. Since then, all she'd published were spurious soft-science papers from ill-designed test instruments on statistically insignificant samples, with the Math done wrong.
Anyway, I feel that:
(1) Handbooks and course catalogs are contractual offers; students, faculty, and staff, by accepting employment or matriculation, have agreed to the offer, and thus a contract has been formed.
(2) LGBT issues can be genuine, or shield the unqualified -- the same as any other issues. The Law sometimes uses language that "a shield should not be used as a sword."
(3) Objectivity? Give me a break. There is no such thing as Objectivity in academic politics. As Lord Valdemort said: "There is no such thing as good and evil. There is only POWER!"
As a sad footnote, the first-hired woman professor I mentioned, who sued after being denied tenure, did thus win tenure. But she was an outcast by the Old Boys' Club. Her office was in a different building from the rest of her department. She is not invited to their parties. But she is still teaching -- and popular with students. She is still doing research -- and I find it to be good research. I saw her give a lecture on Alumni Seminar Day, and it was a hell of a good lecture.
Afterwards, I congratulated her. She remembered me by name, from a LONG time ago. She seemed even to know a little about my publications in her field. "Oh, yes," she said. "I google you once in a while."
"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."
"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."
If the objection is that they are unable to be objective because of their conservative values are influencing them then wouldn't we also need to have anyone with positive views of gays also need to recluse themselves. After all if they view gays positively wouldn't that also make them incapable of making an objective decision?
Chad, I generally agree with your thoughts as regards to Hammer's second argument, though I could imagine that direct expressions of bias by some of the voters might change that. But I don't see how Hammer's first argument is all that exceptional or puts the university in any kind of unique bind. Just because the state of Michigan has no protection for gays in state antidiscrimination law doesn't mean that the university may not adopt its own, stronger policy. From the university's webpage:
Given how clearly the university spells this out, I can see why they didn't try to argue that they didn't really mean it: not only would it piss off the faculty, but I would think that the judge would laugh them out of court. This looks like pretty standard stuff: why shouldn't an employee of the University of Michigan be able to rely on this statement, and how might allowing this to be enforced put them into an unusually unpleasant bind?
I agree with #2 that the wording there could have been better. It smacks of, "Why didn't I get tenure?! Don't they know I'm a boy!?!"
Let's see how this might go. "I don't like them blacks, don't like 'em at all. Buncha criminals you know. Stupid too, science proves that, just as a Nobel laureate if you don't believe me. Sure, I moved a couple of times to keep my kids out of those schools with too many black kids, wouldn't you? But c'mon, of course I can be objective about reviewing the scholarship of my black colleague at my university. I mean, we all just set aside personal beliefs when making judgment calls, right?"
Your being "uncomfortable" with "presumption of bias" is either incredibly naive or else disingenuous, Chad.
Shall I outline the miscegenation-bigot version to bring it a little closer to being understandable for you?
kevin: But the quote you provide clearly says he is trying to "document [that conservative ones are] misrepresenting their own views". He's not saying that these faculty are conservative, but that they are lying when they say "oh, it had nothing to do with his being gay". And he's doing that by showing that, on lots of issues, they lie about their own views.
If you want to be precise, he's really accusing them of lying twice. The first lie is that they voted against his tenure for reasons that had nothing to do with their political views. The second is that they're lying about what they say their political views are in the first place.
Of course, the second is pretty much meaningless without the first-- it really wouldn't matter if they were "really" super-extra conservative unless that also meant that they were incapable of setting those views aside, no matter what they say they did. And that's really the part that I object to-- the presumption that because they're members of conservative churches or have taken conservative political positions in the past, they must automatically be lying when they say they considered his scholarship objectively.
Hammer does not appear to be challenging all twelve of the "no" votes-- at least, the article only mentions three professors-- which means he must concede that there are some legitimate reasons why people might vote "no." Why is it ok to assume that those people acted in good faith, but these others must be lying? For that matter, why is it ok to assume that all of the "Yes" votes were carefully and objectively considered?
Look, it sucks that he came up two votes short of getting tenure (if I'm reading this right). But I'm just not comfortable with the idea of this sort of fishing expedition to see why people "really" voted the way they did. At some point, you need to take people at their word that they're acting like civilized human beings, or we sink into a Hobbesian state of nature.
Alex R.: But I don't see how Hammer's first argument is all that exceptional or puts the university in any kind of unique bind. Just because the state of Michigan has no protection for gays in state antidiscrimination law doesn't mean that the university may not adopt its own, stronger policy.
I don't know that it's a unique bind, but it's a different approach than is usually taken in these sorts of cases. Most of the time when you see people suing claiming bias in hiring and promotion decisions, they're citing state and federal anti-discrimination laws as the basis, and not treating the faculty handbook as a contract.
That's why this argument is worthy of mention in IHE, and I think that's why it's an uncomfortable situation for a lot of colleges and universities. I think there are a lot of things in faculty handbooks and university policies that have been put there without being thought of in that way, and have thus not received quite the level of scrutiny that they otherwise might. There are probably a lot of college lawyers taking an uneasy look through the web sites and faculty manuals of their universities now.
Let me also note for the record that if Michigan's law school really decides tenure cases solely on the basis of an up-down faculty vote requiring a two-thirds majority, that might just qualify as the Worst Tenure System EVAR. Particularly if it's not a secret ballot vote.
What an absolutely horrendous system that is.
You are full of crap on this take Chad, you just are. We are not talking about petty differences in academic approaches or minor inter-personal dislikes here. We're talking about a topic of bigotry that has unbelievable motivational valence. The Christers don't like teh gays and they go so far as to leave evidence of this lying about. This means we are talking more than usual garden level discomfort with gays. If there is one bloody thing we know from the study of humans is that we are prisoners of our biases. Our fondness for like over unlike. Our frequently violent rejection of unlike. Our pronounced fondness(see Jimbo Watson, Charles Murray et al) for justifying rationalizations to paper over our gut-level biases. And like it or not, the veneer of approval provided by religious affiliation just encourages bigots in further bigotry.
and WTF is this bullshit rationalization that "gee, he must've had some pro-gays voting for him even though they found him unworthy so it all works out"? Does the phrase "whole-fucking-cloth" mean anything to you? ...or did I miss that part of the counter claim where the University made this defense.
"I think there are a lot of things in faculty handbooks and university policies that have been put there without being thought of in that way, and have thus not received quite the level of scrutiny that they otherwise might. There are probably a lot of college lawyers taking an uneasy look through the web sites and faculty manuals of their universities now."
My sympathy for the colleges who now realize that having a stated policy that "we don't discriminate on the basis of X" might actually mean "we don't discriminate on the basis of X" is mathematically indistinguishable from 0.
I hope this is a sort of professional-until-proven-unprofessional stance. Otherwise it will merely act as a cover for unprofessional behavior.
If all it takes is for someone to assert that they were objective for a complainer's assertions to be thrown out...
This reminds me a story of a one-armed chemist. The fellow with a prosthetic hand got hired because he greatly impressed our VP of research as being an incredible genius. But in the lab he turned out to be extremely bitter and rude to everyone - and a hack to boot, with very bad personal hygiene. The company lawyers told us that we cannot fire him even when he calls lady colleagues "air-heads", smells, never delivers any product and breaks every expensive instrument and apparatus he comes acros and then he covers it up - because he would claim a discrimination based on his disability. After few months of suffering we got rid of the "captain Hook" otensively for the repeated safety violations (which were least of the problem).
This experience caused the company to think twice before employing again anybody with a disability.
I hope this is a sort of professional-until-proven-unprofessional stance. Otherwise it will merely act as a cover for unprofessional behavior.
Absolutely.
If there's proof that someone is behaving unprofessionally, then they lose the privilege of being treated as a civilized adult.
If all it takes is for someone to assert that they were objective for a complainer's assertions to be thrown out...
Sure.
But it takes more to prove unprofessional behavior than "He teaches Sunday school at a conservative church," too.
Again, I'll say: It really sucks that he missed getting tenure by two votes. I'm also entirely willing to believe that unconscious bias may have been responsible for swaying two or more voters, and that sucks too. But this is just not a matter where the law is able to do anything constructive, and this particular legal strategy strikes me as an extremely bad precedent.
I am perfectly willing to believe that faculty members who are biased against groups of people will be negatively influenced by that bias when assessing something as subjective as a tenure decision on a member of that group, without realizing what's happening.
I also think that this is not a matter for the law.
* * *
A note on handbooks:
New York state law already allows for challenges to personnel determinations to review if colleges and universities complied with their own mandatory policies and procedures. This certainly can include handbooks.
New York courts will not enforce policies that are in precatory language, that say "you should do such-and-such."
I see that this suit has been filed in Michigan state courts. I don't know if they have a similar doctrine already in place. This argument in New York would not be ground-breaking just by citing the handbook, however.
Whether the non-discrimination language here would be considered mandatory or precatory, I really don't know.
* * *
In offline conversation, Chad and I were talking about the voting procedure here and whether it's really an open ballot. If so: this is a tenure process like SFWA's Nebula procedures. What a good idea *that* is!
Points taken. But I don't think that's going to stop people using the law in inappropriate but (from their perspective) quite effective ways.
The hobgoblin of "prejudice!" is a very effective way to get people to stop using reason and start reacting emotionally.
The hobgoblin of "prejudice!" is a very effective way to get people to stop using reason and start reacting emotionally.
As is the OMG AM NOT! reaction of people accused of behaving under the influence of prejudice.
"I am perfectly willing to believe that faculty members who are biased against groups of people will be negatively influenced by that bias when assessing something as subjective as a tenure decision on a member of that group, without realizing what's happening.
I also think that this is not a matter for the law."
Why not? How does this differ from any other "subjective" decision making in the workplace regarding someone's career?
And in any case, let's not move the goalposts to "a matter for the law" eh? Chad's original post addresses the professionalism of the academic workplace with respect to his major points on this issue, not the narrow specification of any particular matter of law. Rightfully so since the audience does not appear to be limited to legal scholars.
Chad quoth:
Let me also note for the record that if Michigan's law school really decides tenure cases solely on the basis of an up-down faculty vote requiring a two-thirds majority, that might just qualify as the Worst Tenure System EVAR. Particularly if it's not a secret ballot vote.
What an absolutely horrendous system that is.
Oddly, I just encountered one that is I think equally bizarre, at least to me. A ballot where I'm not sure of the secrecy, but where the different levels of faculty (Asst/Assoc/Full) have **different colours** of ballot paper, yet all votes are putatively equal. Huh?
Two questions here interest me especially, at least for the moment:
1) Were any of the votes cast against tenure, and which Hammer still accepts as valid, also cast by faculty members for whom there is reasonable evidence of anti-homosexual bigotry? (Or in other words, is there evidence that Hammer will accept any vote against him by any biased individual, or does the evidence lead us to believe that Hammer will attempt to overturn any unfavorable vote case by a biased individual?) One answer to this question actually leads to a perverse incentive of stocking your tenure panel with bigots....
2) Did Hammer himself sign any contracts binding him to accept the results of the tenure panel or process? I think-- Kate can obviously answer this-- that this would be not unlike signing yourself into binding contract arbitration, and the university would probably have a case that a personal signed contract takes precedence over a general purpose unsigned contract.
(Note: I do believe companies need to uphold the terms of their own handbooks. I may or may not be legally correct in that, but I believe they ought to be responsible, at least in general.)
Did Hammer himself sign any contracts binding him to accept the results of the tenure panel or process?
Like what? "I promise to abide by the result even if it's reached in a way that violated the rules?" I'm not sure that would be enforcable, even in the unlikely event that he had.
If that sort of thing is not enforceable (other than in cases of clear procedural violation, like arbitrarily including or excluding votes in violation of the procedure) then why are binding arbitration clauses enforceable... pretty much everywhere else?
Or aren't they?
I don't understand what you're saying.
As I understand it, Hammer's argument is that the decision was reached in violation of the University's own rules.
If he signed something separate agreeing to abide by the tenure decision, [*] I think it would be implicit in that contract that he was agreeing to abide by a _valid_ decision, that is, one that's reached in conformity with the rules.
I doubt very much that he would have had the *intent* to sign a contract saying, "go ahead, break your own rules, I won't mind!" And intent, speaking in the very broadest terms possible, is what makes a contract. Hence, not enforceable.
[*] Which strikes me as highly unlikely, as "you and us, we'll abide by rules" is the kind of thing in a general employment contract, so why have a separate one?
In my experience in the corporate world with hiring practices and diversity issues, there's more than a little bit of schizophrenia, which is explicable by he following tension:
On one hand, human resources and the legal department do not want to leave themselves open to lawsuits; on the other hand, the hiring panels and the legal department do not want to tie their hands or dictate outcomes. The result, every place I have worked, are very specific negative policies and procedures about what you can't do (don't ask this, don't mention that, etc) balanced against equally vague positive pronouncements about diversity. The legal department of any large company needs to straddle and balance those two tensions.
So it seems to me, in my naive, non-lawyer way, that if you've got an unsigned broad contract that has specific and vague parts, and you have a signed narrow contract that is very specific that binds the parties to arbitration, that it's going to be the specific parts of the contract that trump the broad ones, and the arbitration is good as long as it clings to the specifics... that's why arbitration is necessary, and why you signed up for it.
Being cynical, I have assumed this is by design.
Now, if Hammer's discovery process is finding e-mail or other documents between faculty members that are talking about both his homosexuality and his tenure shot at the same time, well, that's something else again. Doesn't sound like that's the case from what I've read, but I haven't read through everything. Even if he finds those three professors discussing his own personal homosexuality in negative terms, that's something specific and probably actionable. I'd even go so far to say that if those are the only three professors who have had excessive and documented conversation about his homosexuality, that might be something. But these are all specific links to him. Or even without a link to Hammer specifically, if there are documented cases of any of those professors saying anything even remotely equivalent to the incapacity of homosexuals for serious scholarship, or their determination to prevent any homosexual from gaining tenure. I could, obviously, go on.
Otherwise, by what I've read and by Chad's discussion, the legal argument becomes a sort of a presumption of guilt, or a presumption of procedural violation based not on the actions of the members in the vote (at least, not without substantive documentation) but on the panel members themselves, and their extra-curricular activities. That in turn seems to argue for a sort of a political litmus test for the tenure committee, or a bound on the extra-curricular activities of the tenure committee, which are really powerful and specific results of a guideline that I would bet fifty bucks is worded as vaguely as humanly possible, and would bet far more was never the intent of the guidelines and handbook. (Note: The more specifically those policies are worded, the more wrong I am in this argument.)
Like Chad, I think that while this might lead to a good result in this particular instance, the precedent is an awful and dangerous one, and one that could very well turn and bite where it wasn't intended to. I mean, hell, does this disqualify Chad from making a tenure decision for someone who announces he voted for Bush both times? (Although more realistically, the result is that every university legal department in the United States will re-write their handbooks the day after the decision in order to avoid a repeat, because legal departments aren't stupid.)
(Not to mention, another potential contract I just thought of while writing this: Is it in the contracts of the tenure committee that they are entitled to vote in these things? That'd be a fun countersuit to see raised if those three votes are thrown out. And by fun, I mean debacle.)
John.
Where does arbitration come into this? I see no suggestion anywhere that anything *remotely* similar is at play in this case. And you're seriously baffling me.
Kate, you will recall this started with a question, on my part, not an assertion: Did Hammer sign a piece of paper binding himself to the decision of the tenure committee, and is it binding? If he did, it would seem to me that he did just that-- bound himself to abide by that decision as it navigates itself through all the subjective, non-mechanical issues involved in awarding tenure. Arbitration may or may not be the right legal word for it.
I don't think it's impossible for the college to be in the wrong here-- not at all, and there's lots of ways I can think of for Hammer to be right and the university to be wrong. They generally things that are specific, mechanical, and/or provable. The less specific, the more subjective the matters are, the more that's exactly what the tenure committee is there for.
(But note, if any of the allegations on pages 11-14 of this document can be borne out through testimony or discovery, like an e-mail track, I think that strengthens his case immensely. There are other sections that are also extremely damning, but the ones on those pages show, to me, a strong indication that professionalism and detachment could not be and were not maintained, either in general, or specifically toward Hammer. So really, the point is probably moot-- there's not much mind-reading required on the part of the court. They really should have included some of those howlers in the article itself.
(And as a note to Chad, it seems four votes are being contested, not three.)
And in the last comment I hope to make on this subject, I get that Hammer is claiming that the university violated their own rules. What I don't get from that article is what rule Hammer thinks the university violated, on what concrete evidence. Based on the article, it looks like the line of thought really is, "These people belong to unsavory groups, therefore, a rule has been violated," which... makes me uncomfortable. It's a really broad result to pull out of a court.
In that respect, the article is pretty bad. Maybe they're concentrating on the controversial aspects? But it's unfortunate because seeing someone denied tenure because they're gay also makes me uncomfortable (not to mention angry) and because some of the court documents indicate that there's more to it than the article talks about.
I don't think that article does justice to the situation.
Your link's broken, can you repost?
Since the article says that two attempts to get the case thrown out have failed, I'm going to go out on a very short stout limb and say no, Hammer signed no such paper. Nor can I imagine what motivation he would have for doing so.
What I got from the article was that Hammer thought that the rule against biased treatment based on sexual orientation had been broken.
"does this disqualify Chad from making a tenure decision for someone who announces he voted for Bush both times?"
No. However, if the tenure-seeker graduated from Amherst...
;^)
this is the way that I understand tenure process:
a tenure file gets assembled, including recommendations from outside leaders in the field who recommend promotion or firing. At a closed-door tenured-only-faculty meeting each case is reviewed. to get positive recommendation from department, you need 2/3 "yes" votes of the people present. it is a secret vote. abstentions count as "no's"
that recommendation is non-binding and goes to higher levels for decision.
Sometimes the outside experts give a thumbs-up and the voting faculty ignores the recommendation -- faculty peers don't necessarily understand whether work is groundbreaking or just fringe. As analogy think of a bunch of chevrolet auto mechanics or engineers trying to critique a toyota prius. they just don't have the intimate knowledge to fairly assess strengths and weaknesses.
In academia if you don't understand somebody's work and you think their lifestyle is weird, there is no way you are going to sign on to hang out with them for the next 30 years. It really can boil down to a personality contest. and that is wrong.
How does Hammer stand up to other people in the department who went up at the same time? If a married good-old-boy with a less impressive record got tenure at the same time, then that's a problem. One thing is that if Hammer didn't have lawyer friends, he'd have a real tough time funding this suit. This stuff really happens all the time.