Sunday, August 23, 2009
Jeff Lipshaw (Suffolk) of the Legal Profession Blog has some thought-provoking insights on a recent age discrimination lawsuit brought against the University of Iowa Law School by an unsuccessful older applicant for an immigrant law professor position:
Here's how Usha [Rodrigues of Georgia Law and the Conglomerate Blog] poses the question: "was [Donald] Dobkin clearly 'more qualified' than the 2 other prospectives offered the job, given academic hiring as we know it?" With all due respect to Usha, while I share her sympathy for Iowa, I'm not sure that's the right question. I think she's highlighted the wrong thing, namely, a focus on the quantitative (publications divided by years). Moreover, the question does the same thing Dobkin's case seems to do, which is to conflate the age issue with the "experience" issue. Is his claim that he was the victim of age discrimination, or is he asking the court to impose on the school a hiring policy based on experience over scholarly bona fides? The simple answer to Usha's question is that unless a court is prepared to undertake the latter, there were all sorts of reasons that Iowa could have reasonably passed on Mr. Dobkin without having considered his age.
Without getting all Thomas Kuhn-ish here, Usha's proviso "given academic hiring as we know it" is another way of acknowledging that academic law isn't just about training new lawyers. It is an academic paradigm that, for better or worse (actually, in my experience of several years now, better AND worse), is determined largely by them who is already in the paradigm. It's just a fact of the academic world. I have a book proposal in at a major university press that has passed every hurdle except a late request by the philosophy overseer that it be sent out for a pure philosophy review. It's possible I don't write (or think) in the au courant philosophy paradigm, and I will be wrongly rejected. But that doesn't give rise to a legal claim. As I said to my editor, que sera, sera.
Regardless of where you come out on this debate, take a look at the comments to this post where Jeff engages a thoughtful commentator on whether this suit has a chance of being successful. FWIW, I tend to agree with Jeff's analysis, but also have had practical experiences where so-called slam-dunk discrimination cases have turned into anything but once discovery starts.