Anti-Gay Animus in UVA Law Faculty Employment, You Be the Judge

The Employment and Non-Discrimination Act of 2009 (ENDA) would prohibit sexual orientation and gender identity discrimination in the workplace. Testifying in support of ENDA before Congress last month, Yale law professor William Eskridge alleged that the University of Virginia Law School denied him tenure in 1985 because of his sexual orientation. [Text of Testimony]. Brian Leiter (Chicago) has published UVA Law Dean Paul Mahoney's statement which denies the allegations:

He was not actually denied tenure, but was deferred for future consideration, a common procedure at the time. The faculty wished to see the fruits of his promising, but nascent, scholarly interest in legislation before granting tenure. His subsequent scholarship in that area was highly successful and influential, and he would certainly have received tenure at Virginia had he not resigned to accept a lateral offer from Georgetown.

Complete text of the Mahoney statement on Leiter's Law School Reports.

Eskridge has replied to Mahoney statement. Here's two snips

To be sure, Dean Mahoney is in a tough spot. He was not there in 1985, and it can hardly be surprising that he would deny impropriety in a “he said, he ‘emphatically’ said” situation. There is a smoking gun, however, and it is in writing: the committee’s report. The report is filled with factual misrepresentations and fabrications; its few evaluations include the dismissive attitude toward rules and canons of statutory interpretation that refute Dean Mahoney’s view that I “would certainly have received tenure at Virginia” based upon legislation work.

...

Let me close on a note of likely agreement with Dean Mahoney. Setting aside the dispute whether the School of Law was justified in its treatment of my case, we both might agree that the result was lose-lose: Virginia lost a top teacher and capable scholar, and I lost the opportunity to teach as a tenured professor at the school where both of my grandfathers received their law degrees.

Complete text of Eskridge's reply to Mahoney on Above the Law.

The UVA Law Blog has republished a 1986 Virgina Law Weekly story about the incident that confirms that the UVA faculty, upon the recommendation of the Appointments Committee, had voted to recommend a reappointment for either two or three years instead of tenure. From How the Law School Tenure Game is Played:

[Then UVA Law Dean] Merril admits that "There has never been doubt that Professor Eskridge is a very fine teacher," he hinted that the problem in fact lay somewhere else. The Provost tenure policy reads, "In research, there should be evidence of a body of work of sufficient quality and quantity which has produced at least the beginning of a national reputation for significant and creative contributions to the candidates field of research, and there should be evidence of continued growth." "This is a high standard," wrote Merrill. "The tenured faculty were not collectively prepared to conclude that Professor Eskridge yet had reach it, though it will not surprise you that some would have voted to recommend tenure had a decision on this issue been essential yesterday.

[Appointments Committee Chair Stanley] Henderson added that there were "positive and negative things in all three categories, as it is with almost every candidate the principal was scholarship."

However, some students, who asked not to be identified, began to think, as one said, "there's got to be something going on here." They say that Eskrdige's scholarship is substantial and of a high calibre. To explain the decision, they point to the formation of political factions among the professors. Two reasons Eskridge's candidacy failed, they contend, are personality conflicts fueled by contrasting styles and a growing number of vocal Law and Economics professors with whose theories Eskridge sometimes conflicts.

Complete text of the 1986 Virginia Law Weekly story on the UVA Law Blog.

Scholarly productivity that has produced "at least the beginning of a national reputation," faculty political in-fighting, "personality conflicts," you be the judge. [JH]