Friday, August 5, 2011
Rick posted earlier this week about the age discrimination suit against Michigan State Law School by Nicholas Spaeth, former Rhodes Scholar, Justice White clerk, and North Dakota Attorney General. The National Law Journal and the ABA's Weekly e-Journal provide more information for us and provide a link to the complaint.
Mr. Spaeth filed EEOC charges against more than 100 law schools that did not interview him at the AALS Faculty Recruitment Conference last fall. Some of those charges are still pending. This is the first action in court that Mr. Spaeth has brought.
As pointed out in the discussion Jeff Lipshaw began at Prawfsblawg, this will likely be a challenging case, although the complaint does a pretty good job at focusing on three comparators--the candidates hired by Michigan State. The complaint alleges that Mr. Spaeth was more qualified than the three in prestige of the law school he went to, his academic achievements, his clerkship, and his practice experience. He also alleged he had more teaching experience with three years as an adjunct and one year as a visitor, whereas the others had fewer years of teaching experience. He further alleges that he had a better scholarly record, alleging that the three hired had not published a traditional law review article before they were selected to interview but that:
He edited the American Indian Law Deskbook and authored numerous other publications. He filed over forty amicus briefs with the United States Supreme Court and argued groundbreaking cases before the United States Supreme Court on three separate occasions. He also delivered a paper at the Kremlin comparing the U.S. and Soviet legal systems; published a major task force study addressing the process of choosing federal judges; wrote a series of internal papers on credit risk, interest rate risk, and the mortgage crisis for the Federal Home Loan Bank System; and published many other articles in newspapers and legal publications.
Mr. Spaeth also made several allegations about what the school should have considered to be important qualifications for the particular subjects it hired for.
I think Mr. Spaeth has a difficult case to make for a number of reasons, mostly tied to the fact that this is an age case rather than a case about a different protected class, but also tied to the peculiarities of faculty hiring. Age cases are especially challenging because the plaintiff has to prove that age, and not just something correlated with age, was the but-for reason for the employer's decision. So if an employer preferred recent graduates, that by itself isn't age discrimination under Hazen Paper Co. v. Biggins, because older people can be recent graduates. Moreover, there are so many non-discriminatory reasons that schools can assert in part because considerations include somewhat fluid assessments of "soft skills" (curricular fit, personality fit with the current faculty, personality fit with current students, likelihood of involvement with local organizations, potential for future scholarship, etc.) that it may be difficult to show pretext. Plus, the sheer numbers of FAR forms plus the limited information on the form itself will create problems for plaintiffs. Most schools only look at those forms to decide who to interview. If the form does not reflect curricular fit, a scholarly record, or something to suggest a high potential for future scholarship, the chances of a candidate getting interviews is very slim, no matter how otherwise impressive their credentials or practice experience.
For what looks like a stronger case, based on my superficial read, see Paul Caron's post on the suit by Donald Dobkin against the University of Iowa for age discrimination under Iowa's Civil Rights Act for disparate treatment and disparate impact. The state trial court in Iowa denied the University's motion for summary judgment just this week.
Most of us don't think of ourselves as employers, but we really are. For the most part, when law schools hire new faculty, they choose based on who we choose. So we need to think about what criteria we use. This lawsuit should be a great motivator for more of us to start talking about what law professors do, what makes a good law professor, what skills we need, and what experiences best predict good future performance. These are certainly discussions going on internally for at least some institutions and they animate the law school scam narrative currently so popular. They also animate the debate over law school job security and reporting standards, and the ever-present US News rankings. The more we can publicly articulate what matters, the less likely we will be (we hope) to engage in what at least may look like discriminatory behavior, and the better we'll be able to stand up to the kind of hostile public scrutiny that we are all experiencing right now.