Friday, June 14, 2019

Law Prof's Dismissed Bias Claim Reinstated

The United States Court of Appeals for the District of Columbia Circuit reversed the grant to summary judgment against a law professor who had sued the David A. Clarke School of Law alleging racial bias in his tenure denial.

The story

In 2006, Mawakana,  a black male, was hired by the University of the District of Columbia (“University”) to serve as a law professor at the David A. Clarke School of Law (“Law School”). Pursuant to his initial employment contract, Mawakana was hired as an Assistant Professor for a three-year period. In 2009, Mawakana’s employment contract was renewed and in 2010 he was promoted to Associate Professor. In July 2011, Mawakana applied for tenure. There is no record evidence that Mawakana heard anything about his tenure application during the 2011-2012 academic year. In early fall 2012, he was invited to and attended a meeting of the faculty subcommittee assigned to review his application. At the meeting the subcommittee assured him that his application was in good shape. A short time later, however, Mawakana attended another subcommittee meeting at which the subcommittee informed him that it had some concerns about his scholarship. In November 2012, Mawakana was invited to and attended a meeting with Law School Dean Katherine “Shelley” Broderick (Broderick), and faculty subcommittee chairman, John Brittain. At the meeting they both suggested that he withdraw his tenure application. Mawakana refused. In February 2013, the subcommittee issued its assessment of Mawakana’s tenure application, concluding that his scholarship was not worthy of tenure and recommending that tenure be denied. The full faculty evaluation and tenure committee reviewed and adopted the subcommittee’s report. Broderick then reviewed and endorsed the recommendation of the full faculty evaluation and tenure committee. University Provost Ken Bain subsequently reviewed and adopted the recommendation of the full faculty evaluation and tenure committee and Broderick. Finally, University President James Earl Lyons upheld the recommendation of Provost Bain. On May 1, 2013, Mawakana received notice that he had been denied tenure and that his employment was to terminate effective August 15, 2013.

No summary judgment

A constellation of factors suggests to us that a reasonable jury viewing the evidence in the light most favorable to Mawakana could find that race was a motivating factor in the University’s decision to deny him tenure. First, there is evidence that the University, and specifically Broderick, treated certain criteria differently when assessing the scholarship of black tenure candidates as opposed to white candidates. According to the Law School’s Official Standards and Procedures for Retention and Tenure, the University considers both the number and the quality of a candidate’s published scholarly works an important criterion. But the University treated a co-authored work as inferior in assessing the application of a black candidate, Joint Appendix (JA) 1205, even though it did not do so in assessing the application of a white candidate, JA 1235–78. Likewise, Broderick treated work published in the University’s own law review as inferior in assessing the application of a black candidate, JA 1229, although the University did not so treat a white candidate’s work published in the same law review, JA 826–30. Finally, Broderick dissuaded a black candidate from applying for tenure by telling her that the University would not permit her to rely on legal briefs and memoranda as scholarship, JA 1233–34, notwithstanding the University treated these materials as qualifying scholarship in assessing the application of a white candidate, JA 1235–70.

Second, there is evidence that Broderick, who played an outsized role in the tenure review process, see Mawakana, 315 F. Supp. 3d at 205 (it is “not disputed” that a reasonable jury could believe “the recommendation of a Dean who had been running the law school for more than 15 years carried substantial weight”), disfavored Mawakana’s application. JA 1202. This history is relevant because, although Broderick was not the ultimate decisionmaker, the jury could find that her negative stance on Mawakana’s tenure application was a “proximate cause” of the University’s ultimate decision to deny him tenure...

Third, the evidence adequately supports an inference that Broderick used her influence in a manner generally more supportive of white than black tenure candidates. Broderick supported every white applicant for tenure during her time as Dean. JA 1004. Once, she lobbied so hard for a white applicant to receive tenure that another faculty member testified that she had “made [tenure] happen” for that applicant. JA 1026. On the other hand, Broderick raised concerns about more than half of the black applicants who applied for, or considered applying for, tenure, JA 1025, 1231; 1029; 1152–53; 1233–34, including Mawakana, JA 382, 1021–22, 1027–28, some before the faculty had even reviewed their applications, JA 1021–22, 1025, 1028. And at least one person involved in the tenure review process seems to have believed race played a part in some of the Dean’s decisions whether to support an applicant. Indeed, the chairman of the faculty review committee wrote in an email to another faculty member: “After losing 4 colleagues these past months, all faculty of color, . . . I am not inclined to be pressured by more of [Broderick’s] efforts to clean her house.” JA 1314.

Fourth, two members of the University faculty who were privy to the internal workings of the tenure review process testified that they believed the University had disfavored black professors within that process. JA 1036–38, 1044–45.

Fifth, of the eight white applicants who applied for tenure between the time Broderick became the Dean in 1999 and the time Mawakana filed suit in 2014, each one received tenure. JA 1004. By contrast, of the seven black professors who applied for tenure within that time period, only five received tenure. JA 48–49, 1358–59; JA 400, 1206. Those numbers may not be overly alarming until one considers that one of the five was initially denied tenure—a decision which was reversed only after her Title VII race discrimination claim survived a  motion to dismiss, see Brown, 774 F.3d at 1018; JA 49—and two other black faculty members were dissuaded from applying in the first place because Broderick told them they had no chance of succeeding, JA 1152–53, 1233.

These five factors, taken together and viewed in the light most favorable to Mawakana, raise a plausible inference that race was a motivating factor in the University’s decision to deny Mawakana tenure. At this stage, we give no opinion regarding whether Mawakana was in fact discriminated against based on his race. We simply cannot state that, as a matter of law, he was not discriminated against based on his race.

The opinion is authored by Circuit Judge Henderson joined by Circuit Judges Rogers and (former Georgetown Law Professor) Pillard.

Access to the District Court opinion is linked here. (Mike Frisch)

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