Who Gets to Decide?
A divided federal appeals court this month upheld the dismissal of a lawsuit against Miami University that charged racial discrimination against a black faculty member in the tenure process.
A key argument in the lawsuit was that a chair showed racial bias by rejecting potential candidates for the external review who were at historically black colleges. But the majority in the case, noting that a majority of those on the external panel were black, rejected that argument and accepted the possibility of other, legitimate reasons for rejecting those candidates.
Marvin Thrash brought the suit after he was rejected for tenure. He had joined the public university in Ohio as an "opportunity hire" after he was a finalist, but not selected, for an open tenure-track position in paper science and engineering. He argued that his record was devalued because of bias against those hired with affirmative action.
During his first few years at Miami, Thrash was evaluated as a high-quality teacher, but one without enough of a research program. He was praised for his research efforts in his last year before the tenure review, and a departmental committee recommended him for tenure. But his chair and subsequent reviewers at the university were negative, based largely on what they said was a lack of a sufficient research program, and he was denied tenure.
Thrash claimed that his chair rejected all of the names he submitted who worked at historically black colleges, and a name submitted by another tenure candidate for an external review, from a historically black college, and that the chair said faculty members at historically black colleges couldn't be considered. The chair denied ever saying that. The 2-1 majority decision by the U.S. Court of Appeals for the Sixth Circuit noted that four of the six final members of the external committee were black.
There is no "issue of material fact" suggesting bias against black reviewers, the decision says, when a majority of those approved by the chair were African Americans.
Further, the decision notes that in the other case where a reviewer from a black college was rejected, the proposed reviewer was Chinese. In addition, the decision notes that the reason given for that rejection was not that the reviewer worked for a black college, but that the reviewer worked for a college that did not have a Ph.D. program.
The majority decision also endorsed the idea that judges should not try to judge the scholarly merit of tenure candidates.
"To the extent that, as here, a plaintiff’s pretext argument would require courts to perform a substantive evaluation of his or her academic record, the courts face a significant challenge. We are neither engineers nor scientists, and as such are ill-suited to evaluate the quality of Dr. Thrash’s work ourselves," the decision says. "To that end, this court has previously noted that tenure decisions in an academic setting involve a combination of factors which tend to set them apart from employment decisions generally. Precisely for this reason, courts tend to hold that, although academic tenure decisions are certainly not ... exempt from judicial scrutiny ... they are generally entitled to more deference than employment decisions in other settings."
The decision was written by Judge Richard Griffin. Judge Karen Nelson Moore wrote the dissent.
She wrote that while the majority decision says that it is staying out of academic disputes, it actually isn't, and is simply taking one side of the argument.
The "majority has made credibility determinations, weighed the evidence, and drawn inferences to conclude that Dr. Marvin Thrash was not discriminated against on account of his race," the dissent says.
As an example, the dissent cites the majority's analysis of the claim about black college reviewers as "troubling," and an argument that should have gone forward to a jury trial.
The dissent says of the rejection of reviewers from black colleges: "Rather than recognize this as evidence of racial bias, the majority again usurps the jury’s role and weighs this evidence, in isolation, against other evidence it views as relevant."