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A sharply divided federal appeals court on Wednesday refused to reconsider a March ruling that revived a lawsuit by a former graduate student against the University of Oregon. And the dissenting judges on the appeals court say that the refusal could endanger academic freedom and leave faculty members vulnerable to litigious graduate students.

The lawsuit charges that the university illegally retaliated against the graduate student after she complained of gender discrimination against female doctoral students in her program. The merits of the case have not been argued, but the full U.S. Court of Appeals for the Ninth Circuit added "for the Ninth Circuit" ... dl refused Wednesday to rehear the March decision by a three-judge panel of the court to keep the lawsuit alive.

The seven dissenting judges of the full appeals court said the three-judge panel’s ruling was dangerous because it set too low a bar in terms of evidence that the plaintiff had to present to prevent a dismissal of the suit. Further, the dissenting judges said that the decision essentially treated the graduate student and her dissertation adviser as any other employee and employer. And the dissenting judges said that this failed to recognize important characteristics of higher education, and graduate school in particular.

In cases where an appeals court declines to hear an appeal, there isn’t necessarily a full statement of the rationale – and the court of appeals majority simply stated a motion to reconsider the panel’s ruling failed to attract a majority of the non-recused judges. The dissent, in contrast, is a full argument about the case.

The case dates to the collapse of Monica Emeldi’s Ph.D. ambitions at Oregon in 2007. Her original dissertation adviser went on a sabbatical and recommended another faculty member to serve in his place. Emeldi then had disagreements with her new adviser, and also complained to the university about the treatment of female graduate students. She was unable to finish her dissertation when her new adviser withdrew from that role, and 15 other faculty members turned down her requests to take his place.

Emeldi’s lawsuit maintains that she lost her chance at completing her dissertation when she couldn’t assemble a committee – and that she was turned down in retaliation for her complaints about the treatment of female graduate students. The university has maintained that faculty members didn’t retaliate and had legitimate disagreements with her about her work. Further, Oregon maintains that there were two faculty members who were willing to serve on a dissertation committee – and had appropriate levels of expertise – who weren’t approached by Emeldi.

The three-judge panel’s ruling in March (which was on a 2-to-1 vote) noted that the university might well win the case in a full trial. The decision said that Emeldi’s theories were based on “ample circumstantial evidence” of causation between her complaints and the subsequent rebuffs she received from faculty members.

But it went on to say that the university had evidence – backed by e-mail trails – to back its version of events. Further, the decision said that some of Emeldi’s statement had been “inconsistent,” and that she had admitted in a deposition that some of her thoughts on the case amounted to her “speculating.” Still, however, the two judges in that majority decision said that there was enough evidence from Emeldi to justify letting a jury decide.

In Wednesday’s dissent, the seven justices who wanted to hear the case said that keeping the lawsuit alive “jeopardizes academic freedom by making it far too easy for students to bring retaliation claims against their professors. Plaintiffs will now cite Emeldi in droves to fight off summary judgment: We may not have any evidence, but it’s enough under Emeldi. Defendants will go straight to trial or their checkbooks — because summary judgment will be out of reach in the Ninth Circuit.”

And the dissent said that the was particularly a problem in the context of graduate education.

“The relationship between professor and Ph.D. student requires both parties to engage in candid, searing analysis of each other and each other’s ideas. Methodology, philosophy and personality often lead to intractable disputes and, when they do, the professor must be free to walk away without fear of a frivolous discrimination suit,” the dissent says.

“[T]he panel overlooks the critical differences between academia and the outside world. It applies the law so loosely that one of the laxest interpretations of the pleading standard is now planted squarely in academia, just where the pleading standard should be highest,” the dissent adds. “If this ill-considered precedent stands, professors will have to think twice before giving honest evaluations of their students for fear that disgruntled students may haul them into court. This is a loss for professors and students and for society, which depends on their creative ferment.”

Ada Meloy, general counsel for the American Council on Education, said via e-mail that "I agree with the dissenters who object to proceeding to trial in this case, and agree that it will be very harmful if such attenuated cases in the graduate school context are forced to go to trial -- or to be settled."

The lawyer representing Emeldi did not respond to requests for comment. Randy Geller, general counsel of the University of Oregon, said via e-mail: "We will evaluate the decision, including the dissent signed by seven Ninth Circuit judges, and determine whether to seek additional appellate review."


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