Allegations of Different Tenure Standards

Appeals court reinstates a long-standing tenure denial case brought by a black law professor against a predominantly black university. A key issue is how much deference colleges deserve on academic matters.

June 17, 2019
 
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Kemit Mawakana

A federal appeals court in Washington last week revived a former law professor’s tenure denial case against his one-time institution, the University of the District of Columbia.

The case itself is unusual in that the professor, who now goes by the name of Kemit Mawakana, is black and is suing a predominantly black institution for race-based discrimination. He also alleges breach of contract.

The recent appellate decision in Mawakana’s favor is also unusual in that courts typically defer to colleges and universities in faculty tenure and promotion decisions. In the decision, the judges specifically say there must be limits to such deference.

In her opinion for the three-judge panel, Judge Karen LeCraft Henderson wrote that 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.”

Among those factors: the university treated a co-authored work as “inferior” in assessing the tenure application of another black candidate, but not a white candidate, according to court documents. One now former, longtime law dean also treated work published in the university’s own law review as inferior in assessing the application of a black candidate but not a white one.

The same dean, who is white, also allegedly dissuaded another black female candidate from applying for tenure by telling her that she couldn’t rely on legal briefs and memoranda as scholarship -- and then allowed that kind of scholarship from another white candidate.

The dean also “disfavored” Mawakana’s tenure application, Henderson wrote, which matters because the jury could find that her negative stance on Mawakana was a “proximate cause” of the university’s ultimate decision to deny him tenure. The dean had shifting views on the quality of Mawakana’s scholarship and service, for example. She also supported white applicants -- all of eight of them -- for tenure during her deanship. (Another professor testified that the dean once lobbied so hard for a white applicant’s tenure that she “made [it] happen” for that applicant.) In contrast, the dean raised concerns about half of black professors applying or considering applying for tenure, sometimes even before the faculty reviewed their bids.

Henderson cited an email from a chairman of the faculty review committee to a colleague, for example, that reads, “losing four colleagues these past months, all faculty of color … I am not inclined to be pressured by more of [the dean’s] efforts to clean her house.”

While all white tenure applicants during the dean’s tenure got it, five of seven black professors did.

“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 [race discrimination] claim survived a motion to dismiss,” Henderson wrote, “and two other black faculty members were dissuaded from applying in the first place because the dean, Katherine 'Shelley' Broderick, told them they had no chance of succeeding.”

As for Mawakana’s breach of contract claim, Henderson said that administrators failed to meet with him during the 2011-12 year to discuss his progress toward tenure, in violation of a possible implied contract stating that such meetings happen annually. Indeed, many institutions operate under the idea that tenure denials should not be a surprise and that professors in jeopardy should be given ample opportunity to improve their records prior to review.

Henderson’s opinion includes a lengthy discussion of the tradition of “academic deference,” or the idea that institutions are best suited to discern the merit of their employees. Ultimately, however, she says that although the First Amendment “grants a university certain freedoms, the freedom to discriminate is not among them.” She underscored the fact that while she and the court don't say discrimination happened, they can't say for sure it didn't.

Mawakana, who formerly went by the name of Samuel Jefferson, began working at the University of the District of Columbia’s David A. Clarke School of Law in 2006. His initial three-year contract was renewed in 2009. He applied for tenure in 2011. According to court documents, there is no record that Mawakana heard anything about his tenure application in 2011-12.

In fall 2012, he was invited to a faculty subcommittee meeting to go over his application and told that he was, in Henderson’s summation, in “good shape.”

Soon after, though, Mawakana attended a second subcommittee meeting and was told that members had concerns about his bid, specifically his scholarship record. Later that fall, Mawakana was invited to and attended a meeting with Broderick and the faculty subcommittee chairman. They both suggested that he withdraw his application, and Mawakana refused. Several months later, Mawakana learned that his tenure was denied. He sued in 2014.

The university moved to dismiss the case. A district court in 2018 held that the university was entitled to summary judgment, citing the heightened deference accorded to academic decisions and the apparent fact that no “reasonable jury” could find that Mawakana was denied tenure because of his race. The district court also held that Mawakana’s contract claims were untimely, and that even if they’d been made within the timely three-year standard, they didn’t hold because they hadn’t caused Mawakana damages.

Mawakana appealed.

Richard Salzman, Mawakana’s lawyer, said he and his client are “very gratified by the decision” and look forward to the case being sent back for trial.

Universities “must be subject to the same standards as any other employers,” Salzman said, and “affording special deference to tenure decisions merely allows academic employers to more easily mask discriminatory employment decisions.”

Salzman said that Mawakana loved teaching but was “forced” to leave the profession as a result of the dismissal.

“We hope to prove that his firing was unlawful and get his career back on track.”

The university did not respond to a request for comment, nor did Broderick, who is no longer dean but is currently on a planned sabbatical.

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