Tracking Bias or Guilt by Association?

If a professor is a member of a church that holds anti-gay views, and isn't forthright about those views, does that make the professor's vote against the tenure bid of a gay professor suspect?

That is one of the questions explored in an unusual lawsuit against the University of Michigan -- filed nearly three years ago but thus far bogged down in preliminary motions. State courts have twice rejected requests by Michigan to have the case dismissed and a third request was scheduled to be heard this week, but postponed. The professor, Peter Hammer, won a majority of votes of the faculty of the law school in his case. But the 18-12 margin was two shy of the two-thirds requirement to win tenure, so he lost his job, and now is a professor of law at Wayne State University. He says he was the first male faculty member rejected by the faculty for tenure in 40 years.

Like lots of tenure disputes, this one has many facets -- debates on Hammer's scholarship, disputes on deadlines and technical parts of the tenure and grievance process at Michigan. And as is the case with many tenure lawsuits, the university says that it and its employees cannot respond to specific questions about the case. The university does, however, say that the quality of Hammer's scholarship cost him his tenure bid, not his sexual orientation, and the university's briefs cite critics of his scholarship, just as supporters of the tenure bid cited praise. (Many documents about the case are available on a Web site maintained by the gay organization of the Wayne State law school, the OUTlaws.)

Some parts of the tenure suit -- however it is eventually resolved -- have raised new legal theories with potential ramification beyond Hammer and Michigan. To Hammer, these factors point to the vulnerability of gay faculty members to bias and the need for more protections and more legal approaches to fight discrimination. But some experts on tenure and higher education are worried that these arguments -- whatever the veracity of Hammer's claims -- pose dangers to the tenure process.

Hammer's suit is based on contract law, not discrimination law; there are no federal or Michigan laws barring discrimination on the basis of sexual orientation on which he could sue. His suit is based on the idea that he was assured when accepting the job at Michigan (and turning down other offers) of the university's commitment to equity for gay employees, as outlined in the faculty handbook and various university policies. Hammer's legal specialties are health policy and Southeast Asia, especially Cambodia. So while he was out to colleagues, his teaching and scholarship did not focus on gay issues.

One part of Michigan's defense that Hammer said raises questions about the university's commitment to equity (and that the university has withdrawn) was to argue that the statements in university policies barring bias against gay people couldn't be enforced in court. When Hammer and his lawyers saw that argument, Hammer approached the gay faculty group at Michigan and said he showed them that under this legal theory of the university's, gay employees had no real rights against bias.

R. Van Harrison, a professor of medical education at Michigan and coordinator of the University of Michigan LGBT Faculty Alliance, confirmed that after Hammer told the group about the legal argument being made, gay faculty members had meetings with senior administrators at Michigan, who then agreed to withdraw that stance.

An argument made by Hammer is also attracting attention. He examined the records and backgrounds of some of the faculty members who voted against him. In several cases (enough to affect the outcome of the vote), he argues that the professors' comments or writings or affiliations raise questions about their fairness -- especially because in the discovery process he maintains that they were not forthright about their beliefs. For example, one professor is a member of a church that will not admit gay people unless they promise to "reform their ways," according to court documents. Yet the professor, according to depositions and statements provided by Hammer's lawyer, denied knowing his church's views on gay people, even though they are identifiable from links on the church's Web site, and the professor teaches Sunday school there. In another case, a professor's opposition to same-sex marriage is cited. Another faculty member wrote of gay people as a "pariah group."

In discovery, Hammer's lawyers asked these and other professors questions about hot-button social issues (not only on gay rights, but abortion in some cases) to document what Hammer considers to be a pattern of people with conservative social values misrepresenting their own views. (In all of these cases, the professors have said that they voted against Hammer because they didn't think his scholarship rose to the necessary level of excellence and not because Hammer is gay, and the university backs these professors.)

"We were trying to triangulate the extent to which these beliefs or biases affect these decisions," Hammer said. "You've got a pattern of people obscuring and denying their beliefs on these issues, and that creates an incredibly negative inference." He added that the question for these professors is: "How can we trust you when we say the vote is all about scholarship?"

Asked if his suit would unfairly assume anyone with conservative social values would be biased against him, Hammer said that was not the case. He said that what makes the professors' stances questionable is denying that they hold views that they hold. "This isn't about trying to have an ideological test about who should vote," he said. "It's about honesty. It's about lying about these deeply held beliefs as the discrimination claim is being litigated."

Hammer acknowledged that his approach to the case is a new method for fighting bias. But he noted that faculty members these days are not going to say publicly in a tenure vote that they are voting for or against someone based on sexual orientation (or gender or race, for that matter). "The theory of the case is that you are dealing with this very strong combination of religion and family values. You've got to get inside somebody's mind and present it in a way that can be objectively verified. You are looking for something that is so often invisible and shrouded in secrecy."

Several experts on tenure and higher education law said that the arguments Hammer was making were both interesting and potentially troubling.

Steve Sanders is a Chicago lawyer who has done work on sexual orientation law and defended domestic partner benefits plans. (He's also a Michigan law alumnus, although he hasn't been involved in the case or studied it in detail.) He said that there is "a fascinating issue here" in that Hammer is trying to get at the individual motives of professors in a new way. "The question is how can an employer give a meaningful pledge of non-discrimination when the employment decision is based on 30 independent actors, each of whom is human."

At the same time, however, Sanders said he was bothered by the way assumptions were being made about professors. "As a civil libertarian, I'd be troubled by the implication that because someone belongs to a particular church, they are of necessity unable to make a professional judgment on someone who is gay," he said. "This is Mitt Romney's problem: Do we impute all the beliefs of every church to every member?"

Jonathan Knight, who leads investigations of tenure and academic freedom cases for the American Association of University Professors, said he had never heard of a case like Hammer's. He predicted that Hammer would have a tough time and worried about the implications of the arguments being made. "In theory, there is no reason to believe that a person holding a particular personal view is incapable of making a judgment on the merits of appointment or tenure," he said. "The very tough proposition here is how does one establish a nexus or plausible relationship between what an individual practices in his personal life or scholarship, and the judgment of the scholarship for the tenure candidate, especially if there is no smoking gun in the sense of commentary to suggest a bias toward a particular approach to scholarship."

Knight added that "if an attitude toward a group, a movement, an idea is throught to disqualify one about a person's candidacy, then the door is flown wide open to introducing political or extraneous factors in [removing people from reviews for] hiring or tenure decisions." A plaintiff like Hammer "needs to show a connection" or an involvement that clearly would have the impact of "tainting the decision."

For his part, Hammer said he realized he was raising "sensitive issues," but he said that one reason for that is that tenure is such a secretive process. "I teach my students that the hallmarks of well-functioning institutions are transparency, accountability and legitimacy," he said, adding that if tenure reviews were more open and public, he and others might not need to question motives or beliefs. "In this setting it hard to take at face value that you should just 'trust us' to do the right thing," he said. "In this environment it is probably necessary to push harder and further than in healthy systems with better practices."

Hammer also said that while people are surprised that views or memberships, as they related to gay people, are being challenged, it was worth considering other forms of discrimination. "Would it be relevant if a faculty member belonged to a country club that excluded women or African Americans? Would it be relevant if one was a member of the KKK? Would it matter if they wrote that blacks or women were genetically or intellectually inferior?"