The Case for Reinstatement

A federal appeals court said this week that Southeastern Oklahoma State University must reinstate, with tenure, a former professor of English who says she was denied tenure for being transgender.

A jury previously awarded the professor, Rachel Tudor, more than $1 million in damages. But the court capped that amount at $300,000, plus front-pay wages of some $60,000. The lower court also sided with the university in saying that Tudor should not be reinstated due to hostility between the parties.

Tudor disagreed about reinstatement, arguing in the U.S. Court of Appeals for the 10th Circuit that she wanted to return to Southeastern Oklahoma State. Her lawyers said that litigation-related hostility is not a valid reason to refuse to rehire someone.

The university, meanwhile, appealed the jury’s verdict in favor of Tudor.

In the end, the appeals court mostly agreed with Tudor and her lawyers and with the jury’s determination that Tudor was denied tenure due to sex discrimination.

The decision is unusual in that courts generally shy away from intervening in tenure decisions. And in those rare instances where courts are favorable to professors denied tenure, the professors involved don’t necessarily want to return to the institutions that spurned them.

“A court’s inquiry into whether reinstatement is appropriate after a jury verdict of discrimination and retaliation in plaintiff’s favor therefore does not take place on a level playing field,” Judge David M. Ebel wrote in an opinion on behalf of the three-judge panel. “Instead, courts must start with the strong preference for reinstatement, and then ask if the defendant has overcome this presumption by establishing the existence of extreme hostility between the parties.”

Such an “extreme hostility test” doesn’t require “complete harmony among the plaintiff, the employer and other employees,” Ebel said. “There are plenty of workarounds and solutions making reinstatement possible in cases where some animosity exists, such as a remote office, a new supervisor, or a clear set of workplace guidelines.”

Ebel acknowledged that the current chair of English at Southeastern Oklahoma State said he didn’t think it would be a “good thing” for Tudor to return to the English department and that his colleagues were “split at best” on the issue. But this doesn’t equal extreme hostility, Ebel said, and in higher education, in particular, “teaching and scholarship are inherently fairly insulated from the adverse sentiments of colleagues.” Tenured positions are especially “insulated,” he also said.

Most of the “primary antagonists” in the case have since left the university, and a “large institution” such as Southeastern Oklahoma State “should have sufficient resources to eliminate or otherwise ameliorate any hostility on its side toward the plaintiff,” Ebel wrote. He also noted that the U.S. Justice Department settled with the university regarding a related complaint and that, as a result, trainings and other measures to reduce discrimination such as what Tudor faced were already in place.

The appellate court also ordered the lower court to recalculate Tudor’s front-pay wages.

Through the office of her lawyer, Jillian T. Weiss, Tudor, who is a member of the Chickasaw Nation, said in a statement that she is “looking forward to being the first tenured Native American professor in her department in the 100-plus-year history of the Native-American-serving institution that is Southeastern Oklahoma State.”

As “injurious as the sex discrimination and retaliation” at the university were, Tudor said, she “did not consider it merely personal.” Instead, she said she was “a symbol to those who discriminated against her. They wanted to create an environment where certain views and certain people are punished to create fear and shame instead of self-confidence and opportunity for all.”

Some at the university wanted people like her “to be afraid, and to go away,” Tudor said, but instead of doing that, Tudor said, she “fought for the rights and dignity of her Native and LGBT communities.”

Tudor also thanked “her allies and colleagues for their support through ten long years of fighting for justice” and promised “to repay their trust by being the best professor” she can be.

Thomas Newsom, university president, said in a statement that he’d heard the decision but couldn’t discuss any specifics “due to pending litigation.” Southeastern Oklahoma State “will continue to focus its efforts on educating students as the legal system moves forward,” he said.

Sunu P. Chandy, legal director of the National Women’s Law Center, which was involved in Tudor’s case, said that “denying professors tenure because they are transgender is sex discrimination,” and that those who win their related civil rights cases “must be permitted their jobs back if desired, and appropriate monetary damages.”

Tudor started on the tenure track at Southeastern Oklahoma State in 2004, when she was still presenting as male. Three years later, she told the human resources office that she planned to transition over the summer, and she returned to campus in 2007 as a woman. In 2008, Tudor applied for tenure with a faculty committee and was rejected. A year later, she applied again. This time, the faculty committee approved her portfolio, which included two articles accepted for publication in peer-reviewed journals, a poetry book, a regional conference presentation and service on multiple campus committees. The vote was 4 to 1. Tudor’s department chair approved her bid as well. But Tudor’s dean, the vice president and the president all recommended against tenure. During the process, the dean met with Tudor and said that if she pulled her bid, she could apply again in the future. Tudor did not agree.

Tudor did not initially get a reason for the denial, according to court documents. After she filed an appeal with another faculty committee, then president Larry Minks said that Tudor showed deficiencies in scholarship and service. In addition to the faculty appellate committee, Tudor filed complaints with the university and the U.S. Education Department, which referred to case to the federal Equal Employment Opportunity Commission.

Around the same time, in 2010, Tudor tried to reapply for tenure, updating her portfolio to include more recent work. The university denied her request to try again. Tudor argued that the university had no official policy preventing her from applying once more, especially in her seventh and final year on the tenure track. The faculty appellate committee sided with her. But Minks would not permit Tudor to apply again, even after the Faculty Senate asked him to reconsider.

Tudor left the university in 2011. She taught at Collin College in Texas for four years after that, but her contract was not renewed. According to court documents, Collin said that Tudor had negative teaching evaluations.

Tudor and one of her former Southeastern Oklahoma State colleagues later testified that they’d never heard of the university denying tenure to someone approved by the faculty committee. One faculty member who sat on Tudor’s appeals committee multiple times said that Tudor’s tenure case seemed to get held up, again and again, by the then vice president, Douglas McMillan.

Tudor alleged that she was warned by multiple staff members on campus that McMillan was hostile to transgender people due to his religious beliefs. In one instance, she said, a human resources staff member called her to warn her that McMillan had called that office to ask if Tudor could be fired outright for her “transgender lifestyle.” Tudor also said human resources officials counseled her upon her transition not to wear short skirts and to only use a single-stall, gender-neutral bathroom that was on another floor of her office building, as to avoid the women’s restroom.

McMillan has since left the university and denied comment on the case.

Cathy Renna, spokesperson for the National LGBTQ Task Force, which also advocated for Tudor throughout her case, said that workplace discrimination, both in and outside academe, remains a “tremendous issue” for the LGBTQ community and “particularly challenging” for transgender people. Tudor’s Native American identity adds another layer of marginalization, she also said.

Referring to the alleged comments at Southeastern Oklahoma State about Tudor’s “lifestyle,” Renna said, “It’s not like she can be trans on Monday, Native American on Tuesday. She was clearly being targeted and discriminated against.”

Renna added, “The reality is that we need to really look at how folks who are seen as other are treated.”