By Karl Stampfl, Editor in Chief on 1/14/08
The University has gotten pretty good at trumpeting its commitment to diversity and equality. Those words sound nice in the kind of brochures that have photographs of students studying in blankets of leaves on the Diag. When a former University Law School professor, though, went toe-to-toe with the University in court he found out that those words don’t always mean that much.
Here’s the back story: Peter Hammer was denied tenure at the University Law School by an 18-12 vote in February of 2002. Hammer, now a full professor at Wayne State University, claims it was because he’s openly gay.
Discrimination suits are slippery. This one has stretched for three years, and it’s cost the University hundreds of thousands of dollars.
I’m no legal expert, and perhaps Hammer simply wasn’t qualified for tenure at such a prestigious law school. The evidence I’ve seen isn’t overwhelming, to say the least. Maybe there was no bias, no discrimination and no grounds for a lawsuit. Even probably. But pay attention because here’s what’s revealing about this case.
According to court documents, the University has tried to have the case thrown out of court three times. The most recent was in mid-December, but the decision was delayed until later this month. The first two times, the University’s argument wasn’t merely that Hammer had been denied tenure because of some scholarly inferiority, which might be legitimate. The University also argued that its own non-discrimination policies – including the one in the Faculty Handbook for Instructional and Primary Staff that states the University “is committed to a policy of nondiscrimination and equal opportunity for all persons” – are not enforceable in court.
In other words, non-discrimination is a suggestion, not a rule. It’s a guideline, not something that can truly protect you. It’s something we strive for, but if it doesn’t happen, you’re on your own. There are no state or federal laws prohibiting discrimination against gay people. The only legal protection they have, therefore, is the University’s own policies.
Here’s an exchange between the University’s lawyer, Richard Seryak, and the judge from a transcript of a hearing about the request to throw the case out of court:
JUDGE: So in other words, if you tell me that you’re not going to discriminate, I can’t really rely on that …
SERYAK: That’s correct, judge. It’s not a basis for contract –
JUDGE: It’s a scam to get me to come work for you?
SERYAK: Judge, when we say that this is not a contract and we say that it can be modified, that’s an awfully general statement. And I submit to Your Honor that is not the basis for a contract, a damage contract. It says it’s a commitment. That’s our intent. But that doesn’t –
JUDGE: So we can just disregard it at our whim? When we put there in writing, right there, that the University is committed to a policy of non-discrimination, equality opportunity for all persons regardless of race, sex, color, religion, creed, national origin or ancestry, age, marital status, sexual orientation, we’re just kidding? We don’t really mean that?
The University appears to have abandoned that strategy. What’s not clear is why it took years to come to that conclusion. Gloria Hage, the University’s interim general counsel, said she could not comment directly on the legal strategy but that the University’s policies are “not just words on paper.” There are many internal ways to enforce them, she said.
Hammer tried to have his allegations addressed internally, but the Law School argued that its policies prohibited grievances relating to tenure. Paul Courant, then the provost, upheld the decision. Without an internal option, Hammer went to a third party, the courts. There too he found resistance to a fair determination of whether he had been discriminated against.
It’s worrisome that the next time a claim like Hammer’s comes up – when the costs of losing or continuing the case are higher – the University will perhaps choose again to attempt to take the slimy way out.
How come it seems like the University talks a good game when it comes to diversity, but too often when it’s time to prove it – wheelchair accessibility in Michigan Stadium, for instance, or the bold assertions by President Mary Sue Coleman on the Diag the day after Proposal 2 passed that haven’t met their fulfillment – there are complications?
Karl Stampfl is the Daily’s editor in chief. He can be reached at kstampfl@umich.edu
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