Fired Black Law Professor May Sue D.C. Law School (1)

June 14, 2019, 5:55 PM; Updated: June 14, 2019, 7:52 PM

University of the District of Columbia trustees must face race bias and breach-of-contract claims by a black law professor who was denied tenure and fired. A federal appeals court found that academic institutions shouldn’t receive special treatment under anti-discrimination laws.

The university said it denied Kemit Mawakana tenure because his scholarship was deficient, and a federal trial court granted judgment for the board of trustees.

But a jury could find race was a motivating factor in the university’s decision to deny him tenure, the U.S. Court of Appeals for the District of Columbia Circuit said June 14.

Tenure decisions don’t receive “special deference” from courts under Title VII of the Civil Rights Act of 1964 just because they’re complicated, “multi-factored judgments,” the court said. Employers who aren’t academic institutions face similarly complex employment decisions, making the burden “no more difficult to meet because the employer is a university.”

“This decision, at the simplest level, says universities should be treated the same as other employers,” Villanova University Charles Widger School of Law professor Ann Juliano said in an email.

It might also remove one obstacle professors face when challenging tenure decisions in court, Juliano said.

Professors bringing claims involving discriminatory tenure decisions have a better chance of their cases moving past summary judgment if universities are treated the same as non-academic institution employers, University of California Berkeley Law School professor Andrew Bradt said. This could potentially put them in a better position because universities will be pressured into settling claims, he said.

Neither the lawyers representing the parties nor the University of the District of Columbia responded to requests for a comment.

Evidence of Bias

There is evidence that the university, and specifically the law school dean, who played an outsized role in tenure review process, treated certain criteria differently when assessing the scholarship of black and white candidates, the court said.

For example, the university treated a co-authored work, and work published in the university’s own law review, as inferior to other work in assessing the application of a black candidate, but not in assessing a white candidate’s application, the court said.

Additionally, two faculty members who were privy to the internal workings of the tenure review process testified that they believed the university had disfavored black professors, it said.

Mawakana may pursue his claims under Title VII and the District of Columbia Human Rights Act, the court said.

The court also reinstated Mawakana’s claims that the university breached a contract in which it had agreed to timely notify him of concerns regarding his scholarship so he could address them before the formal review.

Judge Karen L. Henderson wrote the opinion, joined by Judges Judith W. Rogers and Cornelia Pillard.

Heller, Huron, Chertkof & Salzman PLLC represented Mawakana. Wilson Elser Moskowitz Edelman & Dicker LLP represented the Board of Trustees of the University of the District of Columbia.

The case is Mawakana v. Bd. of Trustees of the Univ. of District of Columbia, 2019 BL 219392, D.C. Cir., No. 18-7059, 6/14/19.

(Updated with additional reporting.)

To contact the reporters on this story: Julie Steinberg in Washington at jsteinberg@bloomberglaw.com; Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Molly Ward at mward@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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