Against "Academic Deference": How Recent Developments in Employment Discrimination Law Undercut an Already Dubious Doctrine

Abstract

When the defendant in an employment case is a college or other institution of higher education, the plaintiff usually will face an argument. Citing the importance of their freedom, defendants and sympathetic courts have asserted that courts should decline to invade higher education with federal court supervision. Whether or not courts cite the doctrine expressly, they certainly have proven hostile to professors' claims of discrimination, dismissing as a matter of law claims that seemed quite strong, or at least solid enough to allow a factfinder to rule either way. Indeed, empirical evidence shows that faculty plaintiffs rarely prevail in civil rights cases. The bulk of the precedents are gender discrimination cases, which illustrates the extent to which the doctrine has been a significant barrier to the use of Title VII to redress the gender segregation that has proven so persistent in academia and various professions. This Article argues that courts should reject the entire idea of a special deference to employment decisions challenged as discriminatory. The legislative history shows that Congress did not intend any special deference for academia, and there is no need for it, because courts can and do look for discrimination in other similar fields of employment. In many ways, there is less justification for deferring to academic than other employers, both for policy reasons (because of the importance of diversity in education) and doctrinal reasons (because of academic employers' tendency to defend denials of tenure with little evidence other than self-interested testimony as to entirely subjective reasons). Courts' frequent refusals to scrutinize academic employment decisions for discrimination risks leaving continued gender segregation and inequality in a large and important sector of both the labor market and our educational system. This risk of unredressed inequities is particularly troubling because academia is the sort of labor market in which social norms are unlikely to be effective at preventing discrimination. Social norms can be powerful protectors of fairness in other contexts, sometimes obviating the need for formal, legal protections. Yet academia has many characteristics making it the sort of labor markets in which social norms are likely to be weaker, unable to prevent misdeeds such as discriminatory employment decisions. While the doctrine has drawn criticism for quite some time, this Article adds an additional voice to the chorus by analyzing various unrelated strands of employment discrimination case law, mostly of recent vintage, that severely undercut the doctrine as a basis for granting employers summary judgment or judgment as a matter of law (JMOL) - the procedural devices that doom most academic plaintiffs' claims. Specifically, courts have stressed that, under the leading recent Supreme Court precedent on proof of employment discrimination, summary judgment and JMOL are inappropriate where employers' defenses are vague and subjective or where employers' defenses rely too heavily on the testimony of interested parties. Thus, even if the notion of academic deference once had merit, it is in increasing tension with other, more firmly grounded employment discrimination principles. This Article also argues that even to the extent that courts accept the doctrine of academic deference, the rationale for such deference is limited to the context of promotion-to-tenure. Accordingly, courts applying the doctrine to failure-to-hire cases are applying precedent sloppily, extending a doctrine beyond its original rationale. In short, the penchant of many courts to dismiss employment discrimination claims based on is misguided in a host of ways. It threatens to leave academia an island of civil rights lawlessness, essentially exempt from Title VII - a dangerous outcome for a society in which there is such gender inequity in academia and such a consensus that equal educational opportunity is the path to social progress and personal success.