The unholy convergence of unaccountable tenure decisions; the up-or-out nature of tenure; anti-discrimination clauses; and adventuresome lawyers has given birth to this.
As the IHE story tells it, Peter Hammer was denied tenure at the University of Michigan. (As in most tenure systems, denial of tenure meant loss of job. He is now working at Wayne State University.) Hammer is gay, and Michigan law does not prevent discrimination based on sexual orientation. However, the University (eventually) decided that discrimination based on sexual orientation is against its own policies.
Hammer is charging the university with violating its own policies by denying him tenure based on his homosexuality. The university is saying that the tenure decision was based on Hammer's merits.
Here's the good part.
Apparently, Hammer and his attorney have taken to examining the published records of each of the faculty who voted against him, looking for evidence of anti-gay bias. They have also questioned the professors on a number of social issues, such as abortion, probing for evidence of conservatism. Hammer is quoted in the IHE story as saying:
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. (emphasis added)
So they're looking at membership in churches that take anti-gay positions, membership in organizations with conservative agendas, and so forth.
I'll admit, this is impressive. Alert readers know my position on tenure, but even I couldn't have come up with something this good. Wow.
Tenure at the U of M, as in most places, is apparently decided by a whole bunch of people, and therefore by no one person. In this case, the vote was 18 to 12 for him, but he needed two-thirds to win. Dollars to donuts, if he had won by 21 to 9, the individual views of the 9 would not have come into question. Which means, I guess, that you're allowed to be hateful, as long as you're relatively isolated. Bias, apparently, is only an issue when it reaches critical mass.
I don't know Hammer or his work. Whether he deserved tenure or not, I don't know. But the issues raised by this case are mind-boggling. It would be easy to pick up the flag of one side (“homophobia is real and despicable”) or the other (“now we have thought police?”), but that would miss the point. Both sides are right. The nature of the tenure system drives this conflict. That's the real story.
Discrimination law is based on an epistemological mistake. As soon as the plaintiff can prove membership in a protected class (in this case, nobody disputes his claim of being gay), and can show some sort of harm (in this case, denial of tenure), the burden of proof shifts to the defense to prove that animus toward the protected class was not the basis for the decision. (Technically, they have to give a reason other than protected class membership for the decision, and prove that the reason is not a pretext.) There is no presumption of innocence; the defense actually has to prove a negative.
How, exactly, do you do that?
Ideally, you have 'bright line' rules and processes that don't lend themselves to subjective decisionmaking. (“Nobody gets tenure without a Ph.D.”) But if that sufficed, we wouldn't need tenure committees. The whole point of calls for openness and transparency is that subjective judgment is an inescapable necessity. (If that weren't the case, we'd never see votes of 18 to 12. They'd all be 30 to 0, or very close to it.)
In corporate settings, each hiring (or firing) decision is credited to or blamed on a single person (the "hiring manager"). If I fire Bob, and Bob takes issue with it, I'm accountable. It's true that you sometimes see class actions against entire companies based on broad patterns of bias, but each individual decision was made by a single person. (Companywide layoffs are another issue, since they aren't about individual merit.) Individual tenure cases, by contrast, are made by committees. In fact, they're often made by multiple committees, each with varying expectations of deference from the others.
So in a tenure case, an entire committee – or at least a plurality of sufficient size to win – has to be able to show that it wasn't motivated by the wrong ideas. And someone challenging that committee's decision would be well-advised, in a very short term sense, in trying to find proof otherwise. You would do that exactly the way that Hammer and his attorney are: dig through the paper trail, look for smoking guns or suspicious clues, and even infer individual views from group membership. For example, the Catholic church is opposed to the death penalty, so surely no Catholics support the death penalty, right? And given the Catholic church's position on homosexuality, surely having too many Catholics on the committee would amount to institutionalized homophobia, right?
(Idea for fledgling administrators out there: convert to Unitarianism. If membership in a Catholic church establishes a presumption of, say, homophobia, then obviously membership in a Unitarian congregation would establish a presumption of openness to diversity. Unitarian Universalism: A Great Career Move! But wait...there's not supposed to be a religious test for public employment. So you can be held liable for having employees in the wrong churches, but you can't hire for the 'right' ones. The mind reels.)
Compounding matters is the up-or-out nature of tenure. There's no middle ground in a tenure case. You either get your job for life, or you hit the bricks. Up or out. So a divided committee still has to reach an all-or-nothing decision, and the results of that decision are assumed to be permanent.
I simply don't know how you combine 'proving purity of motive' with 'committees of thirty.' Proving a negative for a single person is dicey enough; proving it for thirty people is simply impossible. And while it would be easy to caricature Hammer as the PC police, he's only doing what the incentives of the tenure system make it rational for him to do. He's guilty only of playing the game well.
The game is the problem.
Unaccountable power will be abused. Committees defeat accountability. Do the math.
Expect to see more cases like this. Personally, I prefer the presumption of innocence to a need to “get inside somebody's mind.” And I prefer accountable decisionmakers making decisions with expiration dates. The tenure-committee-as-star-chamber model is as outmoded as tenure itself.
Or we can stick with an unsustainable tradition, and paper over the reality gap with ad hominem attacks ("homophobe!" "thought police!") on those who fall into the gap anyway.