Amicus Curiae Brief — Rutgers v. Bennun

No. 91-819

IN THE

Siprene Court of the Wuited States

OCTOBER TERM, 1991

RUTGERS, THE STATE UNIVERSITY; BOARD OF

GOVERNORS OF RUTGERS, THE STATE UNIVERSITY;

and Dr. EDWARD J. BLOUSTEIN,

: Petitioners,

Dr. ALFRED BENNUN,

ee = Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

MOTION FOR LEAVE TO FILE BRIEF AS

AMICI CURIAE AND BRIEF OF AMICI CURIAE

AMERICAN COUNCIL ON EDUCATION, NEW YORK

UNIVERSITY, THE REGENTS OF THE UNIVERSITY

OF CALIFORNIA, THE TRUSTEES OF PRINCETON

UNIVERSITY, THE UNIVERSITY OF MICHIGAN,

AND THE UNIVERSITY OF PENNSYLVANIA

IN SUPPORT OF PETITIONERS

REX E. LEE *

CARTER G. PHILLIPS

SIDLEY & AUSTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 736-8000

Counsel for Amici Curiae

December 19, 1991 * Counsel of Record

WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-819

RUTGERS, THE STATE UNIVERSITY; BOARD OF

GOVERNORS OF RUTGERS, THE STATE UNIVERSITY ;

and Dr. EDWARD J. BLOUSTEIN,

- Petitioners,

Dr. ALFRED BENNUN,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

MOTION OF THE AMERICAN COUNCIL ON

EDUCATION, NEW YORK UNIVERSITY,

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,

THE TRUSTEES OF PRINCETON UNIVERSITY,

THE UNIVERSITY OF MICHIGAN, AND

THE UNIVERSITY OF PENNSYLVANIA

FOR LEAVE TO FILE BRIEF AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

The Americar Council on Education, New York Uni-

versity, the Regents of the University of California, the

Trustees of Princeton University, the University of Mich-

igan, and the University of Pennsylvania hereby move

pursuant to Rule 37.2 of the Rules of this Court for leave

to file the accompanying brief as amici curiae in support

of petitioners. Petitioners’ counsel have consented to the

filing of this brief and consent of respondent’s counsel

has been requested but was denied.

New York University, Princeton University, the Uni-

versity of California, the University of Michigan, and

the University of Pennsylvania (“the Universities’) are

private and public universities regularly engaged in the

process of making decisions concerning tenure and aca-

demic promotion. In making these decisions, the Univer-

sities rely upon the mechanism of peer review, which

aptly has been described “as essential to the very life-

blood and heartbeat of academic excellence.” EEOC Vv.

University of Notre Dame du Lac, 715 F.2d 331, 336

(7th Cir. 1983). The American Council on Education

is a voluntary membership organization representing

more than half of all American colleges and universities.

The intersts of all movants as amici are more fully de-

scribed in the accompanying brief (pp. 1-2).

The movants seek to raise important matters not fully

addressed by the parties concerning the potential threat

to the peer review system of faculty evaluation presented

by an overreaching application of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq., in the

academic employment context. Movants believe that their

broader perspective on the issue presented by petitioners

will assist the Court in evaluating the national importance

of the decision below.

For these reasons, the movants request leave to file

this brief as amici curiae in support of the petition for a

writ of certiorari.

Respectfully submitted,

REX E. LEE *

CARTER G. PHILLIPS

SIDLEY & AUSTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 736-8000

Counsel for Amici Curiae

* Counsel of Record

TABLE OF CONTENTS

Page

eo SB aw gy | 1 gy | ii

INTEREST OF AMICI CURIAE ............................ 1

i A 2

SE pi aege 4

I. BACKGROUND: ACADEMIC FREEDOM

AND THE APPLICATION OF TITLE VII ...... 4

Il. THERE IS A CONFLICT IN THE CIRCUITS

OVER THE JUDICIARY’S PROPER ROLE

IN REVIEWING UNIVERSITY EMPLOY-

sR a a a 9

a aiincthieencensoendircenechakicteneiosnbatnieiensis 19

ii

: TABLE OF AUTHORITIES

CASES Page

Alvarado v. Board of Trustees, 928 F.2d 118 (4th

Se, | Rai LU EO LESS Na 10

Bennun Vv. Rutgers State Univ., 941 F.2d 154 (3d

I I aie a ee 3, 4, 14, 15, 16

Bennun Vv. Rutgers, 737 F. Supp. 1393 (D.N.J.

1990), aff’d in relevant part, 941 F.2d 154 (3d

CRRA ERED creas oe eA Ee 3, 4, 16

Brown Vv. Trustees of Boston Univ., 891 F.2d 337

(1st Cir. 1989), cert. denied, 110 S. Ct. 3217

(Na REIT a aceite SE PREC IS 9, 14,17

Furnco Constr. Corp. Vv. Waters, 438 U.S. 567

ESTE tea a a ron dre eA ENE PS Pe ON 5

Jepsen Y. Florida Bd. of Regents, 610 F.2d 1379

I MII oi cinilis c silsadctslasusnaidesinssictaieabaneien silat 5,14

Keyishian v. Board of Regents, 385 U.S. 589

SAAR Veena cc Oe eee ee CORED re 7

Kunda vy. Muhlenberg College, 621 F.2d 532 (3d

BN ee nol 5, 14, 15, 17

Lieberman Vv. Gant, 630 F.2d 60 (2d Cir. 1980).... 5, 11,

12, 14, 16

Lindahl vy. Air France, 930 F.2d 1434 (9th Cir.

| Eee AERP a ES PND Necks a ach AO 10

McDonnell Douglas Corp. Vv. Green, 411 U.S. 792

REIT eee ke S Ene oe Pera Soe 3,5

NLRB Vv. Yeshiva Univ., 444 U.S. 672 (1980) ......... 7

Namenwirth v. Board of Regents, 769 F.2d 1235

(7th Cir. 1985), cert. denied, 474 U.S. 1061

AIRE ee eee tol eee Crna ae 12, 13, 18

Powell v. Syracuse Univ., 580 F.2d 1150 (2d Cir.),

cert. denied, 439 U.S. 984 (1978) ......000.0020eeece. 9

Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265

a A a ea a a 6

Regents of the Univ. of Mich. v. Ewing, 474 U.S.

RIESE Ra SR or en, ec A ..-.0, 18

Senigaur Vv. Beaumont Indep. School Dist., 760

F. Supp. 1200 (E.D. Tex. 1991) ....................0....... 10

iii

TABLE OF AUTHORITIES—Continued

Page

Sweezy V. New Hampshire, 354 U.S. 234 (1957)... 6,7,9

Texas Dep’t of Community Affairs Vv. Burdine, 450

te IED sensei ete icas iba tad cee ates 3

University of Penn. v. EEOC, 493 U.S. 182 (1990)... 4

Villanueva V. Wellesley College, 930 F.2d 124 (1st

Cir.), cert. denied, 112 S. Ct. 181 (1991) .......... 5, 10,11

Zahorik v. Cornell Univ., 729 F.2d 85 (2d Cir.

TEL EEE LR KL CPR ere EE 8,11,12,17

STATUTES

Civil Rights Act of 1964, Pub. L. No. 88-352, 78

Stat. 261 (1964) (codified as amended at 42

eT eB te Renee Lie Ce 2,3

OTHER AUTHORITIES

American Association of University Professors,

Statement on Procedural Standards in Faculty

Dismissal Proceedings, AAUP Policy Documents

f 2 fe. | See smooess Ses Seon 8

Bartholet, Application of Title VII to Jobs in High

Places, 95 Harv. L. Rev. 945 (1982) .............0....... 5

Byrne, Academic Freedom: A “Special Concern

of the First Amendment,” 99 Yale L.J. 251

ERRORS AI EAC nee meet. FAME mm % * FE.

Finkin, On “Institutional” Academic Freedom, 61

ee Ul StS RR ee ee 6

Metzger, Profession and Constitution: Two Defi-

nitions of Academic Freedom in America, 66

oe! ES, RRC eee 6

Note, The Double-Edged Sword of Academic Free-

dom: Cutting the Scales of Justice in Title VII

Litigation, 65 Wash. U. L.Q. 445 (1987) ............. 6

Note, Title VII on Campus: Judicial Review of

University Employment Decisions, 82 Colum. L.

eS ae a 6

Tepker, Title VII, Equal Employment Opportunity,

and Academic Autonomy: Toward a Principled

Deference, 16 U.C. Davis L. Rev. 1047 (1983).... 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-819

RUTGERS, THE STATE UNIVERSITY; BOARD OF

GOVERNORS OF RUTGERS, THE STATE UNIVERSITY ;

and Dr. EDWARD J. BLOUSTEIN,

. Petitioners,

Dr. ALFRED BENNUN,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF AMICI CURIAE AMERICAN COUNCIL ON

EDUCATION, NEW YORK UNIVERSITY,

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,

THE TRUSTEES OF PRINCETON UNIVERSITY,

THE UNIVERSITY OF MICHIGAN,

AND THE UNIVERSITY OF PENNSYLVANIA

IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE

New York University, Princeton University, the Uni-

versity of Californie, University of Michigan, and the

University of Pennsylvania (‘the Universities’) are pri-

vate and public institutions of higher education. As such,

the Universities are regularly engaged in the process of

reviewing candidates for academic appointments, tenure,

and promotions. The ‘‘peer review” process employed by

the Universities and their faculties in making academic

2

employment decisions lies at the core of academic self-

governance.

The American Council on Education (“ACE”) is the

nation’s major coordinating body in postsecondary educa-

tion. Founded in 1918, ACE is a voluntary membership

organization composed of more than 1,300 nonprofit insti-

tutions of higher education from both the public and

private sectors and more than 175 educational associations

and organizations. As an association of more than half of

all American colleges and universities ACE is uniquely

able to represent the interests of the higher education

community in legal matters of national importance, in-

cluding the proper interpretation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq., as it applies

to this case.

The Universities and ACE have a direct and powerful

interest in the manner in which statutes such as Title

VII are applied to academic tenure and promotion deci-

sions. Although each of the Universities has a long-

established and demonstrated commitment to eradicating

invidious discrimination from their campuses, each also

recognizes that governmental scrutiny of academic em-

ployment decisions has the potential to trench upon values

of academic freedom and legitimate institutional au-

tomomy.

Because of their institutional interest in the develop-

ment of the law at issue here, the Universities and ACE

respectfully seek leave of the Court to participate as

amici curiae in support of the petitioners in this case.

STATEMENT

Respondent Dr. Alfred Bennun, an associate profes-

sor of biochemistry, repeatedly sought promotion to the

rank of full professor from his employer, Rutgers, the

State University of New Jersey (“Rutgers” or “the Uni-

versity”). At least five times the University subjected

Dr. Bennun to the scrutiny of the academic peer-review

process and each time the University, acting through Dr.

3

Bennun’s peers, concluded that Dr. Bennun, although

showing some accomplishment as a researcher, did not

merit advancement under the University’s promotion cri-

teria. Dr. Bennun challenged the University’s decisions

as violative of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq., alleging that the University

had in fact denied him promotion because he is Hispanic.

At trial, Dr. Bennun produced no direct evidence that

any participant in the peer review process at Rutgers

had been influenced in any way by discriminatory animus.

See Bennun v. Rutgers, 737 F. Supp. 1393, 1400-01 (D.

N.J. 1990), aff'd in relevant part, 941 F.2d 154 (3d

Cir. 1991). Indeed, there was no evidence of discrimina-

tory animus by the University aimed at either Dr. Bennun

or any other employee. Rather, Dr. Bennun rested his

case exclusively upon his comparison of his own qualifi-

cations with those of candidates who had won promotion

to full professor. Id.

The district court, applying the analytical framework

set out in this Court’s opinions in Texas Dep’t of Com-

munity Affairs Vv. Burdine; 450 U.S. 248 (1981), and

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

found that Dr. Bennun had carried his burden of making

out a prima facie case of discrimination.' The court also

found that the University had carried its burden of

articulating a legitimate, nondiscriminatory reason for

its action: it had assertedly denied promotion based upon

its assessment of Dr. Bennun’s overall academic qualifi-

cations. See Bennun, 737 F. Supp. at 1407. Consequently,

the pivotal dispute arose over whether Dr. Bennun had

1 Specifically, the court found that Dr. Bennun had proved by a

preponderance of the evidence that he was a member of a class

protected by the statute, that he sought and was denied a promo-

tion for which he was arguably qualified, and that nonmembers of

the protected class won similar promotions. See Bennun v. Rutgers,

737 F. Supp. 1398, 1398-99, 1401-05 (D.N.J. 1990), aff’d in relevant

part, 941 F.2d 154 (3d Cir. 1991); see also Bennun vy. Rutgers

State Univ., 941 F.2d 154, 170-77 (3d Cir. 1991),

4

carried his burden of persuasion that the University’s

stated reasons for its decision were a mere pretext for

racial discrimination.

The district court accepted, as did the court of appeals,

Dr. Bennun’s argument that it was appropriate for the

court to compare his academic credentials with those of

other candidates who had won promotion and to decide

for itself whether he merited promotion to the rank of

full professor at Rutgers. Based solely upon its own

assessment of Dr. Bennun’s relative strength as a candi-

date for promotion, the district court declared the Uni-

versity’s assessment of Dr. Bennun’s merit to be pre-

textual and ordered that Dr. Bennun be granted a full

professorship. See id. at 1407-09. The Third Circuit

affirmed the district court’s Title VII rulings in all re-

spects. See Bennun v. Rutgers State Univ., 941 F.2d 154,

170-80 (3d Cir. 1991).?

ARGUMENT

I. BACKGROUND: ACADEMIC FREEDOM AND THE

APPLICATION OF TITLE VII

There is no dispute that Title VII applies to university

employers.” A claim of invidious discrimination in aca-

demic employment is, and shovid be, actionable, and the

2 Although amici are convinced that the process by which the

lower courts concluded that Dr. Bennun deserved promotion was

fundamentally flawed, they do not mean to imply that Dr. Bennun

does not warrant a promotion. That is an issue that amici are no

better suited to evaluate from a distance than are the courts in

this case. Amici’s interest is limited to assuring that Title VII is

applied to institutions of higher educaticn in a manner that fairly

balances their interest in academic autonomy and the public interest

in eliminating all invidious discrimination. The decision of the court

of appeals fails to strike that balance.

*In 1972, Congress repealed the exemption which had previously

taken educational employees outside the scope of Title VII's pro-

tection. See University of Penn. v. EEOC, 493 U.S. 182, 189-90

(1990).

5

federal courts must be permitted to review the disputed

employer action to determine whether the complainant

was the victim of discrimination. What remains un-

settled, however, is whether a university’s employment

decisions with regard to faculty must be tested against

precisely the same standard as applied to non-academic

employers.

It is widely accepted that the familiar McDonnell

Douglas-Burdine analytical framework may be shaped by

the demands of particular circumstances. This Court has

made clear that the McDonnell Douglas framework was

“never intended to be rigid, mechanized or ritualistic,”

Furnco Constr. Corp. v. Waters, 488 U.S. 567, 577 (1978),

and that the standards of proof required of plaintiffs

legitimately may vary depending upon the peculiar factual

setting of the complaint, see McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 n.13 (1973). The question

presented by this case—one that has left the circuits in

disarray for more than a decade—is whether the McDon-

nell Douglas-Burdine analytical mode] should be adjusted

in the academic employment context. Compare, e.g., Kunda

v. Muhlenberg College, 621 F.2d 532, 545 (3d Cir. 1980)

(rejecting modification of the McDonnell Douglas model

as applied to academic employment decisions) and Jepsen

v. Florida Bd. of Regents, 610 F.2d 1379, 1382 (5th Cir.

1980) (same) with Villanueva v. Wellesley College, 930

F.2d 124, 128 (1st Cir.) (rejecting “a mechanical ap-

plication of the McDonnell Douglas framework” as ap-

plied to academic employment decisions), cert. denied,

112 S. Ct. 181 (1991) and Lieberman v. Gant, 630 F.2d

60, 67 (2d Cir. 1980) (“lacademic] freedom cannot be

disregarded in determining the proper role of courts

called upon to try allegations of discrimination by uni-

versities in teaching appointments” ).*

‘ Likewise, the issues have generated considerable debate but

little consensus among commentators. Compare, e.g., Bartholet,

Application of Title VII to Jobs in High Places, 95 Harv. L. Rev.

6

The First Amendment values at stake are vital. This

Court has recognized that “[a]cademic freedom, though

not a specifically enumerated constitutional right, long has

been viewed as ‘a special concern of the First Amend-

ment.’” Regents of the Univ. of Cal. v. Bakke, 438 U.S.

265, 312 (1978) (opinion of Powell, J.) (quoting Keyi-

shian V. Board of Regents, 385 U.S. 589, 603 (1967)).

“Academic freedom thrives not only on the independent

and uninhibited exchange of ideas among teachers and stu-

dents . . . but also, and somewhat inconsistently, on

autonomous decsion-making by the academy itself.” Re-

gents of the Univ. of Mich. v. Ewing, 474 US. 214,

226 n.12 (1985) (citations omitted). The Constitution’s

concern for academic freedom includes “[t]he freedom of

a university to make its own judgments as to education,”

Bakke, 438 U.S. at 312 (opinion of Powell, J.), and “to

determine for itself on academic grounds who may teach,”

Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957)

(Frankfurter, J., concurring) (citation omitted) .*

945 (1982) (arguing against applying a different standard to aca-

demic employers) with Tepker, Title VII, Equal Employment Op-

portunity, and Academic Autonomy: Toward a Principled Defer-

ence, 16 U.C. Davis L. Rev. 1047 (1983); Note, Title VII on

Campus: Judicial Review of University Employment Decisions, 82

Colum, .L, Rev. 1206, 1227 (1982) (“First amendment values sug-

gest that universities should be treated differently from other

employers under title VII when making independent decisions on

matters important in shaping their academic identities.”); and

Note, The Double-Edged Sword of Academic Freedom: Cutting the

Scales of Justice in Title VII Litigation, 65 Wash. U. L.Q. 445,

468-70 (1987) (concluding that “[t)he McDonnell Douglas approach

is inadequate” in the academic employment context and proposing a

modified system of somewhat higher burdens of proof).

5 See generally Byrne, Academic Freedom: A “Special Concern

of the First Amendment,” 99 Yale L.J. 251, 311-40 (1989); Metz-

ger, Profession and Constitution: Two Definitions of Academic

Freedom in America, 66 Tex. L. Rev. 1265, 1310-19 (1988); Finkin,

On “Institutional” Academic Freedom, 61 Tex. L. Rev. 817, 829

(1983).

7

The constitutional significance accorded to the univer-

sity’s interest in self-governance is rooted in the recog-

nition that educational institutions are genuinely different

from all other economic and social institutions, and that

they occupy a special place in a democratic society.® It is

the special character of the university that has led this

Court to recognize the national “commit[ment] to safe-

guarding academic freedom, which is of transcendent

value to all of us and not merely to the teachers con-

cerned.” Keyishian v. Board of Regents, 385 U.S. 589,

603 (1967).

Because of the foundational importance of academic

inquiry in the life of the nation, this Court has “pro-

tected principally and expressly a First Amendment

right of the university itself ... largely to be free from

government interference in the performance of core edu-

cational functions.” 7 Among these core educational func-

tions which lay claim to constitutional protection is the

academic peer review process through which universities

“determine ...on academic grounds who may teach.” A

*See Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957)

(“The essentiality of freedom in the community of American uni-

versities is almost self-evident. No one should underestimate the

vital role in a democracy that is played by those who guide and

train our youth. ... Teachers and students must always remain

free to inquire, to study and to evaluate, to gain new maturity and

understanding; otherwise our civilization will stagnate and die’’) ;

cf. NLRB v. Yeshiva Univ., 444 U.S. 672, 680-81 (1980) (acknowi-

edging, in the context of a suit brought under the National Labor

Relations Act, that “principles developed for use in the industrial

setting cannot be ‘imposed blindly on the academic world’ ’”’)

(quoting Syracuse Univ., 204 N.L.R.B. 641, 643 (1973) ).

7 Byrne, supra note 5, at 311 (footnote omitted); see also Sweezy,

354 U.S. at 262 (Frankfurter, J., concurring) (the Constitution’s

protection of academic freedom requires “the exclusion of govern-

mental intervention in the intellectual life of a university’’).

8

university’s hiring and tenure decisions significantly de-

fine its future intellectual character and mission. By

vesting powerful influence over these decisions in the

collective judgment of the university faculty itself, the

peer review system ensures that the difficult task of

evaluating a scholar’s contributions and promise will be

assigned to those best suited to the task. In addition, it

secures for the university facuity meaningful control over

the future life of the university.* Indeed,

[pleer review is the canonical procedure for deter-

mining “who will teach.” . .. Peer review consigns

evaluation of a faculty candidate in the ordinary

course to fellow faculty whom we must presume to

be both competent to evaluate scholarly accomplish-

ment and promise and dedicated to the tradition of

academic freedom which seeks to separate the ques-

tion of competence from exogenous factors.

Byrne, supra note 5, at 319. In short, “[a]cademic

freedom has no meaning without peer review.” Id.

’“A decentralized decision-making structure founded largely on

peer judgment is based on generations of almost universal tradi-

tion stemming from considerations as to the stake of an academic

department in such decisions and its superior knowledge of the

academic field and the work of the individual candidate.” Zahorik

v. Cornell Univ., 729 F.2d 85, 96 (2d Cir. 1984); see also American

Association of University Professors, Statement on Procedural

Standards in Faculty Dismissal Proceedings, AAUP Policy Docu-

ments & Peports 10, 10 (1984) (“It seems clear on the American

college scene that a close positive relationship exists between the

excellence of colleges, the strength of their faculties, and the extent

of faculty responsibility in determining faculty membership’).

9

II. THERE IS A CONFLICT IN THE CIRCUITS OVER

THE JUDICIARY’S PROPER ROLE IN REVIEW-

ING UNIVERSITY EMPLOYMENT DECISIONS

A.

In applying Title VII to educational institutions, most

courts, cognizant of the competing First Amendment

values at stake, have held that judicial scrutiny of faculty

employment decisions must be tempered in the academic

context. Faced with the seeming tension between compet-

ing societal! and legal values, most courts have tried “to

steer a careful course between excessive intervention in

the affairs of the university and the unwarranted tol-

erance of unlawful behavior.” Powell v. Syracuse Univ.,

580 F.2d 1150, 1154 (2d Cir.), cert. denied, 439 U.S. 984

(1978).

Theoretically, of course, there is no confiict between the

university’s First Amendment interest in “determin [ing]

for itself on academic grounds who may teach,” Sweezy

v. New Hampshire, 354 U.S. 234, 263 (1957) (Frank-

furter, J., concurring), and judicial inquiry to ensure

that a university does not determine on impermissible,

nonacademic grounds who may join its faculty. See, e.g.,

Brown Vv. Trustees of Boston Univ., 891 F.2d 337, 360

(1st Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990);

Byrne, supra note 5, at 319. Indeed, judicial inquiry,

tempered by sensitivity to the complexities of academic

evaluation and with due regard for the competing values

at stake, is wholly compatible with the Constitution’s

protection of institutional academic freedom. The same

inquiry, however, undertaken without modification of the

usual McDonnell Douglas framework to account for the

peculiarities of the academic setting may imperil aca-

demic freedom: a court’s insensitivity to the subtle dis-

tinctions that must be drawn in assessing academic

candidates may lead the court to decide for itself, on

alternative academic grounds, who should teach.

To protect against this risk, the First Circuit, for

example, has held that the standard McDonnell Douglas

10

framework must not be applied “mechanical[ly]” in the

context of academic decisionmaking. Villanueva Vv.

Wellesley College, 930 F.2d 124, 128 (1st Cir.), cert.

denied, 112 S. Ct. 181 (1991). Rather, the “delicate

equilibrium” between a university’s academic freedom and

the courts’ duty to eradicate discrimination requires a

modification of the burden the plaintiff must carry in

persuading the court that the employer’s articulated basis

of decision is pretextual.

In nonacademic employment contexts, where an em-

ployer justifies its employment decision based upon its

assessment of a candidate’s qualifications, the unsuccess-

ful candidate may sometimes demonstrate pretext by

simple comparisons showing that her qualifications were,

in fact, the same as or better than the successful candi-

date.” In the academic employment context, however, in

part because of the far more complex problem of measur-

ing a teacher-scholar against the standards of a particular

institution at a particular time and in part because of

the unique First Amendment considerations at stake,

something more must be required. Consequently, in the

First Circuit, the plaintiff

must convince a trier of fact . . . that the defend-

ant’s articulated reasons for denying tenure “were

‘obviously weak or implausible,’ or that the tenure

standards for prevailing at the tenure decisions were

® See, e.g., Lindahl v. Air France, 930 F.2d 1434, 1439 (9th Cir.

1991) (because “the[] facts tend to show that [the successful can-

didate chosen in plaintiff’s stead] may not have been the best person

to lead the group, .. . they therefore suggest that leadership ability

may not have been the real reason for choosing [the successful can-

didate] over [the plaintiff]”); Alvarado v. Board of Trustees, 928

F.2d 118, 122 (4th Cir. 1991) (plaintiff’s greater experience and

length of service as a janitor suggests that employer’s claim that

successful candidate was better qualified was pretextual); Senigaur

v. Beaumont Indep. School Dist., 760 F. Supp. 1200, 1205 (E.D.

Tex. 1991).

11

‘manifestly unequally applied.’ The essential words

are ‘obviously’ and ‘manifestly.’ A court may not

simply substitute its own views concerning the plain-

tiff’s qualifications for those of the properly insti-

tuted authorities; the evidence must be of such

strength and quality as to permit a reasonable find-

ing that the denial of tenure was “obviously” or

“manifestly” unsupported.

Id. at 129 (quoting Kumar v. Board of Trustees, 774

F.2d 1, 15 (1st Cir. 1985) (Campbell, J., concurring),

cert. denied, 475 U.S. 1097 (1986) ).

The Second and Seventh Circuits have applied similarly

deferential standards in the university employment con-

text. The Second Circuit, for example, has suggested that

comparisons between scholarly candidates are often of

little use in divining pretext and that courts should stop

short of the sort of de novo review of a candidate’s aca-

demic credentials approved by the Third Circuit in this

case. Zahorik v. Cornell Univ., 729 F.2d 85, 92-93 (2d

Cir. 1984) (“tenure decisions in an academic setting in-

volve a combination of factors which tend to set them

apart from employment decisions generally”); see also

Lieberman Vv. Gant, 630 F.2d 60, 67-68 (2d Cir. 1980)

(Friendly, J.) (trial judge “did not err in declining

plaintiff’s invitation to engage in a tired-eye scrutiny of

the files of successful male candi¢eates for tenure in an

effort to second-guess the numerous scholars at the Uni-

versity of Connecticut who had scrutinized [the plain-

tiff’s] qualifications and found them wanting”).’” “[FJor

10 The Zahorik court explained:

Where the tenure file contains the conflicting views of spe-

cialized scholars, triers of fact cannot hope to master the

academic field sufficiently to review the merits of such views and

resolve the differences of scholarly opinion. Moreover, the level

of achievement required for tenure will vary between univer-

sities and between departments within universities. Deter-

12

a plaintiff to succeed in carrying the burden of persua-

sion, the evidence as a whole must show more than a

denial of tenure in the context of disagreement about the

scholarly merits of the candidate’s academic work, the

candidate’s teaching abilities or the academic needs of the

department or university.” Zahorik, 729 F.2d at 94.

In Namenwirth v. Board of Regents, 769 F.2d 1235

(7th Cir. 1985), cert. denied, 474 U.S. 1061 (1986), the

Seventh Circuit, too, was confronted with a case in which

an unsuccessful tenure candidate rested her allegation of

pretext almost envirely upon “comparative evidence con-

cerning the qualification|s] of males tenured at about

the same time [the plaintiff] was denied tenure.” Jd.

at 1241. The court acknowledged that such comparisons,

although perhaps ‘more difficult in the case of profes-

sional and academic employment decisions,” are relevant

in determining whether the employer’s articulated rea-

sons for its decision are pretextual. Jd. at 1240-41. None-

theless, the court refused to review de novo the univer-

mination of the required level in a particular case is not a

task for which judicial tribunals seem aptly suited.

729 F.2d at 93.

In addition to the concerns about the ability of courts to engage in

effective comparative review of the academic evaluations and judg-

ments of university faculty, some courts also have observed that

such cases impose significant burdens on the resources of the

trial courts. Judge Friendly, for example, noted in the Lieberman

case that trial of the plaintiff’s claim “produced a transcript of

nearly 10,000 pages and almost 400 exhibits and consumed 52 days

of court time.” Lieberman vy. Gant, 630 F.2d 60, 62 (2d Cir. 1980).

As Judge Friendly observed, such exhaustive and costly trials are

virtually inevitable where judges are required to review the enor-

mously complex and fact-intensive process by which a university

makes tenure and promotion decisions affecting a comparative range

of candidates. See id. at 62 n.1 (“We do not understand how either

the federal courts or universities can operate if the many adverse

tenure decisions against women or members of a minority group

that must be made each year are regularly taken to court and entail

burdens such as those here incurred”).

13

sity’s assessments concerning the relative qualifications of

academic candidates:

The [plaintiff’s] evidence consists for the most part

of comparative evidence of research quality and po-

tential. That means that it consists in large part of

the opinions of academics who serve not only as

experts on qualifications but also as decision-makers

in the tenure process. It is not our role, as federal

courts have acknowledged, to consider merely the

hard evidence of research output and hours spent on

committee work, and reach tenure determinations

de novo.

Id. at 1242." Although aware that deference to the

assessments of those who are alleged to have discrimi-

nated may appear paradoxical, the court justified this

deference on grounds of relative institutional competence.’”

All three Circuits—the First, Second, and Seventh—

recognize the broad relevance of comparative evidence of

candidates’ credentials in making out an indirect case for

pretext, but agree that such evidence should succeed only

11 This Court, too, in another context, has recognized the judi-

ciary’s limited capacity for “evaluat[ing] the substance of the

multitude of academic decisions that are made daily by faculty

members of public educational institutions—decisions that require

‘an expert evaluation of cumulative information and [are] not

readily adapted to the procedural tools of judicial or administrative

decisionmaking.’” Regents of the Univ. of Mich. v. Ewing, 474

U.S. 214, 226 (1985) (quoting Board of Curators v. Horowitz, 435

U.S. 78, 89-90 (1978) ).

12 [IT ]n the case of tenure decisions we see no alternative. Tenure

decisions have always relied primarily on judgments about

academic potential, and there is no algorithm for producing

those judgments. Given the similar research output of two

candidates, an experienced faculty committee might—-quite

rightly— come to different conclusions about the potential of

the candidates. It is not our place to question the significance

or validity of such conclusions.

Namewirth v. Board of Regents, 769 F.2d 1235, 1243 (7th Cir.

1985), cert. denied, 474 U.S. 1061 (1986).

14

where plaintiffs meet a heightened burden of demonstrat-

ing a “manifest” inequality of treatment. None, for

example, would permit a plaintiff to prevail based upon

comparative evidence suggesting that the plaintiff was

as qualified as or somewhat better qualified than a non-

protected fellow employee who won tenure or promotion.

Rather, each would demand some higher showing—e.g.,

“a claim that [the] plaintiff’s qualifications were cleariy

and demonstrably superior to those of the successful |can-

didates|”** or “evidence . . . so compelling as to permit

a reasonable finding of one-sidedness going beyond a mere

difference in opinion.” '* What is important at this stage

is not the precise formulation of the burden, but rather

the judicial recognition that some heightened standard is

appropriate in light of the unique countervailing values

at stake in the academic setting.

B.

The Third Circuit has squarely rejected the view that

academic employment decisions merit different considera-

tion under Title VII. See Bennun v. Rutgers State Univ.,

941 F.2d 154, 174 (3d. Cir. 1991) (‘no special deference

is to be paid to the tenure and promotion decisions of uni-

versities when they are scrutinized under Title VII”)

(emphasis omitted) ; Kunda v. Muhlenberg College, 621

F.2d 532, 545 (3d Cir. 1980)..° Although the Third

Circuit previously had declared its view that academic

employment decisions were to be tested against the same

McDonnell Douglas analysis applied to nonacademic em-

ployers,’* that declaration had been tempered with simul-

13 Lieberman, 630 F.2d at 68.

14 Brown Vv. Trustees of Boston Univ., 891 F.2d 337, 347 (1st

Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990).

15 Accord Jepsen V. Florida Bd. of Regents, 610 F.2d 1379, 1382

(5th Cir. 1980).

16 See Kunda Vv. Muhlenberg College, 621 F.2d 532, 545 (3d Cir.

1980).

15

taneous admonitions that courts “should not substitute

their judgment for that of the college with respect to the

qualifications of faculty members for promotion and

tenure.” '’ In Bennun, however, it is evident from the

inquiry actually undertaken by the court that the Circuit

has abandoned any effort at moderation:

In its disparate treatment analysis, the district court

compared Bennun’s review packets [containing his

curriculum vitae, peer review evaluations, and simi-

lar papers] with those of Dr. Ethel Somberg, a pro-

fessor in the same department as Bennun. Somberg

had been promoted from Associate Professor to Full

Professor in 1979. Relying in part on its compari-

son of Somberg’s academic credentials with Bennun’s,

the district court held that Bennun had made out a

prima facie case of disparate treatment and that

Rutgers’ proffered nondiscriminatory reason, failure

to meet the university’s high standards for full pro-

fessorship in the judgment of his peers, was a pretext

for discriminat[ion]....

Bennun, 941 F.2d at 158-59 (citations omitted) ."*

The Bennun court’s comparison of the relative “aca-

demic credentials” of the two candidates, based upon

nothing more than the hypothesis that Dr. Bennun was at

least as qualified as Dr. Somberg, points out the very real

dangers presented by the insensitive application of tradi-

tional Title VII standards to the academic setting. The

court, for example, assessed “the extent” of the can-

didates’ respective research efforts by tallying up their

17 Kunda, 621 F.2d at 548.

18 Certainly Chief Judge Sloviter, who dissented to the denial

of rehearing en banc, believed that the Bennun decision marke] a

sharp change in course: “In the present case, it would appear that

this Court has abandoned the doctrine of restraint set forth in

Kunda.” Bennun vy. Rutgers State Univ., 941 F.2d 154, 181 (3d

Cir. 1991) (Sloviter, C.J., dissenting from denial of rehearing en

banc).

16

respective number of publications listed in their promotion

packets, see Bennun V. Rutgers, 737 F. Supp. 1893 (D.N.J.

1990), aff'd in relevant part, 941 F.2d 154 (38d Cir.

1991) ; it concluded that “Bennun’s packet . . . was ob-

jectively stronger than Somberg’s in that it contained

more letters from significant scholars in the Biochem-

istry field,” id. at 1406; it decided that “various evalua-

tions of Bennun’s teaching were very similar to evalua-

tions of Somberg’s,” id.; and, “perhaps most importantly,”

it disagreed with “the University’s contention that Ben-

nun was mediocre in all areas besides research,” id. at

1406-07. Based on its independent and de novo assess-

ment of the relative academic merit of the two faculty

members, the court concluded that “the reasons articu-

lated by the University concerning Bennun[’s academic

merit] are simply not believable,” and dismissed them as

a pretext for invidious racial discrimination. Jd. at 1408.”

C.

Amici do not contend that university tenure and

promotion decisions may never be tested by way of com-

parative analysis between the complainant and other, suc-

cessful candidates. There are cases in which a university’s

12 The conflict between the Third Circuit’s approach and the

more restrained approaches of other Circuits is obvious. Compare,

e.g., Bennun, 941 F.2d at 158 (affirming the trial court’s judgment

for Dr. Bennun based upon “its comparison of Somberg’s academic

credentials with Bennun’s”) with Lieberman v. Gant, 630 F.2d 60,

67 (2d Cir. 1980) (“[T]o infer discrimination from a comparison

among candidates is to risk a serious infringement of first amend-

ment values. A university’s prerogative ‘to determine for itself on

academic grounds who may teach’ is an important part of our long

tradition of academic freedom. ... Although academic freedom

does not include ‘the freedom to discriminate’, .. . [academic] free-

dom cannot be disregarded in determining the proper role of courts

called upon to try allegations of discrimination by universities in

teaching appointments. The Congress that brought educational

institutions within the purview of Title VII could not have contem-

plated that the courts would sit as “Super-Tenure Review Commit-

tee[s]’ ... ; their role was simply to root out discrimination” )

(citations omitted).

17

proffered reliance upon a particular, ascertainable em-

ployment criterion could reliably be verified through such

comparisons.’ It is also possible that this Court might

craft success*ully some heightened proof standard—along

the lines suggested by the First, Second, and Seventh

Circuits—under which plaintiffs could prove pretext

through comparative evidence only where the evidence

revealed such clearly unequal treatment that the univer-

sity’s interests in legitimate self-governance could not

possibly be implicated.

It is apparent, however, that the approach adopted by

the Third Circuit in Bennun leaves colleges and univer-

sities vulnerable to judicial findings of liability (and

potentially intrusive remedial orders?!) wherever there

are superficial similarities in the curricula vitae of suc-

cessful and unsuccessful candidates. The only escape al-

lowed by Bennun is for universities effectively to abandon

the searching, though highly subjective, peer review sys-

*0 For example, if a university claimed to withhold a promotion

on grounds of an ironclad rule that all candidates must hold a

terminal degree in their field, evidence that the university had pro-

moted nonminority candidates without such degrees could reliably

be used to suggest the university’s reason was pretextual. Cf.

Kunda Vv. Muhlenberg College, 621 F.2d 532 (3d Cir. 1980). More-

over, there are other methods, not involving comparison of can-

didate qualifications, by which a complainant could demonstrate

that an academic employer’s stated reasons were pretextual, includ-

ing evidence of “[d]Jepartures from procedural regularity” in the

university’s decisionmaking process. Zahorik v. Cornell Univ., 729

F.2d 85, 93 (2d Cir. 1984); see also Kunda, 621 F.2d at 546

(defendant-university advised only male employees of its terminal-

degree requirement, leaving complainant unaware until it was too

late to satisfy the requirement).

21 See, e.g., Brown V. Trustees of Boston Univ., 891 F.2d 337,

359-60 (1st Cir. 1989) (ordering that Title VII plaintiff be instated

as a tenured professor over university’s protest that “tenure is a

significantly more intrusive remedy than remedies ordinarily

awarded in Title VII cases ... because a judicial tenure award

mandates a lifetime relationship between the University and the

professor”), cert. denied, 110 S. Ct. 3217 (1990).

18

tem in favor of a system in which each candidate’s paper

record is “objectively” compared with all those who went

before, to ensure perfect and verifiable uniformity among

decisions. But a purely objective system would be useless

as a device for comparing academic achievement. More-

over, what makes the approach below particularly per-

verse is that, even assuming the courts’ ability to dis-

cern accurately the objective “competence” of various

candidates, it ensures that each new candidate need only

be as competent as the least competent previously success-

ful candidate. The adverse impact of that approach is

especially revealing here where the research skills of the

earlier candidate (Dr. Somberg) were concededly her

weakest area of competence, and yet those skills became

the benchmark for measuring the merit of the next can-

didate (Dr. Bennun), whose research skills were con-

cededly his strongest area of competence. Because aca-

demic talents are by their nature extremely diverse, some

heightened proof of disparity among candidates more

properly balances the competing interests of academic

freedom and antidiscrimination.

“The courts have struggled with the problem [of how

to scrutinize a university’s assessment of faculty qualifica-

tions without infringing legitimate values of institutional!

autonomy] since Title VII was extended to the university,

and have found no solution.” Namenwirth, 769 F.2d at

1243. Indeed, six years after the Seventh Circuit fssued

that lament, a comparison of the two most recentf court

of appeals decisions—the First Circuit’s Villanueuh deci-

sion and the Third Circuit’s Bennun decisio onfirms

that, if anything, the circuits have staked out even more

conflicting approaches.

This Court’s review of the important issues presented

by the application of the McDonnell Douglas framework to

the academic employment setting is urgently needed to

resolve the enduring conflicts among the various circuits.

19

In addition, this Court’s review is warranted to consider

whether the sort of judicial intervention into faculty

tenure and promotion decisions approved by the Third

Circuit in Bennun is compatible with the First Amend-

ment’s “special concern” for the university’s “right to

determine for itself on academic grounds who may teach.”

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

Rex E. Lee *

CARTER G. PHILLIPS

SipLey & AUSTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 736-8000

Counsel for Amici Curiae

* Counsel of Record

December 19, 1991