On June 14, 2019, the United States Court of Appeals for the District of Columbia Circuit rejected the argument that a university should be entitled to special academic deference in employment discrimination claims concerning denial of tenure brought under Title VII of the Civil Rights Act of 1964 (“Title VII”). Mawakana v. Bd. Of Trustees of the Univ. of the Dist. Of Columbia, No. 18-7059 (D.C. Cir. June 14, 2019).
In Mawakana, an African American professor brought suit after he was denied tenure by the University of the District of Columbia (“UDC”). He failed to receive a recommendation for tenure at each step of UDC’s process, including from the relevant faculty committees, the dean and the provost, as well as in the final decision by the university president. Mawakana sued UDC for, among other things, race discrimination under Title VII and the District of Columbia Human Rights Act (“DCHRA”). The district court granted UDC’s motion for summary judgment and dismissed Mawakana’s claims, reasoning that it was required to accord “heightened deference” to UDC’s “academic decisions.” Like the district court here, some courts in prior decisions, including in the District of Columbia, have suggested that they are reluctant to find discrimination in faculty tenure or promotion decisions. See, e.g., Okruhlik v. Univ. of Arkansas, 395 F.3d 872, 879 (8th Cir. 2005) (“The academic setting and complex nature of tenure decisions, however, distinguishes them from employment decisions generally.”); Elam v. Bd. of Trustees of Univ. of D.C., 530 F. Supp. 2d 4, 17 (D.D.C. 2007) (citing Okruhlik for the proposition that “a court must be particularly wary of second-guessing a university’s decisions concerning faculty members”); Jiminez v. Mary Washington Coll., 57 F.3d 369, 376 (4th Cir. 1995) (“We commence with the premise that while Title VII is available to aggrieved professors, we review professorial employment decisions with great trepidation.”).
The D.C. Circuit’s analysis of academic deference
The D.C. Circuit reversed the district court’s grant of summary judgment to UDC, holding that United States Supreme Court precedent “and the concept of academic freedom do not entitle a university to special deference in Title VII tenure cases.” Although the Court acknowledged that the Supreme Court in University of Michigan v. Ewing, 474 U.S. 214 (1985) held that courts must defer to universities in reviewing the “substance of a genuinely academic judgment” made in “good faith,” the question in a Title VII case is “whether the employer acted in good faith.” More specifically:
Ewing dictates that a court cannot second-guess a university’s decision to deny tenure if that decision was made in good faith (i.e., for genuinely academic reasons, rather than for an impermissible reason such as the candidate’s race) . . . . A Title VII claim requires a court to evaluate whether a university’s decision to deny tenure was made in good faith (i.e., for academic reasons rather than for an impermissible reason such as the applicant’s race).
In a footnote, the court, surveying a number of cases across the country, highlighted that many (but not all) other courts have applied “the same Title VII standard to faculty members as to other discrimination plaintiffs,” and that upon a “close examination,” even the cases that “express[ed] solicitude” related to faculty employment decisions effectively were not applying a different Title VII standard.
The court also reversed summary judgment on Mawakana’s claims under the DCHRA, noting that the legal analysis of a race discrimination claim under Title VII and the DCHRA is the same.
Having disposed of the argument that UDC is entitled to academic deference; the D.C. Circuit viewed the evidence in the light most favorable to the professor, as required at the summary judgment stage, and held a reasonable jury could find that race was a motivating factor in UDC’s decision to deny Mawakana tenure. In reaching this decision, the court was heavily influenced by evidence concerning the dean, who in the court’s view, while not the ultimate decision-maker, was a proximate cause of the ultimate negative decision. The court relied on evidence presented by the professor, including that the dean:
- sometimes applied stricter review criteria to black applicants for tenure, such as disfavoring co-authored works for black applicants but not white applicants;
- supported every white applicant for tenure during her time as dean but raised concerns about more than half of the black applicants;
- had dissuaded two black faculty from applying for tenure; and
- changed her position on issues that were subsequently relevant to the tenure decision, such as originally speaking favorably of an article by the professor and later stating that it did not meet tenure standards.
Applying the Mawakana decision
While the D.C. Circuit’s decision rejects the concept of special deference in cases involving academic judgment, it is important to underscore the limits of the Mawakana holding. While the D.C. Circuit has held that courts should not place a “thumb on the scale” of a university in an employment discrimination simply because of “academic deference,” the case does not mean that an employment discrimination plaintiff can prevail on a discrimination claim by convincing a court that a university’s academic judgment was simply incorrect or unwise. If it can be shown that the university made a genuine academic decision—just like if a non-university employer has made a genuine business decision—a plaintiff cannot prevail (or survive summary judgment) simply by second guessing academic (or business) judgment. Courts have often stated that they do not “serve as a super-personnel department that reexamines an entity’s business decisions.” Barbour v. Browner, 181 F.3d 1342, 1346 (D.C. Cir. 1999). This principle applies equally in and out of the higher education context. Additionally, the D.C. Circuit was careful to point out that, even absent academic deference, it may be “especially difficult” as a practical matter for an employment discrimination plaintiff to succeed in challenging a tenure decision, given, among other things, the complexity of the decision and the numerous decision makers involved.
Furthermore, the D.C. Circuit did not address whether its holding extends beyond employment discrimination cases. Therefore, the court’s decision does not necessarily preclude an academic deference argument in another context, such as in a breach of contract case. See Brown v. The George Washington Univ., 802 A.2d 382, 385 (D.C. 2002) (granting summary judgment on breach of contract claim to university that did not promote professor or renew her contract; explaining that the court must “proceed with particular caution” and “only rarely assume academic oversight, except with the greatest caution and restraint, in sensitive areas as faculty appointment, promotion, and tenure” (quotation marks omitted)); Alden v. Georgetown Univ., 734 A.2d 1103, 1109 (D.C. 1999) (granting summary judgment on breach of contract claim to university that dismissed student from school, emphasizing the heavy burden a plaintiff faces in an academic dismissal case due to the need to defer to a university’s academic judgment).
Nonetheless, the Mawakana decision makes clear that universities should strive in the tenure decision process to:
- have clear policies and criteria;
- apply the policies and criteria consistently and evenhandedly;
- treat similarly situated people similarly; and
- assure that those involved in the different stages of the process understand their responsibilities and the university’s anti-discrimination policies.
For more information on the Mawakana case or any other employment or higher education law issues, please contact one of the authors or the Hogan Lovells lawyer with whom you work.