The University of Virginia Law School, and legal academia more generally, have been rocked recently by a controversy involving a leading law professor and claims of anti-gay animus.
William N. Eskridge Jr. — currently the John A. Garver Professor of Jurisprudence at Yale Law School, where we had great good fortune of having him as a professor — testified last month before Congress in support of the pending Employment Non-Discrimination Act of 2009 (ENDA). ENDA would prohibit sexual orientation and gender identity discrimination in the workplace. In explaining the need for ENDA, Professor Eskridge made reference to his own career, testifying that “I was denied tenure at the University of Virginia School of Law in 1985 based in part on my sexual orientation.” You can, and should, read his complete testimony here (opens as a Word document).
The controversy has, of course, reverberated throughout the blogosphere. See, e.g., the UVA Law Blog (including 40+ comments, many of them quite insightful); Brian Leiter’s Law School Reports (here and here); and The Faculty Lounge. The UVA Law Blog also reprints a Virginia Law Weekly article from January 1986 about the Eskridge tenure denial (which was strongly opposed by students; if you’ve been lucky enough to have Bill Eskridge as a teacher, this should not be a surprise).
We reached out to both Professor Eskridge and UVA Law School. We received written statements from Professor Eskridge and from Dean Paul G. Mahoney.
Their statements, plus a comprehensive collection of links, appear below.
Here is Professor Eskridge’s statement, in full. It incorporates the statement submitted to Above the Law by Dean Mahoney (and previously posted by Professor Leiter), so we have not reprinted Dean Mahoney’s statement separately.
STATEMENT OF WILLIAM N. ESKRIDGE, GARVER PROFESSOR, YALE LAW SCHOOL
On September 23, 2009, I delivered (brief) oral and (lengthy) written testimony before the House Committee on Education and Labor. I recounted my own tenure case at the University of Virginia. [My written testimony, link here, pp. 83-93.]
My claim was that the tenure decision in the autumn of 1985 was tainted by legal improprieties. I identified three kinds of improprieties:
As I recount in my written testimony, the result of this process was a faculty vote ratifying the tainted committee recommendation that I not receive tenure but be given a short-term contract (my written testimony, p. 86). Based upon my experience with the committee chair, conversations with committee members, and the misrepresentations in the committee report (which I secured in 1986), I left Virginia for Georgetown.
In conclusion, I testified that “the state had discriminated against me at least in part because of anti-gay animus, and its own documents indicated that there was not a rational basis at work; I was lied to and denied the process long established by the law school’s own procedures and probably also guaranteed by the Due Process Clause; and I was probably also being disciplined for various intellectual positions I had taken on matters of law school policy, including my leadership in a faculty motion for the law school to divest itself of investments in South Africa during apartheid, and matters of legal theory, such as my critique of leave-markets-alone law and economics, based upon cognitive psychology.” (My written testimony, p. 91.)
Dean Paul Mahoney, the current dean at Virginia, recently posted a reply to my testimony. Here is the version I have seen:
Professor Eskridge testified that he was denied tenure in 1985 because of his sexual orientation. He was not actually denied tenure, but was deferred for future consideration, a common procedure at the time. The faculty wished to see the fruits of his promising, but nascent, scholarly interest in legislation before granting tenure. His subsequent scholarship in that area was highly successful and influential, and he would certainly have received tenure at Virginia had he not resigned to accept a lateral offer from Georgetown.
People who were on our faculty at the time of these events deny that Professor Eskridge’s sexual orientation played any role. Many were unaware of it. And they emphatically deny the specific conversations Professor Eskridge recounts.
In my 19 years on the Virginia faculty, I have seen none of the prejudice that Professor Eskridge alleges. On the contrary, relations among straight, gay and lesbian professors have always been warm and supportive. Virginia prides itself on a friendly, collegial, welcoming environment and remains completely committed to equality, civility and mutual respect.
Dean Mahoney joined the faculty in or about 1990, five years or so after the events described above. [Ed. note: Dean Mahoney confirmed this to ATL: "I did not overlap with Professor Eskridge. He resigned in 1988 and I arrived in 1990."] It is not clear that he reviewed the detailed record of the case when he issued this reply.
Dean Mahoney’s reply is mistaken as to a number of specific points, and I’d welcome a conversation with him where contemporaries or I can provide written or other evidence that (1) the committee’s report was dismissive of my legislation work and explicitly belittled the excessive “detail” in my “treatment of rules and maxims of statutory interpretation”; (2) there was no chance that the faculty would have reconsidered or granted tenure based upon the legislation or any other work, as I was told at the time by senior faculty and at least one member of the committee; (3) relations between the law school and gay professors have not “always” been warm and supportive. The University of Virginia School of Law’s culture in the 1980s was the culture of Justice Lewis Powell, the Justice from Richmond, Virginia who (erroneously) thought he had never met a “homosexual” and who was willing to join the Court’s opinion in Bowers v. Hardwick (1986), which rejected a privacy challenge to the state’s power to make consensual “homosexual sodomy” a felony with a mandatory one year sentence.
My larger point of disagreement with Dean Mahoney rests upon my characterization of the lack of professionalism displayed by the committee and its chair. Did the committee inform me of the written guarantee that I had to respond to their criticisms in person before the committee issued its report to the faculty? Did the chair engage in the tirade that I describe? I can describe that tirade in detail; if the chair of committee claims that he followed the procedures described above or denies that he engaged in this tirade, he is lying to Dean Mahoney.
To be sure, Dean Mahoney is in a tough spot. He was not there in 1985, and it can hardly be surprising that he would deny impropriety in a “he said, he ‘emphatically’ said” situation. There is a smoking gun, however, and it is in writing: the committee’s report. The report is filled with factual misrepresentations and fabrications; its few evaluations include the dismissive attitude toward rules and canons of statutory interpretation that refute Dean Mahoney’s view that I “would certainly have received tenure at Virginia” based upon legislation work.
In my written testimony, I provide a detailed account of the committee’s opening salvo against my article on home mortgages in the Virginia Law Review. My argument was that consumers were taking on too much risk with adjustable rate mortgages in the 1980s, and I suggested a number of reforms that would ameliorate this problem, which I characterized as serious but hard to solve. From the beginning of its report, the committee misrepresented my arguments and my proposed solutions (my written testimony, p. 88). I’d be happy to work with Dean Mahoney personally or with a committee of neutral scholars, to determine how serious and pervasive the committee’s misrepresentations were. If the committee chair submitted a libelous report to the faculty, is that not evidence of bad faith? That the chair was covering up his own misconduct when he “emphatically denied” the tirade to the dean?
Let me close on a note of likely agreement with Dean Mahoney. Setting aside the dispute whether the School of Law was justified in its treatment of my case, we both might agree that the result was lose-lose: Virginia lost a top teacher and capable scholar, and I lost the opportunity to teach as a tenured professor at the school where both of my grandfathers received their law degrees.
Statement of Professor William N. Eskridge
[U.S. Congress - House Committee on Education and Labor (via hunter of justice)]
Did Homophobia at the Law School Cause a Professor to Jet? [UVA Law Blog]
Dean Mahoney Responds to Eskridge’s Allegations [UVA Law Blog]
Law Weekly: “Prof. Stanley Henderson, who chairs the Appointments Committee, said student criticism of recent tenure recommendations ‘hurts’” [Virginia Law Weekly via UVA Law Blog]
Homophobia at UVA law school, circa 1985 [hunter of justice]
Yale’s Eskridge Tells Congress He Was Denied Tenure at Virginia Because of Sexual Orientation Discrimination [Brian Leiter's Law School Reports]
Virginia Dean Mahoney’s Statement on Professor Eskridge’s Allegations [Brian Leiter's Law School Reports]
Eskridge Alleges Not Being Given Tenure by UVA Law Based in Part on Sexual Orientation [Workplace Prof Blog]
Spit, “faggot,” and a tenure denial [The Faculty Lounge]
Letter to the Editor: Community Must Be Supportive of All Students [Virginia Law Weekly]