Law Schools, Racism

Black Law Professor Sues Predominantly Black Law School... For Race Discrimination?

While the facts of the case are still emerging, what do we know now that might make sense of this unusual claim?

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Kemit Mawakana, formerly known as Samuel Jefferson, is suing his former employer on claims of race discrimination. The University of D.C. David A. Clarke School of Law, a historically black institution, denied tenure to Mawakana, who is black. Mawakana’s complaint alleges that “UDC’s application of disparate standards is racially based, as white professors with far less impressive credentials in the area of scholarship, teaching and service have been granted tenure and promotion, while other African-American professors have similarly been rejected.” The complaint notes that UDC has denied all three of the black professors who have applied for tenure in the past three years, while granting tenure to both of the two white professors who have applied during the same years.

While the facts of the case are still emerging, here are three points to keep in mind before forming an opinion on Mawakana’s unusual claim.

1. Black School, White Faculty.

UDC is ordinarily identified as a historically black school. Yet, currently a majority of its full professors, including the law school dean, are white. At UDC, three full professors appear to be African American. Around nine of them appear to be Caucasian.

At UDC, like at many law schools, only tenured faculty can vote on the promotion of a colleague to full, tenured professor. Mawakana’s claim that he was discriminated on the basis of race is more plausible once one considers that the people deciding the fate of his career at his HBCU law school were mostly white.

2. Denying Mawakana Tenure Looks Suspicious, Even If He’s Wrong That His White Colleagues Were Unqualified For Tenure.

UDC concluded that Mawakana did not deserve tenure because of his failure to meet the faculty’s standards for scholarship. He claims in his complaint that UDC granted tenure to “white professors with far less impressive credentials.”

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As comparators, Mawakana offers William McLain and Matthew Fraidin, both professors in UDC’s clinical program. (The complaint actually refers to “Mathew Fraiden” and subsequently “Fraiden.” I am guessing that the complaint is talking about UDC professor Matthew Fraidin. But who knows? If a guy named “Samuel Jefferson” can change his name to “Kemit Mawakana,” why couldn’t a guy named “Matthew Fraidin” change his name to “Mathew Fraiden”?) UDC awarded tenure to McLain in 2012. Mawakana’s complaint notes that McLain “offered zero published works — not one,” instead relying “exclusively on legal briefs or memoranda he had written in litigation.” UDC awarded tenure to Fraidin in 2013. While the complaint doesn’t dispute that Fraidin submitted scholarship, it points out that Fraidin produced fewer law review articles than Mawakana did, at least some of Fraidin’s work was co-authored with others, and at least one was published in UDC’s own law review.

UDC’s Standards for Promotion and Tenure allow faculty’s work to “be done individually or in collaboration with others” and provide that work may take the form of “academic research and publications; field, empirical and clinical-advocacy research, together with interpretation analysis, and application of the data and materials developed; and constructive change in the law by legislative, judicial, or executive-administrative means.”

In McLain’s case, submitting litigation documents with his tenure application might not fall outside of the school’s guidelines for tenure consideration, particularly if it chooses to emphasize practice experience among its clinicians. Fraidin appears to have a respectable record of accomplishments outside of academia. Whether his work published in law reviews is of the highest caliber or not, he doesn’t appear to be a slouch. U.S. News ranks UDC seventh in the nation for best clinical training programs. UDC may have decided that McLain and Fraidin, with their extensive practical experience, contributed to the school’s vision for its clinics.

Even if Fraidin or McLain did deserve tenure, that does not mean that Mawakana did not deserve it too, however. Normally, UDC asks tenure applicants to submit “at least three published scholarly works of quality or three scholarly equivalents [sic] works related to the practice of law.” Mawakana published four articles. UDC’s denial of Mawakana’s application does, indeed, look fishy.

3. There Might Be More To The Story . . . And It Might Include More Racism.

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In the years leading up to Mawakana’s tenure application, the professor was the subject of lawsuit by a former UDC student, an older Caucasian man named Dennis Alan Van Dusen. Did Mawakana’s interactions with the UDC leadership during this dispute sour the faculty and administration’s relationship with the professor?

Van Dusen alleged that when taking Mawakana’s Fall 2006 Contracts I class, he inadvertently breached the anonymity policy on the final exam. The test question was framed as a mock memo, and Van Dusen included his actual name in the caption of his mock memo response. (You can see both Mawakana’s exam and Van Dusen’s answer on, for example, pages 121 through 123 here.) Mawakana refused to grade Van Dusen’s work and failed him for the course.

Van Dusen argued that his punishment was unduly harsh and the procedure governing the dispute was muddled. He suggested that Mawakana treated him with animus and “intolerance” for being a “vocal student” who questioned the professor’s method of teaching Contracts and whose participation in classroom discussions concerning “the use of power between blacks and whites” did not go over well with Mawakana. (See page 137 here for Van Dusen’s description of their relationship.) In an appeal to the UDC Provost, Van Dusen asks rhetorically, “Would a reasonable professor see Professor Jefferson’s course content disproportionately slanted toward the plight of the black or powerless? Would a reasonable professor see Professor Jefferson’s course material more difficult for those who had not studied black history, African Studies, or black power?” Mawakana’s final exam question (on page 108 here) itself at least hints at why the relationship between Van Dusen and his professor might have been strained from the start.

While some members of the faculty allegedly supported Van Dusen’s cause, ultimately the school deferred to Mawakana’s judgment. A protracted legal battle ensued. In 2011, Van Dusen and UDC reached a settlement agreement.

Van Dusen’s collection of documents related to his suit is available on his website, though wise readers know to be skeptical of one party’s account of their own suit. Van Dusen may deserve an extra helping of skepticism, given that he has since plead guilty to criminal charges for spying on female tenants in his rental properties by installing cameras in their homes. Because, seriously, this story could not get weirder or feature more questionable characters.

Is a black prof suing a black school for race discrimination a joke? Not with a predominantly white faculty making the employment decision. Were Mawakana’s white colleagues unqualified for the promotions they received, as the complaint suggests? Probably not. Was it still suspicious that Mawakana was fired? Yes. Is it reasonable to wonder whether the Van Dusen lawsuit, fraught with its own racial implications, might have played a role in some UDC faculty members axing Mawakana when he came up for tenure? I think so. Is it possible that Mawakana himself might be responsible for intolerance against a student of another race? Yes. If true, does that mean that UDC was entitled to deny Mawakana tenure, citing inferior scholarship? Not at all.

Earlier: Black Law Professor Says Law School Wouldn’t Give Him Tenure Because He’s Black

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.

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