Hammer v. The Board of Regents of The University of Michigan

The University of Michigan has a long and proud history of commitment to diversity. Past Presidents such as Lee Bollinger are famous for the lengths they were willing to go to prove it. He defended Affirmative Action in front of the U.S. Supreme Court. The thought that the University would ever tolerate traditions that discredit that hard fought reputation defies belief. Nevertheless, this is precisely what former Assistant Law Professor Peter J. Hammer alleges. He sued the University in 2003 and claimed in his deposition that the Michigan Law School simply “pay[s] lip service” to their equal treatment polices and promises.[2] The University’s legal team is claiming that their definition of “nondiscrimination and equal opportunity,”[9] – as spelled out in the Faculty Handbook, is more of a suggestion than a rigid rule to follow.[2] I believe the Michigan Law School has a flawed tenure system that leaves the University vulnerable to charges of discrimination.

Tenure lawsuits can sometimes be revelatory because they expose unsound policies and practices at Universities. The experience can be an opportunity for administrators to review and fix their procedures. In the Hammer case, The University of Michigan has taken a stance of stubborn resistance. The proceedings have carried on since 2003 to the time of this writing. Hammer is suing Michigan because he claims the Law School faculty harbor “animus” toward homosexuals.[2] It has been no secret that Hammer left the closet long ago. When he was hired at Michigan Hammer made it clear that he was “out.”[2] He was assured this would not be a problem and that they even offered health benefits for domestic partners.[2] From 1995 to 2002, Hammer and fellow homosexual professors claim they found the Law School to be hostile toward Gays.[2] None of his Gay colleagues were “out” before getting tenure.[2] Hammer claims in his deposition that one colleague was highly favored for dean until he came “out.”[2] After coming “out” his colleague was no longer talked about. Hammer claims that the University is insincere about diversity.[2] The problem, I believe, is that it is left up to the university to interpret what they mean by diversity. The concept has certainly changed over the years. At one time it was women who ran into the glass ceiling. Gays appear to be running into something similar today.

A faulty tenure process can actually facilitate discrimination and cause a University to suffer a brain drain. Denying status to someone who simply thinks differently is the antimatter of diversity. Hammer is a brilliant man whose scholarship rivals some of the best. His tenure denial is inconsistent with the University’s stated commitment to diversity. According to the legal complaint, Hammer earned his Jurist Doctorate from the University of Michigan Magna Cum Laude, while also earning a Ph.D. in Economics on the side. The Michigan Law School website profile of Hammer points out that he was heavily involved in defending Exxon in the Valdez case.[5] He also established a public defender program in Cambodia.[5] His main focus however is health policy, he has numerous peer reviewed articles published on the subject.[5]

Hammer is currently an adjunct Professor at The University of Michigan School of Public Health, as well as a full-time tenured professor at Wayne State Law School.[5] His stable academic life shows that his lawsuit is not an act of desperation. He is a man with time to bide and a point to make. Hammer may be trying to show us how the Michigan Law School tenure process actually invites discrimination. He has demonstrated through his deposition that it is virtually impossible for someone who wants to be partial to get caught doing it. Hammer further pointed out in a testimony he made before the Michigan Legislature that the State still has no hate crime legislation to protect members of the L.G.B.T. community.[3] This is why Hammer cannot sue for Gay discrimination, because it is not a crime in Michigan. If the Regents want to do the honorable thing, and set an example that they support diversity, what better way to do that than to admit discrimination and retroactively tenure Hammer?

The University of Michigan Law School tenure process is based on the honor system which is defective since not everyone is honest 100 percent of the time. In 2002 Hammer came up for tenure.[2] A sub-committee recommended him four to one.[6] The full faculty voted, and he lost by two, the total was eighteen for and twelve against.[6] Hammer needed a two thirds majority.[6] According to Hammer there has not been a male considered and then denied tenure at the Law School in the last four decades.[2] While seemingly suspicious, this system does have some advantages. For example, the minute ways in which a professor might not measure up academically or performance wise might best be assessed in a closed door environment of professional collegial judgment. This does not, however, justify not having a record for the candidate to use to better themselves in the future. Besides, what do they have to hide that they cannot say to his face? The University needs to put modernization over some traditions like non-accountability in tenure voting.

When universities are left to their own devices to determine tenure, there is a danger that the process can become arbitrary. Unregulated tenure processes put institutions in a weak position because requirements are often obfuscated and the reasons for denial are almost always not given. Terry Leap claims in his book Tenure, Discrimination, and the Courts, that most Universities simply argue that they are exempt from nondiscrimination laws because of their “academic nature.”[8] They are, however, quick to hold their instructors accountable when it suits them. This is why Professors seek tenure, it is a form of legal protection against this double standard. Proving discrimination at Michigan’s Law School is next to impossible because the participants are not required to leave written evaluations. Julie Suk of Harvard’s Digitas points out that at other prestigious law schools like Harvard, faculty are required to leave written reports with the Dean.[11] This is obviously meant to help protect those being considered for tenure from discrimination. Yet The Commission on Academic Tenure in Higher Education disagrees. They argue that needs, prerogatives, and paradigms change frequently and that schools should be free to assess their requirements as they see fit.[12] Leap furthers that by saying some Universities claim they must be free to find the right talent to fit fast changing social paradigms.[8] Many schools like Michigan vigorously defend their process of peer voting and secrecy, sticking stubbornly to tradition and precedent. The administrators presume that they are somehow above the fray of ordinary people for indeed they rule the ivory tower. Large numbers of women and minorities have been excluded from tenure in the past with no real explanation for why. This is what lay people call a “Good ol’ Boys Club.” The tenured Law Professors at Michigan are nothing more than a buddy club. Their system is outdated and must be brought in line with the modern age for the sake of respectability for the University.

One fault that results from having a secretive enclave vote is that evidence of discrimination in tenure denial trials is scant to nil. The cases often limp on for years and consume hundreds of thousands of dollars.[8] This is the situation with the Hammer lawsuit. It began in 2003, as a breach of contract suit, and as of this writing is still ongoing. Hammer’s accusations rest on three counts. All allege that some faculty members harbor “animus” toward homosexuals. The first count is that Professor William Miller’s book, Faking It, refers to homosexuals and African Americans as “Pariah Groups.”[2] Miller also was allegedly the sole vote against an African American tenure candidate six years later.[2] The second count alleges that another Professor teaches Sunday school at a church that denounces homosexuality on its website.[2] The final count alleges that a female professor had made off-the-cuff derogatory comments about gays.[2] All of this evidence came about as a result of sworn testimony in the case. No current or past Michigan Law Professors responded to interview questions for this essay. This certainly gave me the impression that they operate as a secretive club; one that apparently does not invite Gays to join knowingly. According to a recent Bloomberg News article about the case, most people in Michigan are not on Hammer’s side either.[7] The article claims, “most assume that the University has got a grip on this sort of thing.”[7] Hammer’s only hope is that the Judge is not apathetic. If the Judge were to invalidate just three votes, Hammer would win his case. He would get back pay and tenure at Michigan.

The University of Michigan has left itself exposed to potential lawsuits; because nowhere in the Faculty Handbook is there a disclaimer denying contractual rights based on the contents.[9] In Arneson V. Board of Trustees a court ruling first established a precedent for “faculty manual[s]” to be considered as part of an employment contract.[8] In the Arneson case a lecturer was let go then got his job back when a Judge ruled that the University had not followed the notification rules spelled out in the handbook.[8] Universities are subject to the same employment rules as every other humble employer. This issue is at the very heart of the Hammer case. The Faculty Handbook is the contract that he is claiming that the University breached.

The University’s denial of their own policies in their defense has shown that they are being dishonest. The Faculty Handbook for Instructional and Primary Staff says “[The University] is committed to a policy of nondiscrimination and equal opportunity for all persons.”[9] Hammer’s ongoing lawsuit against the University directly questions their “commitment” to diversity. The crux of the case seeks to show that the University harbors pockets of anti-gay sentiment. It is ironic that the entire purpose behind Hammer seeking tenure was to protect him from colleagues who disagree with Homosexual views. Unfortunately tenure has not always protected outspoken faculty at Michigan. Former assistant Medical School dean Dr. Thomas D. Ludfeld sued the University in 1997 for wrongful termination.[10] The University maintains that he “resigned” when Ludfeld claims he did not.[10] Dr. Ludfeld says that the University retaliated against him for speaking out against racism at the Medical School.[10] Dr. Ludefeld claims he sued not to get rehired or for compensation, he said he did it “to make a change in the environment for minority students at the school.”[18] It is easy to infer that Hammer’s motivations are similar. It defies sensibility that this is the same University that just spent millions of dollars defending affirmative action.

Arguments made by University attorneys represent a clear conflict of interest, and have positioned the University on an ethical slippery slope. The legal team defending the University against Hammer’s lawsuit, Green, Green & Adams, P.C., is the same team that defended Affirmative action at the U.S. Supreme Court during Grutter V. Bollinger.[1] In that case they argued that it was constitutional to discriminate against Caucasian applicants to Michigan’s law school. Now with the Hammer case they have expounded upon their earlier argument by saying that it is somehow kosher to discriminate against Homosexuals as well.[2] The lawyers for the University have claimed before the judge that non-discrimination is just a “suggestion” and not a rule to be rigidly followed.[2] To be fair, it must be understood that the administration is probably just doing everything it can to wrangle out of a pernicious discrimination lawsuit. The case may be made that they are simply trying to defend the University by any means necessary. This legal logic is flawed because it sets a precedent for arbitrary inequality. The argument goes that if you can deny one group, why not another, then another. Hammer’s purpose may be to bring this to light. He is not desperate. Hammer is currently tenured at Wayne State Law School, and actively practices law.[5] I believe his goal is to send a message to the Alum and to future students. He is putting it in the record for posterity.

Peter Hammer has shown the Michigan community that it has a flaw in its armor. He has artfully and delicately unraveled an outdated tenure process that clearly allows for discrimination. Hammer has demonstrated that the system may even invite the behavior because it is nearly impossible for a perpetrator to get caught. The process consists of nothing more than a wizard behind a curtain saying yes or no, and that’s that. It may very well be the case that Peter Hammer did not measure up to the scholarly level of his peers. He does not list any books on any of his online Curriculum Vitae.[4] Then again there are tenured professors at Michigan who have also never published a book. Perhaps there was something lacking in his work ethic that only his peers could observe. So why not give him a written assessment? Hammer will now always wonder why without a good answer. It is ironic that this lawsuit may have tipped the tenure vote in his favor at Wayne State University. The University of Michigan’s system has caused the Law School to miss out on an exceptional teacher and scholar of Law. Scholars invest a great deal of time, toil, and money into their careers. They spend a lot of time researching, citing, and asking why. Wasting their time by leading them to believe they are on the right track is morally incomprehensible. When they come to the point where they are considered for tenure they naturally want a fair accounting and deserve clear answers. The tenure track at Michigan’s law school is not clear and the criteria are obfuscated. They are not even up to date with other comparable law schools. At Michigan it is simply comes down to an up or down vote. A denied candidate like Hammer really has nothing more than hearsay and guesses by which to assess his life’s work. Every Michigan Alum’s degree is valued on the University’s credibility, and it should keep them up at night knowing that their hard work is also in jeopardy.

[1] Grutter V. Bollinger. 539 U.S. §306. Supreme Court of the US. 2003. Findlaw. Findlaw.com,. Web. 16 April 2010.
[2] Hammer V. Board of Regents of the University of Michigan. No. 04-241-MK. 30th Judicial Cir. 2003. Print. 16 April 2010.
[3] Hammer, Peter J., “Discrimination Threatens Michigan’s Future Economic Growth”. Wayne State Law School. 26 Aug. 2009. Web. 14 April 2010.
[4] Hammer, Lecturer Peter. “Peter J. Hammer.” University of Michigan Law School. Web. 14 April 2010.
[5] Hammer, Professor Peter. “Profile: Peter J. Hammer.” Wayne State University Law School. 28 Aug. 2007. Web. 14 April 2010
[6] Kroll, Andy. “Law professor, University in long legal battle over alleged discrimination.” The Michigan Daily, michigandaily.com, Dec. 11, 2007. Web. 15 April 2010
[7] Kufchock, Liane. “Gay Law Professor Provokes Ire in Michigan for Suing University.” Bloomberg News, Bloomberg.com, Dec. 17, 2007. Web. 14 April 2010.
[8] Leap, Terry L. Tenure, Discrimination, and the Courts. Ithica: IRL Press 2nd ed. 1995. Print.
[9] Michigan, University of, Faculty Handbook. 9 April, 2010. Web.
[10] Schneider, Alison. “U. of Michigan Faces 3 Lawsuits From Former Professors Alleging Racial Bias. 12 Sep. 1997. Web.
[11] Suk, Julie. “Dancing Around the Edges: Women and Minority Faculty Tenure,” digitas, Harvard.edu, Dec. 1994. Web.
[12] The Commission on Academic Tenure in Higher Education. Faculty Tenure. London: Jossey-Bass Publishers, 1973. Print.