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Federal Courts Rebuff Faculty Discrimination Suits

In recent months, federal judges in Pennsylvania, Illinois and Arizona have dealt major setbacks to faculty members in lawsuits alleging racial discrimination at three universities:

Duquesne University 

In Pennsylvania, U.S. District Judge Nora Fischer dismissed most claims by Kellen McClendon, a tenured African-American associate professor who was passed over for dean of the Duquesne University School of Law in Pittsburgh.

McClendon alleged that racial bias played a role in denying him even an initial interview during a 2004 dean’s search. The hiring committee chairman, Duquesne Provost Ralph Pearson, reportedly told another committee member at the time that he “did not want to advance a ‘token’ to the interview stage,” according to court documents.

When the deanship reopened in late 2008, the school appointed a White professor without administrative experience as the interim dean, over the current associate dean, who was Black. The move convinced McClendon that it would have been futile for him to even apply for the permanent position, he said, because the committee was still chaired by Pearson. The committee again interviewed no minority candidates. Fischer ruled that McClendon waited too long to sue based on the 2004 search. The statute of limitations on such actions in Pennsylvania is two years, but McClendon waited until 2010 to file suit. She also said the fact that he didn’t apply for the reopened position barred his claim for failure to hire or promote.

Nor did McClendon offer enough proof of a racially hostile work environment to warrant a trial, she said. Such an environment occurs only when the workplace is severely and pervasively permeated with “discriminatory intimidation, ridicule and insult.” The judge found that McClendon “asserted isolated acts that are not so severe as to demonstrate, if proved, an abusive situation constituting a hostile work environment.”

The decision let stand McClendon’s retaliation claim, however.

Northeastern Illinois University

In another case, Dr. Loretta Capeheart failed to persuade a judge to let her pursue a federal retaliation claim against Northeastern Illinois University and three of its administrators.

She alleged retaliation for exercising her free speech rights in addressing the Illinois Legislative Latino Caucus about the university’s small number of Hispanic faculty and students.

In her complaint, Capeheart, a tenured associate professor of justice studies and a “self-described activist,” said, “They took me down for having the gall to say we need more Latino faculty.”

She also claimed retaliation for opposing CIA and military recruitment on campus and for criticizing the university’s treatment of student demonstrators who were arrested during a protest.

The suit accuses the university of wrongfully denying her a faculty excellence award and an appointment as department chair because of her public statements. However, U.S. District Judge Blanche Manning ruled that Capeheart’s public comments weren’t protected by the First Amendment. “Courts have routinely held that even the speech of faculty members of public universities is not protected when made pursuant to their professional duties,” Manning said of Capeheart’s comments about the arrested students.

The decision said the arrested students belonged to the university’s Socialist Club, which Capeheart advised. She claims they actually belonged to an anti-war club with which she was not affiliated.

Manning also noted that the university’s allegedly retaliatory actions did not occur until almost a year after Capeheart’s remarks about Hispanic faculty.

Capeheart says she will appeal and will separately pursue related claims in Cook County Circuit Court

Arizona State University

The third decision involved Nigerian-born Dr. Olufunmilayo Amobi, who contended that Arizona State University didn’t promote her from assistant to associate professor of secondary education and denied her tenure based on race and national origin. She accused the university of having a “policy and practice of denying tenure and promotion to Black professors of African descent.”

The suit also alleged that ASU President Michael Crow denied her application in consultation with the provost and vice president for academic personnel and that he “instructed” senior administrators “to harass Amobi, create a hostile work environment for her and devise a plan for terminating her.”

In 2007, ASU denied Amobi promotion and tenure, instead extending her probationary period by two years with instructions to improve her scholarly productivity.

In 2009, she turned down the offer of promotion to clinical associate professor because the two-year appointment would have meant giving up her tenure-track position. “No other non-Black counterpart has ever been similarly required to resign a tenure track position for a temporary position,” the suit said.

In dismissing the case, U.S. District Judge John Sedwick said Amobi failed to show that she was fully qualified for promotion and tenure, noting that she hadn’t achieved the publication goals set for the extended probationary period. Nor did she show that non-Black colleagues with similar qualifications had received tenure.

He also found insufficient evidence that university officials “acted with discriminatory purpose” or that their alleged comments and behavior were “sufficiently severe or pervasive to sustain a hostile work environment claim.


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