Sunday, October 04, 2009

Dean Mahoney Responds to Eskridge's Allegations

EDIT: And Professor Eskridge has now responded to Dean Mahoney [Above the Law]

Brian Leiter reports Dean Mahoney's response to Professor Eskridge's allegations:

... [Professor Eskridge] 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.

Mahoney followed with a pargraph discussing the importance of diversity at the Law School and noting that "relations among straight, gay and lesbian professors have always been warm and supportive." Leiter seems to agree with the gist of Mahoney's statement:

I will just add that Dean Mahoney's statement is consistent with what I have heard on various occasions from others familiar with these events and with the state of Professor Eskridge's scholarship at the time of the decision to defer.

We wonder if Eskridge will engage this at all, or simply let what he said before Congress speak for itself.

Did Homophobia Cause a Law School Professor to Jet?
Law Weekly On Eskridge's Denial of Tenure


Anonymous said...

First of all, I wouldn't consider this comment from dean as UVA Law's official response because this so called "statement" was only available at Brian Leiter's personal blog, not on UVA website or any other press outlets. By the way, Brian Leiter, a specialist in law school rankings,is a professor of U Chicago Law, where one of the original UVA Law appointment committee menbers,Levmore,is the dean -- not exactly in a neutral position.

From the beginning paragraph, the statement is misleading, claiming Eskridge was alleging that sexual orientation was the only cause of the denial of tenure. This simply is not true as Eskridge's main contention was the fact that he was deprived of due process, claiming that the animus against his sexual orientation was one of the factors involved. This was supported by his description of Professor Henderson's behavior.

I believe the UVA Law community deserves better than this kind of half hearted, second hand "statement". We deserve more detailed, honest, accounts of the event from the current dean, Professors Henderson and Merrill or other people who were involved in this process. If errors were made, honest apology is in order.

Anonymous said...

So...Eskridge got butthurt because he felt entitled to something immediately that most people didn't get right away?

Sounds like he'd fit in with the current legal job market right now.

Anonymous said...

I think this statement has had limited circulation because U.Va. has no reason to expand this controversy. In a bland, oblique way Mahoney has called Eskridge a liar. Beyond not conceding the truth of Eskridge's rather extraordinary allegations (he feared a year later for his physical safety in Charlottesville; Stan Henderson hocked on him and never apologized) what else can U.Va. do? If it didn't happen that way they shouldn't admit it did, but neither is there any upside in going aggressively after Eskridge.

Memory is notoriously fallible. What we think we remember often is not true but distorted by our mental constructs. It is very possible that Eskridge believes this happened and Henderson believes it did not.

Me, I can believe Stan Henderso harbored a negative animus towards gays, as that was typical of his generation, but I just can't believe he would walk into someone's office, spit on them, and then be unapologetic. It's just too far out of character.

Anonymous said...

Since the nature of the events is contested, it would behoove the blog and neutral reporting not to title a previous post "law weekly on Eskridge's denial of tenure" because according to Dean Mahoney, tenure was not denied.

Anonymous said...

Agreed. Why sully the law school's name any further, when this is basically a he said/he said contest that happened decades ago? UVA Law today has many highly respected professors who are either openly out or privately so. The school supports, and has numerous members within, Lambda Law. Manufacturing controversy over ancient history strikes me as pretty irresponsible and ill-considered.

country lawyer said...

Professor Eskridge has now responded to Dean Mahoney:

He stands by his testimony, although he does not repeat the spitting claim. As he says, Mahoney did not refute or even address his primary claim of fact: that he was denied the procedural fairness he had a right to.

Professor Henderson and then Dean Merrill, as well as others on the appointments committee, are yet to be heard from.

From available information the chronology appears to be that ~11/19/85, the committee initially voted to deny tenure. ~11/20/85 Henderson and Eskridge met in Eskridge's office. ~11/23/85 Henderson, Eskridge and Merrill met in Merrill's office. Eskridge says a formal vote of the committee also was taken that day. If so, why was Eskridge not afforded an opportunity to discuss his scholarship with the committee before that vote?

Country Lawyer said...

I should like to correct myself. Prof Eskridge does repeat the spitting claim in his response to Dean Mahoney.

Anonymous said...

UVA Law Blog did well to have posted a link to a 9/29/2006 Law Weekly article from four years ago where a large group of named students, Lambda members and faculty members explicitly and publicly denounced an anti-gay attack (drink throw) and slur by one student towards another at Foxfield (horse races event) (at

Although this incident showed the ugly and violent behavior by one student (who later appologized), it also suggests that two openly gay students in Virginia were not afraid to kiss publicly in front of their classmates. In that letter, Lambda members suggest that the incident - although highly alarming - was not emblematic of a larger problem.

Not denying that anti-gay prejudices were more prevalent twenty-five years ago than they are today, the fact that among the faculty who signed the 2006 Law Weekly public letter is Richard Merrill, the Dean at the time Eskridge went up for consideration for tenure, may help to assess the degree to which anti-gay sentiments played a role in the decision to defer Eskridge's tenure decision (although it is of course simply one data point).

Anonymous said...

@ the first comment.

What if Eskridge fabricated his story about the spitting and offensive language? Does he owe UVA an apology or are you applying a double standard?

Also, why are you giving the benefit of the doubt to one man over the (apparent) word of lots of people? What makes Eskridge more credible than all the people who deny his allegations?

Anonymous said...

I put a lot more weight on Eskridge's words because his words were produced under oath in Congress, compared to the words of others, which have been either anonymous or through third person, such as Dean Mahoney. We have not heard anything so far from the mouth of Merritt or Henderson, for example. On top of that, it just doesn't make sense for Eskridge, who is the fourth most cited legal scholar in constitutional law in last decade in the U.S., to fabricate this story at this point of career. Eskridge's demand that a panel of third party scholars examine the original appointment committee's report to see how unfair the treatment was doesn't sound like from a guy who made up the story.

The more ardently some of you try to hush up this story by questioning Eskridge's credibility, the more credence you are giving to the impression that UVA Law has a lot to hide.

Jane said...

@ 9:18pm - YES.

"The more ardently some of you try to hush up this story by questioning Eskridge's credibility, the more credence you are giving to the impression that UVA Law has a lot to hide."


Anonymous said...

I support a full, third-party investigation of Eskridge's consideration for tenure at UVA because I want the truth to come out just like any reasonable person. It only hurts UVA to leave this controversy uninvestigated.

That said, I'm not rushing to judgment like many of you.


Anonymous said...

Happened in the 1980s and hasn't been raised by the aggreived party until 2009=entirely unimportant unless it somehow bears on UVA's current conduct. And it doesn't.

Who. Cares.

Anonymous said...

Eskridge responded to the response ... wtf 12f, get with it

Anonymous said...

9:14 -- why spend money and time on a "full investigation"? This happened nearly a quarter century ago, before many 3Ls and most 1Ls were born. Virtually no one in positions of power then is around now -- what, three people on the appointments committee are still in non-emeritus faculty spots at UVA? Unless it turns out there have been a ton of complaints about Abraham's homophobia (certainly there have not), why is this relevant today? Because some disgruntled ex-prof lobbied Congress for a bill he wants by citing a bad experience at UVA a generation ago?

It sucks to have our school criticized like this, and I hope the allegations are exaggerated (and, if not, then I wish they had not happened and hope that Eskridge's successful career has helped him move on). But that said, I think Mahoney's response is the right one -- dispute what seem to be outright falsehoods, and provide the counter-point from the people who were there. And then leave it alone.

Yes, he testified under oath about it, but it's never been proven in court, nor even brought before one, and there's really no reason to fight about it unless it can be shown that this type of thing still goes on -- and it clearly does not.

Anonymous said...

The lasting effect of this sad story, soon likely to be reprised in the US Senate, on the UVA Law School is not so much that talented faculty and students will scorn it, but that they will ignore it.

Prof Eskridge stands by his sworn testimony. Dean Mahoney's primary defense that Eskridge was not denied tenure is patently absurd. Profs Henderson and Merrill have not deigned to respond to allegations causing enduring damage to the school entrusted to their care.

The entity left to twist slowly in the cold, harsh, unforgiving and unforgetting wind of cyberspace is not Prof Eskridge but the University of Virginia Law School.

Anonymous said...

6:57 - overdramatize much?

Anonymous said...

Mahoney is in a tough spot. He can't apologize on behalf of the school if the people who were there then deny Eskridge's allegations. He also can't win if he goes after Eskridge, who has turned out to be not only a great teacher (obvious at the time) but a great scholar (not, to be fair to U.Va., so overwhelmingly obvious at the time).

I think his best out is to take concrete steps to show that U.Va. is not currently homophobic - get some fellowships endowed, start a gay rights clinic, whatever it takes to make it clear that whatever happened back then, it's not part of what U.Va. is today.

Beyond that, someone needs to spend at least a couple of hours thinking about the process of granting tenure at U.Va.. I'm guessing it's changed a lot since the mid 80's - if nothing else, I doubt it's still a three year up or out window, as most schools now make it a six year process so that there is more time to judge the scholarship produced. (If Eskridge had been up after six years, instead of three, there's no question his scholarship would have warranted tenure, something that was less clear after three years). If the process hasn't changed, someone needs to figure out why Virginia grants tenure to people it ought to send packing, and denies tenure to people like Eskridge it ought to keep. My guess is that the problems in the tenure review process back then, and maybe today, go far beyond homophobia. A bad process allows things like homophobia to matter that shouldn't creep in to a fair review, but also allow other irrelevant factors to creep in as well.

The challenge for U.Va. has always been finding great professors that it could keep. Sometimes, it succeeds (case in point, John Jeffries). Sometimes it tenures great professors, and loses them to other schools (cases in point, Pam Karlan, Bill Stuntz, Saul Levmore, Bob Scott). The worst case is to grant tenure mistakenly to someone who then stays around forever, using up a slot but doing nothing for the school.

One of the ironies is that Eskridge's review committee featured some of these mistakes from previous tenure decisions, non-productive scholars who occupied slots for decades without producing much of value to anyone.

Anonymous said...

I am amazed at how quick people are to jump into conclusions, making assumptions and are generally careless dealing with other people's reputations (in both ways in this case), smearing a long line of people with no personal knowledge at a click of a mouse.

Eskridge is one of the nation's top scholars and teachers, of a highly-reputable name and integrity. Period.

Similarly, on Eskridge's committee there were reputable people with impeccable - IMPECCABLE - credentials. How can anyone assume, or hint that all those committee members, or even a majority of the committee, or that a majority of the Virginia faculty in the 1980's are or were homophobes? Saul Levmore, a productive and well respected scholar, who later joined the faculty at Chicago law school, and is now the Dean there; Robert Scott, one of the pioneers and to this day an active leader of law and economics of contracts, extremely productive and respected scholar, later Dean at Virginia and now a member of Columbia law school; Ed Kitch, a similarly well respected scholar and person, who came to Virginia from Chicago law school; Michael Dooley, a well respected corporate law scholar who has been chairing the graduate program and done much to promote international diversity; Richard Merrill, a well respected scholar, later Dean at Virginia, who has recently signed a public letter denouncing homophobia. All of these - and arguably what would have to be more than half the Virginia faculty in the 1980s - homophobes? Really? You have got to be kidding.

And, mind you, Mahoney is an extremely well respected scholar and person nationally and world wide, and he could sit today pretty much on any faculty in the US if he just wanted. His good reputation and integrity go to the moon. Just like Eskridge has his good reputation on the line, so does Mahoney.

So what happened here? I don't know. But often times reputable people honestly disagree, and have different interpretations of why certain events happened. In light of the caliber of the people involved, most reasonable guess seems to be good-faith professional difference of opinion. Most likely, the committee did not see in Eskridge's work the merit that Eskridge (and perhaps others too) genuinely think that his early work showed. And this, unfortunatley, is not unheard of in and out of academia. In those days, Virginia granted, denied, and deferred tenure to candidates of all sexual orientations, if that's any consolation. Luckily for him, the deferral decision did not stop him from reaching the very top.

Outside the individuals directly involved in this 25-year old story, the more important and verifiable question for the community is what goes on in Virginia now. There is no doubt that Virginia's faculty is diverse in many aspects (gender, sexual orientation, race, politics, and religion among others), in some of these more than many peer institutions.

Anonymous said...

Really ... politically diverse?

Anonymous said...

Actually, the U.Va. faculty is one of the few truly politically diverse law faculties in the US. Along with the normal cohort of liberal faculty, U.Va. has a respectable proportion of moderate and conservative scholars. More remarkably, they seem to all get along pretty well, and seem to have all gotten along pretty well for quite a long time.

Cf. Harvard, Yale, Stanford (virtually no conservatives). But see Northwestern (political diversity, but they reportedly shriek at each other in faculty meetings).

Anonymous said...

nice use of signals! that's really awesome (and sorta confirms UVA's recent runner-up status in a certain ATL poll).

Anonymous said...

actually, he's using the signals incorrectly. "cf" means the proposition made follows by analogy from the citation. this makes no sense here. also, "but see" should be separated from "cf" by a semicolon, not a period.

Anonymous said...

Neither Prof Henderson nor Prof Merrill is a Miles (or Myles) Standish. Why has neither responded directly to Prof Eskridge's sworn testimony, likely soon to be repeated in Senate testimony on ENDA?

Anonymous said...

Why do you care so much? You're suspect, 7:49

Anonymous said...

ITT: The trolls feed themselves.


I never felt unwelcome during my time at UVa.

Anonymous said...

Anonymous 7:18, there's nothing worse than arrant pedantry, except perhaps for arrant pedantry that's just plain wrong.

Cf. simply means compare - as in compare the three schools cited with Virginia. As for the semicolon/period, it's a matter of context, and the period fit.

Anonymous said...

9:43 - Really? tell that to Justice Scalia. Read his latest book.

Anonymous said...

I hope that if Eskridge testifies further he clarifies what exactly he is alleging. As it stands, his personal story is Exhibit A for not passing ENDA. It's not clear how the alleged homophobic slur relates causally to his deferral, it's not clear that he suffered any income loss or career disruption, yet it is clear that separating out legitimate from illegitimate reasons would be a significant task. And that's assuming he hasn't embroidered the tale, consciously or not.

Anonymous said...

i'm with you, 7:42. we should also remove these protections for other whiny minority groups looking to gum up our legal system with reckless claims based on embroidered stories.

Anonymous said...

8:16, the people seriously arguing that are at the U. Chicago. As they see it, the market will take care of everything, and if one institution wrongly discriminates against someone another institution will take advantage of the opportunity created. I'm not a fan of that theory, but if you want to be analytical for just a snark free moment, Eskridge's life story looks a lot more like a case study supporting Epstein and Posner than it does like a case study for ENDA. I realize telling his story allowed Eskridge to get back at some people he doesn't much like, but I'm not seeing how it really helps pass ENDA if you parse the story he's telling. There have to be better, stronger stories to tell if what motivates you is getting the statute passed.

Anonymous said...

Assuming everything Eskridge says is true and that ENDA would have applied to his situation at the time the events occurred. Also assume he was not granted his right (assume he had the right) to be heard on his denial of tenure before that denial became final in part because of animus re: his being gay. I.e., ignore his subsequent success; view the matter as it stood on these assumptions in 1985-86 and as if ENDA were in effect then. Would he have a claim under ENDA?

Anonymous said...

I'm no ENDA or employment law expert, but I've been sufficiently upset by this that I've thought about it for a minute.

ENDA provides only a disparate treatment claim (no disparate impact).

Eskridge would claim that, because he was gay, he was treated differently from straight candidates because he was not given an opportunity to review the report and make a statement. This disparate treatment matters, he would argue, even though the committee had already reached its recommendation, because the report was filled with errors amounting to slander. An opportunity to review and correct would have allowed him to change minds on the committee and within the faculty. He would not need, I think, to show that the original report was reached due to bias, but only that the failure to give him an opportunity of review and confrontation was based on bias (although he would need to show that that failure mattered, which is to say that he could have indeed reversed the initial decision). Since the decision to deny him the right of review and rebuttal was, in his account, made exclusively by Professor Henderson, it's Iqbal/Twombly plausible that illegal animus was the cause, given Henderson's alleged use of the F slur while spitting upon Eskridge.

Eskridge would have to show that he was a member of the protected class (probably a given, even though some members of the committee likely were unaware of his sexual orientation) and that his credentials were equal to or superior to those of members outside the class who were given the tenure (something he alleges sufficiently, but would have to prove).

Virginia would have the chance to assert a legitimate non-discriminatory reason. As I think Eskridge conceives the case, that would not go to a legitimate non-discriminatory reason for getting his tenure decision wrong, but a legitimate non-discriminatory reason for denying him the process protections afforded to other, straight candidates. (Right now, I'm not seeing a good reason for not giving him that process). If they do, he would have the right to show that the stated non discriminatory reason was pretextual.

To the extent I understand this kind of law, it would be a well pleaded claim.

I love U.Va., and have always thought the world of Stanley Henderson, but this incident - even assuming significant exaggeration - does not reflect well on the University. It's really a shame.

Gotcha said...

Why do I have this funny feeling that 12:15 and 3:03 is the same person?

Anonymous said...

To 7:29 PM:

You are free to harbor all the funny feelings you care to, but as to yours recited in your 7:29 pm post, it is dead wrong. I do not know what the acronym ENDA stands for much less what the bill says.

/s/ 12:15 pm