Friday, October 02, 2009

Law Weekly: "Prof. Stanley Henderson, who chairs the Appointments Committee, said student criticism of recent tenure recommendations 'hurts'"

Following a previous story, Did Homophobia Cause a Law School Professor to Jet? --

Every time there's a major controversy about something that happened in the past, there's a good chance that the Law Weekly was on it. The imbroglio stirred by Professor Bill Eskridge's testimony before Congress last week - where he argued in favor of passing the ENDA of 2009 and alleged that the Law School denied him tenure because he is gay - is no exception. Consistent with the Law Weekly's policy, we have reproduced the article in full:
How the Law School Tenure Game is Played
By Greg Giammittorio
Virginia Law Weekly
Friday, January 31, 1986
Last semester on two separate occasions the Law School's 42 tenured faculty met to decide whether or not they would ask the Office of the Provost to confer tenure on Assistant Professors William Eskridge and Gary Peller. Each case was reviewed individually. Both could have received a positive recommendation, but one did not. That one was William Eskrdige, and his decision subsequently led to an outbreak of student dissent and unhappiness which Law School Dean Richard Merrill characterized as "substantial."
On December 3 [1985] Dean Merrill picked up the phone to call then out-of-town Professor Eskridge and tell him that instead of tenure, the faculty, upon the recommendation of the Appointments Committee, had voted to recommend a reappointment for either two or three years.
"Eskridge is the finest classroom professor I've ever had and the best prepared," said one student who disagreed with the faculty's decision. "It's not by chance that there's always a line of students outside his door. The Law School missed a great opportunity . . . they'll be extremely lucky if he decides not to leave and go elsewhere."
Merrill's phone call was the culmination of an arduous Law School screening process, the workings of which are somewhat shrouded in mystery. One year before this formal process starts the candidates are advised by a small group of colleagues. They undergo a mock analysis that offers feedback and provides suggestions to help prepare them for their upcoming candidacy.
The actual tenure assessment procedure begins when the Dean and the Appointments Committee Chairman assemble a subcommittee of four tenured faculty whose job, according to Appointments Committee Chair Stanley Henderson, is to "thoroughly examine the candidates entire record of affiliation with the Law School." The Subcommittee's investigation focuses on three areas: scholarship, teaching, and service to institution. Teaching is reviewed primarily by interviewing students and sitting in on the candidate's classes. Tenured faculty review scholarship by personally critiquing all published and unpublished academic writings. They judge service to institution by examining a vast array of things which include academic interaction with colleagues, the candidate's reactions to criticism and suggestions, intellectual conversations, and willingness to critique others' work. Basically, as Henderson described it, "it includes anything that shows how good a player[sic] one is at doing jobs that need to be done. The candidate and the candidate's record are going to have to be sufficient tow in the respect of the tenured faculty."
Dean Merrill estimated that the elements are roughly weighted - "40 percent scholarship, 40 percent teaching, 20 percent service to institution." However, each faculty voter is free to weigh any element as they see fit.
After a subcommittee report is drafted, it is transferred without recommendation to both the 11 member faculty, including Henderson, Abraham, Dooley, Kitch, Kneeder, Levmore, Lilly, Merrill, Ravenell, R. Scott, and Wadlington. That report, says the Administration is privileged information. At the Appointments Committee level the candidate is discussed and a second report including a recommendation is drafted and sent to each faculty voter. This too is off limits to students. The candidate, however, is free to request a copy of both reports. At this point in the candidacy, on November 23, Assistant Professor William Eskridge was invited to Merrill's office where both the Dean and Chairman Henderson told him the recommendation had not been in favor of tenure. Henderson called the decision one of "substantial agreement."
Shortly thereafter, disgruntled students began drafting unsolicited letters and petitions. According to Dean Merril, comments came from "the Law Review and three journals, the Legal Assistance Society, the Law Women, and the Student Funded Fellowships." Merrill said letters were also received from SBA President John Moore "and satisfied clients of the Clerkship Committee," which Eskridge had chaired.
Henderson indicated that he read the letters and they then "became part of Eskridge's file," which was "passed on to the (tenured) faculty."
Finally, according to Merrill, "three hours of intense, frank, and yet sympathetic discussion took place among the entire voting faculty. The result, wrote Merril in answer to Moore, was the faculty's' decision to "recommend appointment so that [tenure] could be examined when the record was more complete than at the present time." Though the Law School rules make it clear that the decision necessarily passed by at least a majority vote, Merril decline to disclose the final tally.
Many students were shocked by the decision. One student described her reaction as, "What, are you serious? What is going on here?" Ben Tompkins, a third-year student in Eskridge's Legislation class, mirrored several students' response when he said, "Everyone expected him to get it - among students."

There is almost universal agreement that Eskridge has, in the words of the Appointments Committee member Graham Lilly "a significant teaching strength." Lily also noted that it was not surprising that students would protest the decision because teaching is "the only point of interface [students have] with the candidate."

Although Merril admits that "There has never been doubt that Professor Eskridge is a very fine teacher," he hinted that the problem in fact lay somewhere else. The Provost tenure policy reads, "In research, there should be evidence of a body of work of sufficient quality and quantity which has produced at least the beginning of a national reputation for significant and creative contributions to the candidates field of research, and there should be evidence of continued growth." "This is a high standard," wrote Merrill. "The tenured faculty were not collectively prepared to conclude that Professor Eskridge yet had reach it, though it will not surprise you that some would have voted to recommend tenure had a decision on this issue been essential yesterday.

Henderson added that there were "positive and negative things in all three categories, as it is with almost every candidate the principal was scholarship."

However, some students, who asked not to be identified, began to think, as one said, "there's got to be something going on here." They say that Eskrdige's scholarship is substantial and of a high calibre. To explain the decision, they point to the formation of political factions among the professors. Two reasons Eskridge's candidacy failed, they contend, are personality conflicts fueled by contrasting styles and a growing number of vocal Law and Economics professors with whose theories Eskridge sometimes conflicts.

Henderson admitted that he too had heard student rumors of political design, but said "that this is what the case is about is absolutely false." Lilly, said, "it just turns out that we do have quite a few [law and economics people], but we have more outside [that camp] than in." He characterized the student allegations as "not well taken." He noted that the faculty was too "diverse" and "there's too much individuality of mind."

"A conscious effort is made to achieve balance on both the subcommittee and the committee," said Henderson. "Ideological homogeny has not adversely affected any tenure candidate, including Professor Eskridge. I can't remember a case with more due process, fairness considerations." If students think we would operate otherwise, he said, "that hurts a lot."

Henderson said he agreed that there are difficulties when forty-two people try to ascertain if someone is going to achieve a national reputation. "The principal audience [of the candidates work] is people here," he said. "They read it and reread it. It is a problem, but a universal problem." However, he noted, "the faculty here know lots of people, have lots of conversations. Word gets around when one is doing good work. There are pretty clear ways of knowing people are developing a national reputation. Internally, we are very well equipped to evaluate, but we do go outside. The evaluation doesn't end up skewed or flawed because it's done by our own people." Newly tenured Professor Gary Peller, however, said the process is "subjective."

Dean Merrill stated, "Reappointment wouldn't have been offered without high hopes of [Eskridge's future] success," and "if professor Eskridge accepts reappointment - - we will all be beneficiaries." Lilly commented that "keeping Professor Eskrdige was a decision that he was a positive contributor and is likely to continue to be one."

Regardless of Eskridge's future, though, this decision has created a rupture as to the fairness of the tenure procedure. Some students now believe that the Administration "should open the process up to student scrutiny. Students should have access to the reports of the committees."

Technically, there has been no final determination of Eskridge's case, though the Law School's deliberations have ended. The Dean's office will not transfer the report containing the recommendation to the Provost until the February first deadline.

Further, Dean Merrill pointed out that Provost has overturned some schools' recommendations. But Henderson noted that Provost has not overturned a Law School tenure decision since he has been here. He joined the faculty in 1970.

Professor Eskridge would not comment on whether he would attempt to appeal the decision or on any other matter relating to the story, except that he was aware that he could request copies of the subcommittee and committee report. He has, in fact, asked for both.

A substantially different plan for avoiding future students outbreaks in similar situations was offered by Gary Peller. "The creation of hierarchies," he said, is not conducive to the communal spirit of the institution. No one or everyone should have tenure."
So there you have it - sorry for the typos. Some interesting points is that the homosexuality issue is not mentioned (although Eskridge did say that he was not "out" at the time), although the issue of politics is (it's not the first time the "Law and Economics" camp has been the source of controversy). There's no mention of the spitting incident, either, although it's clear that plenty of students were upset about the denial of tenure alone. There's a good deal of focus on the significance of Eskridge's publications, which he defends in his testimony.

Did Homophobia at the Law School Cause a Professor to Jet?


Anonymous said...

I'm an old alum, but half-seriously I'm not sure who runs this blog but for those that are in charge can you improve your spelling and grammar? You make Elie from look smart. It isn't just this column:

"fueld" (in bold)

it is practically every column.

Either get better or stop using UVA's title.

Rule 12 (f) said...

The typos are unfortunate, I fixed the one you mentioned. We apologize for them.

I had to transcribe that piece by hand, typos will happen. If you feel that they present an overwhelming problem, you are free to stop reading UVA Law Blog.

Anonymous said...

It's a blog run by 1 student on his free time. For fun. Cut the guy some slack.

And who gives two sh*ts about Elie or ATL. So sick of that steaming pile of yellow journalism. It feels wrong even typing 'journalism'...

Anonymous said...

"I had to transcribe that piece by hand, typos will happen."

I understand, but it is almost every piece you post. I can assure you when you work in the real world this will not be tolerated, just a "friendly" reminder from an alum.


Anonymous said...

Getting back to the substance, my respect for Stanley Henderson just took a dive. I find it hard to visualize him spitting on a colleague, but there it us.

Anonymous said...

4:51 / 5:43: Your post does not seem 'friendly' to me. 12-f no doubt knows the difference between product produced for a job and stuff that goes up on a blog. Personally, I think he does a good job.

Rule 12 (f) said...

"I can assure you when you work in the real world this will not be tolerated, just a "friendly" reminder from an alum."

Understood. We are working to minimize typos here.

Anonymous said...

"Your post does not seem 'friendly' to me."

It is. I'm not joking, I love UVA and have a house in Charlottesville. I don't care if you work for Cravath, C&B, H&H, Dechert, DLA Piper or a firm that isn't in the V-100, if you work for a law firm and bill out at $300+ per hour, you can not make spelling or grammar errors, and a friendly reminder to all current UVA students, and not just the fellow that created this blog (and I agree he/she does a good job), you can and will be fired within a few months if you are not careful with your work.

You can take my advice or leave it.

Anonymous said...

Apples and oranges. Typos in professional work product matter. Typos in your grocery list don't. Don't waste time proof reading a blog. Spend that time recharging your batteries or on your professional work product.

Anonymous threats about how you will pay in the real world are just bullying.

Judgment, including judgment about when to sweat the small stuff, matters a lot more than proofing skills.

Anonymous said...

Yo, spelling stickler! Please stop distracting us from the main issue, which is not about spelling.

Anonymous said...

FWIW, I'm guessing the "ours" in the post should've been "hours."

P.S. Why are you transcribing by hand in 2009 anyway? There is plenty of free (or cheap, if you don't like the adware) programs that will quickly turn scanned print into .htm/.doc/.pdf text.

Anonymous said...

If you have time to post not one but TWO comments about a student's spelling on a blog, your law career and personal life must be in the shitter. Good luck on your fourth job and third wife, 4:51.

Anonymous said...

Even if it's harsh criticism (which I do not concede it is), it's pathetic that students can't take it gracefully, or respond to it without devolving into personal attacks. The worst part is directing that kind of behavior against an alum.

I think Rule 12(f) and his friends are doing a great service to students. I also appreciate the fact that this is not the first time he has transcribed old Law Weekly articles by hand, so that people can discuss issues intelligently. But I don't think asking someone who is reporting on an issue to spell-check is that radical either.

By the way, there is still a typo in the title - "reccomendations."

Anonymous said...

I was one of those who responded critically (apples and oranges). I'm not a student. I'm an alum (law review, coif, S.Ct. Clerkship) who made partner in a firm both large and exclusive.

I responded not because I can't take criticism (although, in truth, I can be a bit touchy) but because the gratuitous bullying criticism might be misleading and harmful.

Accuracy matters in the practice of law, and accuracy in small details can make all the difference. That said, carrying an OCD obsession over into every aspect of one's life can be corrosive and draining. Burn out is an issue in our profession, and one way to avoid it is to keep clear what matters and what does not matter.

Another issue on our profession - perhaps made worse by the current economy - is the prevalence of bullying partners and senior associates who inflict their own unhappiness on those under their control. Again, it is important for young lawyers to learn that they do not always need to kowtow to jerks.

Last but not least, if you can't take a little corrective criticism yourself, don't be so quick to dish it out. I would still be wondering who spat on Eskridge but for the excellent work done by 12(f).

Anonymous said...


How about getting us some jobs? With your prestigious accolades I'm sure you can pull some strings.

Anonymous said...

Spelling stickler (first poster): Did you reread your first sentence in your spelling critique? Two "buts" without any punctuation separating the phrases...

Anonymous said...

Mahoney's put out a response which can be found on Brian Leiter's blog.

Anonymous said...

Speaking of faculty controversies, anyone seen the angry screed/grievance Leslie filed? I particularly enjoyed the McCarthyism references. The funniest part of is Leslie would have people believe he thought/thinks McCarthyism was a bad thing.

Anonymous said...

Hey, just want to say hi. I'm new here.