How I Won My Lawsuit Against the University of Colorado Part II
By 
This is part II of a three-part post.
Part I of this essay is about Dean Lolita Buckner Inniss’s role in subjecting her employer to a costly lawsuit from a law school faculty member she’s no longer allowed to supervise. But I’m not going to leave this matter without making sure some of my distinguished colleagues share the public blame for this fiasco. After all, Dean Inniss – who I had literally never spoken with prior to our meeting at which she dared me to sue the law school, despite the fact that I’m one of the most senior members of the faculty, while she had been the law school’s dean for nearly a year at that point – could never have made such a spectacular mess of all this if she had not been given the opportunity to do so by the committee that gave me such an unjustifiably poor evaluation in the first place.
The litigation discovery process revealed all sorts of interesting details as to how exactly that happened.
First, the Faculty Peer Review Committee’s written notes revealed an arbitrary and standardless process, in which different members of the faculty were subjected to wildly different standards of evaluation, for no legitimate or indeed legally defensible reason. (In fact to this very day the law school continues to violate a university rule that requires departments to use explicit standards of evaluation for this mandated peer review process).
For example, my colleague Jennifer Hendricks, who has generously given me her permission to use her name in this post, is now aware that the chair of the committee, Pierre Schlag, evaluated her performance in the following way. (Jennifer was one of a half dozen professors Schlag had primary responsibility for evaluating.) In the committee notes, Schlag writes: “Jennifer says she has a book coming out with the University of California Press in 2023, but it is not clear whether she has a contract . . .. [The] Dean should inquire about the stage of publication. If it’s not at some discernibly advanced stage–she should get [the lowest grade given out by the committee].” In fact, in the self-evaluation she was required to submit to the committee, Jennifer had documented that, far from merely having a book contract, her completed manuscript had already passed successfully through the press’s peer review process, and had been approved for publication by the review board. The book, she noted while providing a hyperlink to the entire manuscript, was nearing its official publication date. (Jennifer can see who has clicked on that link, and no member of the committee ever did). Schlag would have known all this if he had spent thirty seconds looking at the documentation she submitted to the committee, before he suggested to the rest of the committee that their colleague might be lying about the state of her book project, but apparently he couldn’t be bothered to expend that level of investigatory effort.
In fact this was a general pattern on the part of the committee, which included three women and two men: Six men “claimed,” as Pierre Schlag might have said if they had been women, to have some work in progress. With the exception of Prof. C (discussed below, who the committee clearly had it out for for other reasons), every single one of their assertions was taken at face value, even though the majority of these men provided no evidence to the committee of the existence of the work they claimed to be working on. Indeed in one case a man didn’t even claim to have work in progress: he admitted to foregoing scholarship over the summer in favor of various administrative tasks that he claimed might somehow lead to scholarship in the future. The committee described that as having work in progress.
By contrast, four women “claimed” to have work in progress. In every single case, the committee expressed skepticism about these claims.
Now to be fair, the committee as a whole decided to balance out this egregious gender discrimination in its traditional form with some contemporary innovations of its own.
Specifically, the committee apparently decided to create a more generous grading curve for certain women professors who had young children at home during the Covid pandemic, which was raging during the year of evaluation (2021). Meanwhile, this curve was not applied to men who were in identical or even more challenging family circumstances.
So in the case of Prof. A, the committee notes reveal she was evaluated in the light of the fact that she faced “significant COVID challenges with young children at home,” and should be given a higher grade because Prof. A was dealing with “extenuating circumstances: three kids at home during Covid.”
In the case of Prof. B, the committee decided to evaluate her while taking into account that she was “juggling pandemic parenting” while performing the work she submitted to the committee for evaluation.
Both these women were given the highest possible grade by the committee.
Meanwhile, men with young children at home were not, per the committee’s notes, given the same consideration as women in these same circumstances.
For example, Prof. C, who chaired the law school’s faculty evaluations committee, produced a long law review article and two other essays, and had a book well along the publication process at a major university press, was given a lower grade than Prof. A and Prof. B, despite having four children between the ages of four and ten at home during the year of evaluation. The committee made no mention of Prof. C’s parenting situation, and indeed its chair Pierre Schlag argued for giving him the lowest grade issued by the committee, before the committee as a whole settled on a mediocre grade.
An even more striking example of this sort of gender discrimination is provided by the committee’s handling of my own case. I was given the lowest grade issued by the committee – and indeed a lower grade than had been given to any tenured faculty member in any of the previous four years that the committee had existed — despite putting a book in press with a top academic publisher, producing a long and widely noted law review article, and serving on a particularly burdensome committee, even though I was on leave, and therefore had an absolute right to refuse all committee service (I agreed to serve because the previous dean had asked me to do so, when he could find no other faculty member willing to take on the assignment). I performed this work while helping care at home for my newborn infant daughter and my six-year-old son, who, because of the Covid pandemic was unable to attend kindergarten in person. Yet the same committee members who were so solicitous of Prof. A’s and Prof. B’s family situations made no mention of these circumstances when evaluating me. (The committee was well aware of my parenting situation, noting that I took parental leave for the birth of my daughter during the year of evaluation).
This pattern held throughout the entire evaluation process: men with young children at home got no credit from the committee, while the women given the highest grade by the committee appear to have been graded on a more lenient curve because of, in the words of a committee, the “extenuating circumstances” created by parenting young children during the Covid pandemic. (Whether this kind of evaluation process can give special consideration to employees with children at home in comparison to employees without them is a legally complex question. But giving special consideration to women with children and not giving it to men with children is flagrantly illegal sex discrimination).
MY BOOK WHICH IS MINE
Now if feminism teaches us anything, it’s that the personal is political. Speaking of which, when my lawyer deposed him, Pierre Schlag responded to a question about his relationship with me by volunteering the information that, for the past three decades, he had held a personal grudge against me, because he resented the way I had gone about pursuing a book publishing opportunity thirty years ago.
Even by the standards of academia, this appears to be a bizarre and petty vendetta, based on the following facts. In 1994, when I was as-yet untenured junior faculty member, and Schlag was an already well-known and considerably more senior scholar, we decided along with a third colleague to try to publish a collection of some of our previously published articles as a book. We shopped the project around to various university presses. An editor at the University of California turned the project down, but then wrote to me separately, to ask whether I might be willing to write a book of original material touching on some of the same themes.
Somehow Schlag – our project was published in 1996 by Duke – got wind of this offer, and was, for reasons that remain obscure to me (this is a rhetorical turn of phrase; the reason is that he’s a thin-skinned insecure egomaniac), was mortally offended that I would even consider doing such a thing. Apparently he considered doing so some sort of intellectual theft of “his” original book idea, or at least that’s what I’ve been told by other people (He’s never had sufficient courage to broach the matter with me). His original book idea, by the way, was that the American legal system is an appropriate object of systemic criticism. Two years later I published a book based on the theft of this idea with Oxford University Press, which is a more prestigious press than Duke, which is ultimately why this lawsuit happened 25 years later. (The chaos of butterfly effects).
The most remarkable aspect of this sordid little saga is that all this was 30 years ago, and yet this petty and absurd incident is something that to this very day is so intolerable to Pierre Schlag’s fragile ego that he was reckless and self-destructive enough to find it impossible to resist confessing his ongoing enmity in a deposition, where his own biased conduct was under intense legal scrutiny. (One thing this whole fiasco has driven home to me with special force is that law professors tend to be astonishingly bad at the whole “law” thing).
The third and final post in this series will explore the economic base undergirding the superstructure of administrative malice and incompetence I’ve been describing.