Feminist Law Prof Scott Moss (Marquette Law School) has posted to ssrn his article “Against ‘Academic Deference’: How Recent Developments in Employment Discrimination Law Undercut an Already Dubious Doctrine,” 1 Berkeley J. Empl. & Labor L. (2006) Here is the abstract:
When the defendant in an employment case is a college or other institution of higher education, the plaintiff usually will face an “academic deference” argument. Citing the importance of their “academic freedom,” defendants and sympathetic courts have asserted that federal courts should decline to “invade” higher education with “federal court supervision.” Whether or not courts cite the “academic deference” doctrine expressly, they certainly have proven hostile to professors’ claims of discrimination, dismissing as a matter of law claims that seemed quite strong, or at least solid enough to allow a factfinder to rule either way. Indeed, empirical evidence shows that faculty plaintiffs rarely prevail in civil rights cases. The bulk of the “academic deference” precedents are gender discrimination cases, which illustrates the extent to which the doctrine has been a significant barrier to the use of Title VII to redress the gender segregation that has proven so persistent in academia and various professions.This Article argues that courts should reject the entire idea of a special “academic” deference to employment decisions challenged as discriminatory.
The full article and abstract can be downloaded here.
-Posted by Bridget Crawford
