A workplace-retaliation lawsuit heard by the U.S. Supreme Court on Wednesday has exposed divisions between higher-education groups over how to balance colleges’ freedom to make academic decisions against the need to protect the jobs of faculty members who bring discrimination complaints.
So deep is the split between the two sides that the American Association of University Professors has accused the American Council on Education and other leading college associations of misrepresenting the AAUP’s policies on workplace retaliation in a brief submitted to the court. Each side is arguing that the position espoused by the other threatens academic freedom.
Meanwhile, the Alliance Defending Freedom, an advocacy group concerned with religious freedom, and the Foundation for Individual Rights in Education, which focuses on free-speech rights, have submitted a brief expressing fear of the possible repercussions of a ruling against the plaintiff in the lawsuit, a physician suing a public medical school.
Such a ruling, their brief argues, could lead the lower courts to make it harder for faculty members to win First Amendment lawsuits against their employers, a result that “would diminish the ability of student and faculty litigants to effectively challenge unconstitutional censorship.” It predicts, “Free speech would suffer in the end.”
The central legal question in the case, University of Texas Southwestern Medical Center v. Nassar, No. 12-484, is how to determine if an employer has illegally retaliated against a worker for filing a complaint under Title VII of the Civil Rights Act of 1964, which protects people from employment discrimination based on race, national origin, sex, or religion.
The Supreme Court has been asked to decide whether federal law and its own precedents require people who are suing for such retaliation to show that the retaliation was the sole motive for an action their employer took against them or just part of a mix of reasons for it. The court appeared divided on the question of which standard to apply during oral arguments on Wednesday.
‘But for’ v. ‘Mixed Motives’
Naiel Nassar, a physician who had been an assistant professor of internal medicine and infectious disease at the University of Texas Southwestern medical school, filed the lawsuit in 2008 after being denied a job at a Dallas hospital affiliated with the school. He had sought the new job with a new supervisor at the hospital, and resigned from his old position at the medical school, because he believed his supervisor at the medical school was biased against him as an Arab and a Muslim, his lawsuit asserts.
He wrote a resignation letter accusing his boss of discrimination, in the belief that he had the new job in hand, only to find out the job offer had been revoked. His lawsuit, which accuses an administrator at the medical school of persuading the hospital to withdraw its job offer, seeks damages from the medical school for discrimination and retaliation.
In the lower courts, the university argued that Dr. Nassar had been precluded from working at the hospital because its affiliation agreement with the medical school required that all physicians at the hospital be members of the medical school’s faculty.
When the case was tried in the U.S. District Court for the Northern District of Texas, however, an administrator at the hospital testified that the medical-school administrator who torpedoed Dr. Nassar’s pursuit of the new job had acknowledged being motivated by a desire for retaliation for Dr. Nassar’s discrimination allegations.
At trial, the medical school asked the judge to instruct the jury that it could find the medical school liable for retaliation only if that retaliation had played the decisive role in keeping Dr. Nassar from getting the hospital job. The judge rejected the school’s request to apply this “but for” standard, which takes its name from the idea that the plaintiff would not have experienced the harm alleged in the case but for an illegal action.
The jury was instructed, instead, to apply a “mixed motives” standard under which it could hold the medical school liable for retaliation even if other factors had played a role in the job denial.
The jury ruled in Dr. Nassar’s favor on the retaliation claim, awarding him more than $3-million in damages. The U.S. Court of Appeals for the Fifth Circuit upheld the lower court’s decision to apply the “mixed motives” standard. In asking the Supreme Court to take up the case, the medical school noted that lower federal courts are divided on the question of which standard to apply.
Burdens of Proof
The American Council on Education has asked the court to adopt the “but for” standard in an amicus brief in support of the medical school also signed by six other groups: the American Association of Community Colleges, the American Association of State Colleges and Universities, the Association of American Medical Colleges, the Association of American Universities, the Association of Public and Land-Grant Universities, and the National Association of Independent Colleges and Universities.
The groups’ brief argues that applying a “mixed motives” standard in deciding Title VII retaliation claims would infringe on one of the key academic freedoms upheld in past Supreme Court rulings—the freedom of colleges to decide who may teach.
Using such a standard would “empower disgruntled employees to bring academic fights into the courts,” the brief says. “Judges and juries would be put in a position to second-guess academic decisions including tenure, administrative appointments, and research funding.”
It goes on to say that, because “mixed motives"-based claims “are difficult to disprove” or defeat without going to trial, “academic institutions facing such claims would face undue pressure to settle against their academic interests.”
Applying a “but for” standard, on the other hand, “would properly place the burden on plaintiffs to demonstrate that unlawful retaliation—not constitutionally protected academic choices or other factors—caused the employment actions they challenge,” the brief says.
Academic Freedoms
The group argues that faculty members who believe they are victims of retaliation generally can seek redress through colleges’ internal grievance procedures, many of which are modeled on guidelines published by the American Association of University Professors. The AAUP denies its policies buttress that assertion, however, arguing in an amicus brief submitted in support of Dr. Nassar that its policies actually espouse a “mixed motives” standard for proving claims, consistent with the standard previously applied in the case before the court.
The AAUP brief describes as “baseless” the other groups’ argument that academic freedom requires the application of a “but for” standard. It says: “Courts repeatedly have distinguished between the principle that the judiciary will not intrude into the affairs of an educational institution in matters related to academics as opposed to the need for judicial review of employment-discrimination claims at educational institutions. Academic-freedom principles do not provide educational institutions with the freedom to discriminate or retaliate against their employees.”
In a separate amicus brief submitted in support of Dr. Nassar, the Alliance Defending Freedom and the Foundation for Individual Rights in Education urge the Supreme Court to make clear in whatever decision it renders that a “mixed motives” standard is appropriate in cases alleging retaliation over speech in violation of the First Amendment. Their brief says, “savvy administrators often cloak their retaliatory actions in seemingly benign critiques of educational or professional incompetence. Rarely can one say a decision was motivated by a single factor.”
