Is it unprofessional conduct for a law school faculty member to complain about discrimination?

This is a story about how a law school led by a dean who holds herself out as a leading scholar of American’s history of racial discrimination is brazenly violating longstanding civil rights laws, in a manner that any law student taking an introductory course in the subject would be expected to spot instantly on an exam.

Last spring, I met with the dean of the University of Colorado Law School, where I have been on the faculty for 33 years, for my annual performance review.  I learned at that meeting that the Faculty Peer Review Committee – a committee of faculty members who make recommendations to the dean every year regarding what evaluations should be given to individual faculty members – had recommended that I be given the lowest numerical grade that, as a practical matter, is ever given out to faculty members. 

By all the standard metrics of evaluation used by my employer to measure such things, I had had an outstanding year in terms of both scholarship and service (The third component of the evaluative process, teaching, was not taken into account because, between a sabbatical and parental leave, I had not taught classes.)  Despite this, on a faculty on which, during the five years that the FPRC has been operating, 42% of faculty evaluations have been a 5 – the highest mark – while 56% have been a 4, I was given a 3 – a mark given to the lowest 2% of performers.

I asked the dean for an explanation of this extraordinary evaluation.  The dean, Lolita Buckner Inniss, informed me that since she was “new” to her position – she had at that point been dean for nearly a full year – she was not doing any independent evaluation of the FPRC’s grades of any faculty member, including me.  (She is in fact required to do an independent evaluation under the law school’s own rules).

She informed me that the FPRC had provided her with no explanation for their grades, which again she was accepting without any further review on her part.

She then told me to tell the committee that she had asked me to ask them for an explanation of their grade in my case.  This seemed redundant, as she could have asked the committee herself; nevertheless that morning I wrote a polite and measured memorandum to the committee, conveying this request.  In its response, the committee refused to provide any explanation for its evaluation, saying that it was its policy not to do so.

A few days later, I met with the Dean Inniss.  I told her this was an unacceptable situation, and asked her to change my annual evaluation so as to accurately reflect my performance.  The dean has a unilateral right to do this under the law school’s rules, as the committee’s recommendation is no more than that. And indeed in past years it had been a common occurrence for the dean not to accept the committee’s recommendation in a particular case.

Dean Inniss flatly refused to even consider doing so.  At that point I indicated that I thought the committee’s evaluation might be a product of illegal discrimination, based on factors that could include my ethnicity, my longstanding and continuing internal criticisms of the law school’s financial practices, my parental leave during the evaluation year, or some combination of these considerations.  I also indicated that I was willing to consider asserting my legal rights, if my evaluation was not changed to more accurately reflect my performance. 

Dean Inniss, who had just told me that she could make no evaluation of my performance because she hadn’t been at the law school long enough to make an independent judgment regarding such matters, then informed me she was certain I wasn’t being discriminated against, because she didn’t believe the University of Colorado was that kind of place.  Therefore, she told me, she had no intention of investigating whether my complaints were valid, since she was sure they were not. (Dean Inniss’s academic specialty is Critical Race Theory). She then ended the meeting by practically inviting me to sue the law school, telling me that she was “not afraid of litigation.”

Five days later, Dean Inniss sent me an email, informing me she was removing me from the Faculty Evaluations Committee, because I had complained about being discriminated against in the peer review process.   Being kicked off the committee constituted a significant sanction.  Indeed, I had asked to be reappointed to the committee, on which I had served during 2021, because I had been unfairly criticized in the past for not doing enough committee work (this is in part why I had agreed to serve on it while I was on leave).  That request had been granted, and I was already working on the promotion file the committee’s chair had assigned to me.

As anyone who is familiar with employment law will recognize, retaliating against an employee for complaining about discrimination is illegal, and represents a violation of the employee’s legal rights, without regard to whether the employee’s underlying complaints about discrimination are ultimately found to have merit.

Given this overt violation of my rights as an employee of the University of Colorado, I had my attorney file formal complaints with the university’s own Office of Equity and Institutional Compliance, and with the Colorado Civil Rights Division.

That was more than half a year ago.  To this point the only formal action OEIC has taken was a request to the Provost that Dean Inniss be removed as my supervisor; the Provost ordered this to be done last August.  That the university’s own internal watchdog department has still done essentially nothing to deal with this flagrant violation of my employment rights raises the question of what role offices like  OEIC actually play in protecting the rights of university employees against illegal administrative sanctions.

The Colorado Civil Rights Division transmitted our complaint to the university, and gave it several months, including two extensions, to produce a response.  We received that response a few days ago.  In regard to Dean Inniss’s removal of me from the Faculty Evaluations Committee, the university’s lawyers explained that this action was not, despite Dean Inniss’s own written characterization of it, carried out in retaliation for my complaining about being subjected to discrimination.

Rather, the university explained, I was removed from the committee for engaging in unprofessional conduct.  This unprofessional conduct consisted of questioning the FPRC’s decision to give me an extraordinarily low grade.  The university’s lawyers argued that by questioning the fairness of my evaluation I was disrespecting the members of the faculty who had made that evaluation.  This in turn meant that, because of my disrespectful attitude toward my colleagues, I was not fit to evaluate any of them by serving on the Faculty Evaluations Committee.

If you are wondering how my unprofessional conduct, as described by the university’s lawyers, can be distinguished from simply complaining about discrimination, you are, I suppose, thinking like a lawyer – or perhaps merely like a person who recognizes total nonsense when you see it.

The university’s lawyers then went on to argue that because Dean Inniss is a person of color, who specializes in Critical Race Theory, it is implausible that she was discriminating against me illegally when she kicked me off the faculty evaluations committee after I complained about being subjected to discrimination.

Now an appropriately skeptical person would wonder – I would certainly wonder if I were presented with this narrative by another academic — what I must be leaving out of this story.  Surely it can’t be the case that the dean of a law school is taking the position that simply complaining about discrimination constitutes unprofessional conduct, for which a faculty member can be sanctioned?  Surely, at a minimum, the claim must be that exactly how I went about complaining about discrimination was unprofessional in some way – that for example I was abusive toward my colleagues in some fashion, rather than merely criticizing a few of them for a making an unwarranted evaluation of my performance.

The university’s response features no such complicating details, because no such complications exist.   A law school dean is asserting, and the university’s own lawyers signed a formal legal document repeating the dean’s assertion, that for a faculty member to complain about discrimination is by itself unprofessional conduct, for which that faculty member can be properly sanctioned. 

The moral of this story, so far, is that it appears that institutions like the University of Colorado Law School assume that the people they illegally discriminate against are going to run out of money, or emotional energy, or both, before the institution is going to be required to answer for that discrimination.

That, in any case, would seem to be the subtext of the law school’s response to our complaint. 

I wish I could say I was more surprised that a school dedicated to teaching the law feels no obligation to follow it, and instead violates the most basic rules that are supposed to protect people asserting their rights in the face of discrimination.