Hanging in the balance: Law professor fighting termination advances civil rights lawsuit

Three blocks away from DePaul’s College of Law, years of disagreement spilled over into a federal courthouse on Friday.

Professor Terry Smith, an African-American labor law and voting rights scholar, is seeking $3 million in damages in a civil rights lawsuit filed against the law dean Jennifer Rosato Perea, former DePaul president Rev. Dennis H. Holtschneider and the university in February 2018.

Smith’s lawyer argued before a federal judge that the university should discontinue its ongoing attempt to terminate Smith for what it describes as a pattern of bullying and harassment until the suit is resolved. Eric Rumbaugh, who is representing DePaul in the case, argued that the school should not have to wait to move forward with firing Smith because his continuing “incivility” is an “existential threat” to the law school.

Smith, who began teaching at DePaul in 2010, said he suffered “significant abuses” in retaliation for his advocacy for racial diversity within the law school and his outspokenness on what he sees as racial issues. He has been critical of the lack of diversity within the College of Law (COL); in a recent incoming class of more than 230 students, only nine were black, according to the complaint. Smith, currently one of only two tenured black male professors at the law school, the other being the law librarian, holds the title of Distinguished Research Professor of Law. He taught at Fordham University for  16 years and also worked at Kirkland & Ellis, the highest- grossing law firm in the country.

“The university will continue to vigorously defend itself, Dean Rosato Perea and former President Holtschneider against the lawsuit filed by Professor Smith,” a spokesperson for DePaul said.

“We continue to be disappointed that we have to resort to litigation to address DePaul’s retaliation against my client,” said Smith’s attorney, Jerry Bramwell.

Smith’s complaint alleges he has been frozen out of the law school’s power structure. In June 2010, he sought a position on the University Board on Promotion and Tenure, but then-dean of the law school John Roberts told the Faculty Council Committee on Committees, which he chaired, that no one from the law school was interested in serving on the board, according to the complaint.

In March 2014, Smith said he tried to get on the law school’s Dean Search Committee, which consisted of law faculty, alumni and other community members. According to the complaint, he was nominated to sit on the committee by law professor Sumi Cho, a colleague and frequent ally of Smith’s on racial issues who Rosato and other law faculty have framed as a co- conspirator.

When a list of nominees for the committee were forwarded to the acting provost, Patricia O’Donoghue, the two white professors who compiled the list, Susan Thrower and Steven Resnicoff, “arbitrarily exclude[d]” Smith and Cho from the list, according to the complaint.

Thrower and Resnicoff forwarded a list of 10 names to the provost that included two junior black faculty who had been at the college for less than three years and eight white faculty, according to the complaint.

Smith believed he was excluded from the list because of his history of speaking out on issues within the COL, so he filed a complaint with the Office of Institutional Diversity & Equity (OIDE), court records show.

An internal investigator found in 2014 that the stated reasons Thrower and Resnicoff left Smith’s name off the list were a “pretext for retaliation based on Professor Smith’s advocacy for diversity and against discrimination in the Law School and within the broader University community,” according to the complaint.

Three months after he had been excluded from the Dean Search Committee, Smith was unanimously nominated by the Faculty Council for a seat on the upcoming Provost Search Committee, according to the complaint. The previous provost, Donald Pope- Davis, the first African-American to hold the position in recent memory, resigned after only six months on the job.

A list of nominees was sent to Holtschneider, the then-president of the university. He approved all of the nominations, with the exception of Smith and one white faculty member, which Smith believes was just to justify the dismissal of himself. Holtschneider seated a white faculty member on the committee in Smith’s place, according to the complaint.

“When, as here, so many individuals graciously offer to serve, we simply must do the best we can to strike a balance between broad representation and manageable size,” Holtschneider wrote in an email to Smith after he inquired as to why he was left off the committee. According to the complaint, Holtschneider was given only as many names as there were open seats.

DePaul sought to dismiss the suit in March 2018. The university’s lawyers dispute Smith’s version of events surrounding the Dean Search Committee controversy. They argue that an investigator found Thrower and Resnicoff “had not retaliated or discriminated against [Smith]” by not selecting him for the Dean Search Committee. They also say the investigation was done by an independent investigator, contradicting Smith’s claim that it was done internally.

Smith said that Arlette Johnson, the internal investigator who determined he was left off the list as retaliation for his advocacy, took administrative leave before completing her report, so DePaul enlisted an outside lawyer, Rachel Yarch, to complete the report, according to court documents. Yarch had recently defended the university in employment litigation, according to the documents.

One of the central controversies of the suit surrounds the tenure applications of Julie Lawton and Daniel Morales, two professors of color in the law school. Smith maintains he opposed their promotion because he harbored serious doubts about their qualifications, but Lawton and Morales said he only opposed them because they didn’t share his views on racial politics within the COL, court records show.

Nevertheless, eight faculty members voted in favor of Lawton’s promotion to full professor and seven voted against it. Three other faculty besides Smith also voted against her application for tenure. Three voted against Morales’ application for tenure and another abstained.

Smith is seeking damages for “the multiple and redundant bad-faith investigations by DePaul’s [OIDE].” In 2017, DePaul ordered three investigations into Smith.

The university hired Nigel Telman of the prestigious law firm Proskauer Rose LLP in March 2017 to conduct the first investigation of the year into the Lawton-Morales tenure controversy. Telman cleared Smith “of engaging in any act of racial discrimination or harassment” in the course of his opposition to their promotions, though the report did find he had acted aggressively toward other faculty.

At a March 5, 2015 faculty meeting, Smith allegedly attacked and ridiculed other members of the law school. He accused Lawton of “disbelieving the concept of institutional racism,” and she asked him, for the second time, to leave her alone.

According to Lawton’s statement, he replied by saying, “I don’t give a fuck what you want! Who the hell are you to tell me that I can’t criticize you!”

In her statement, Lawton said Smith and Cho had attempted to characterize them as “a racial token pandering to the white establishment.”

One month later, in April 2017 came an investigation that is of central intrigue to both parties. They hired William C. Powers, the former dean of the University of Texas School of Law, who resigned in 2015 after an investigation found he had intervened to help admit certain well- connected applicants, some of whom had insufficient academic credentials.

DePaul successfully fought to get the Powers report sealed, claiming it contained confidential personnel information. Smith’s lawyers protested the sealing of the Powers report. The DePaulia is unable to determine the contents of the Powers report, though one thing is clear from the court records: the university wants to keep it out of the public record and Smith doesn’t.

“One of the many differences in the manner in which the parties comport is that Professor Smith has sought sunshine at every stage of the proceedings, while DePaul has sought to keep information hidden from the academic community through protective orders and filings under seal,” Bramwell said.

Smith does say he supplied Powers and Provost Marten denBoer with a list of witnesses who would “corroborate his complaints about the atmosphere at [the COL],” according to court records, but none of them were interviewed.

On Aug. 31, 2017, Rosato opened and authored her own investigation into the tenure controversy, despite the Telman report already clearing Smith of any wrongdoing five months earlier. She released the report in November 2017.

The report concluded that Smith, “acting in concert with Professor Sumi Cho, proceeded to carry out an orchestrated campaign to derail the Lawton and Morales tenure candidacies,” and that he engaged in “a pattern of bullying that rises to the level of extreme intimidation and aggression.”

Speaking specifically about Rosato’s investigation, a university spokesperson said, “the investigation was conducted fairly and objectively, according to the university’s established disciplinary process. It was motivated only by the desire to get to the bottom of the complaints about bullying, discord and toxic behavior, and to address those complaints in a way that protects the community and enables the law school to move forward together.”

Other law faculty, notably Maggie Livingston, the chair of the Tenure and Promotion Committee, claim Smith frequently used profanity and acted inappropriately and unprofessionally in the lead-up to the tenure votes. Livingston said in the report that Smith told her that “he had no use for any of [the candidates]” and called them “motherfuckers.”

Smith rebutted Rosato’s investigation. He said Rosato singled out himself and Cho for scrutiny, which he claimed she did not do for white professors who also voted against Lawton and Morales.

Smith is seeking a jury trial in the case, which both parties agree could not happen for months. Judge Andrea Wood, who is presiding over the case, will issue a decision on whether or not the court will stop DePaul from continuing with their attempt to terminate Smith on Oct. 12.