January 4, 2010
Unsuccessful Law Faculty Applicant Sues Iowa for Age DiscriminationFollowing up on my prior post on Donald Dobkin, 56, a professor at Central Michigan University and a partner in a Troy Michigan immigration law boutique law firm who has sued the University of Iowa College of Law for age discrimination for refusing to even interview him after he responded to an ad in the AALS placement bulletin seeking a tenured or tenure-track faculty member to teach administrative law and immigration law: Mr. Dobkin has responded to the post on our sister Legal Profession Blog:
[U]nless one meets the academy's gold standard profile, as I call it, i.e. Harvard, Yale, Stanford J.D., Sp. Ct. clerkship and 1-3 years with the Justice Dept. your chances of becoming a law professor counts are slim. Long experience and knowledge as an accomplished professional counts for nothing in the hiring process. Quite amazing given the fact that law professors are given the awesome responsibility of preparing law students to become future lawyers. Accordingly, I concluded that I could not get a fair shot at landing a position under the paradigm currently utilized by the academy and that I needed to shift the playing field to one where I would have a chance, i.e the courtroom.
Assuming we can get to a jury, Iowa has a problem, because at the end of the day we will turn the trial into a question of who is more competent to teach immigration and administrative law. Is it the two younglings who had no practice experience in the field, had no or few publications in either field or myself--a candidate with 7000 cases under his belt, a graduate degree in law from an elite school, and more publications in the field than both candidates combined? Can you imagine a prospective juror, let's say a plumber from Iowa working 6 days a week to put his son through law school listening to all of this. Who do you think he is going to favor to teach his son to become a future lawyer--someone with mega practice experience and the scholarly credentials to boot--or the two neophytes who were offered the position?
Jeff Lipshaw (Suffolk) responds:
My issue continues to be the trivializing of a serious issue in the guise of an trial, which Mr. Dobkin seems to concede needs a pretext of an age discrimination claim to get to the real issue he wants to try: whether he's more qualified or competent than a newbie prof to teach immigration law. Personally, were I litigating the case, I'd stipulate that there is nobody more qualified in the world to teach and write on immigration law than the plaintiff! That's not the issue, however.
The only question in the litigation is whether Iowa had a legitimate, non-discriminatory basis for not interviewing (much less hiring) a candidate whose admittedly superior qualifications are nevertheless restricted to an extremely narrow field, and one that is not untypically covered by adjunct professors. From my earlier comment: "As I said in "Retire and Teach", there doesn’t seem to be any way out of getting long experience without at the same time getting older. Moreover, is long experience is a valuable asset in the law school segment of the process by which lawyers get trained? I'm positive based on my own teaching adventures that it is. But it's not the only element in the management of law schools to be considered, and it doesn't necessarily have to be addressed by tenure track hiring, particularly when a separate assessment of scholarly impact and potential is part of that hiring."
Scott Moss notes:
I'm sympathetic to claims of age discrimination in academic hiring. How ironic that this dude is pushing the "I'm Mr. experienced lawyer" line but killed his case with a blog post (is that a first?). The following sentence by him concedes that his injury was due at least partly to credentials snobbery, not JUST age, which means he loses (See Gross (2009).) When I was a plaintiff's employment discirmination lawyer, our standard retainer agreement said (I'm paraphrasing) "don't talk about the case without running it by us." Either his attorneys are fools for not telling him that, or he's a fool for not listening.
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I don't know about this case, but from my knowledge of law school hiring, I think it's pretty common to focus on younger candidates and toss mid-career candidates in the refuse bin without further adieu. If that's not age discrimination, what is?
Posted by: mike livingston | Jan 4, 2010 10:08:10 AM
I wonder if Jeff Lipshaw could tell us what might be a 'legitimate, non-discriminatory' reason the school could assert as a reason for not interviewing the candidate. Doesn't the plaintiff get past the prima facie hurdle by demonstrating that he's in the protected class, that he applied, he's qualified, and that the school hired someone not in he protected class? At that point it is up to the school to claim the defense of merit.
Posted by: eli bortman | Jan 5, 2010 7:39:49 AM