Paul L. Caron

Saturday, July 30, 2011

Former AG Sues Michigan State, Files EEOC Complaints Against 100 Law Schools, for Age Discrimination in Hiring

Spaeth Nicholas J. Spaeth (age 61), the former North Dakota Attorney General and a visiting professor at the University of Missouri School of Law, filed a federal age discrimination lawsuit on Thursday accusing Michigan State University College of Law of denying him a teaching job because of his age. The complaint alleges that Michigan State declined to offer him one of its 24 interview slots at the 2010 AALS meat market despite his superior academic and practice credentials compared to the three individuals the school eventually hired:
  • 1968-1972:  A.B. (magna cum laude), Stanford
  • 1972-1974:  1974 (summa cum laude), Rhodes Scholar, Oxford
  • 1974-1977:  J.D. Stanford (managing editor, Stanford Law Review)
  • 1977-1979:  Law Clerk, 8th Circuit and U.S. Supreme Court
  • 1979-1985:  Commercial litigator at two law firms
  • 1985-1993:  North Dakota Attorney General
  • 1993-2000:  Corporate partner at two law firms
  • 2000-2007:  Senior in house positions at GE, Intuit, and H&R Block
  • 2007-2009:  Executive VP & Chief Legal Officer, Federal Home Loan Bank of Des Moines
  • 2010-2011:  Visiting Professor of Law, Missouri-Columbia

Blog of the Legal Times, Former N.D. Attorney General Sues Law School for Age Discrimination in Hiring:

Spaeth had previously filed complaints with the U.S. Equal Employment Opportunity Commission against more than 100 law schools that also did not offer him an interview. Of those complaints, between 30 and 40 had been dismissed and the rest were still pending. This is the first lawsuit Spaeth has filed against one of the schools, but [his lawyer] said they expect to add more defendants to the suit or file related cases.

(Hat Tip: Donald Dobkin.)


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This guy is an idiot. I hope that he loses every one of these frivolous claims and, based on his display of stupidity, fails to ever find a job in the legal academy. I'm guessing that's exactly what will happen. He should instead take responsibility for the fact that he's not currently qualified and work on publishing something that would get the attention of law schools.

Posted by: Adam | Aug 6, 2011 9:44:30 AM

Anyone have any idea what areas MSU hired in this past year? Area of teaching is one of the primary determinants of job interviews at AALS; if the school had three corporate folks, they don't need a former AG singing songs about commercial litigation. If they didn't interview in his area, then put a fork in him, he's done.

Posted by: 2legit2prof | Aug 5, 2011 6:16:24 PM

BWB - Exhibit A for which side?

Posted by: Connecticut Lawyer | Aug 2, 2011 8:01:12 AM

As an MSU Law Professor, eight years older than the plaintiff and with more genuine corporate experience, who was hired after 30 years of practice, I expect to be trotted out as Exhibit A.


Posted by: Bruce W Bean | Aug 1, 2011 9:18:10 PM

It may be that law professors SHOULD be teaching practical legal skills, but the truth is, that's not what they're evaluated on - they're evaluated on their ability to produce legal scholarship. GM is completely right - Spaeth has no record of legal scholarship. He has an incredibly impressive list of legal accomplishments, sure, but amicus briefs and arguing before the Supreme Court are not examples of legal scholarship (even if they're arguably more important). It's entirely likely that the three youngsters hired demonstrated greater promise at producing legal scholarship, given that Spaeth has had an entire career's worth of time to do so, and hasn't. (It's hard to argue convincingly that you really do want to be a law prof and produce legal scholarship when you haven't produced any legal scholarship since 1977.)

Sure, you can definitely argue that there are a lot of problems with the priorities in law professor hiring, and that practical experience should count for more than legal scholarship. But I just don't think the way to challenge that is through individual age discrimination suits. (For one thing, colleges/universities have historically been granted a LOT of autonomy in this area - courts are very reluctant to second-guess universities' assessments of candidates' professional qualifications.)

Posted by: NK | Aug 1, 2011 10:14:06 AM

Age discrimination is rife in legal hiring of all types and at all levels. In a more rational world, this fellow would be snapped up because he has the experience necessary to train lawyers to practice law.

Posted by: Publius Novus | Aug 1, 2011 7:10:38 AM

Mr Rasmusen,
You clearly show your immaturity by calling this gentleman an idiot in your first sentence. Students of the law are best served by those who have actually done something with their degree other than write or teach. 40 years in the legal field has given me a wealth of knowledge I could impart to young law students.
When I think back to my own education, I often recall how ill prepared I was for the "real world" after years of instruction by academics with little or no real life experiences. I had to teach myself the business of law.

Posted by: Mark Sullivan | Jul 31, 2011 10:00:27 AM

I wish Mr. Spaeth godspeed and great success. The simple truth is that with his academic credentials he would certainly have been interviewed by this law school for the job he was applying for - an entry level, tenure track teaching position - if he was 25 years old. They didn't even want to interview him for one reason only - he's too old, with maybe another 5-10 years ahead of him, versus 30-40 for a young guy. That may be rational on the part of the law school, but it's illegal.

As for scholarship - it's an entry level job. Who has published articles when they start an academic career? If they hire him and he doesn't produce quality scholarship over the next 5-7 years, they can deny him tenure and fire him.

The problem of age discrimination against older lawyers is vast and not limited to law schools. Who wants to hire a 60-year-old lawyer for a senior-level job that he might only last a few years in, when they can hire a 35-year-old who can work 18-hour days for weeks on end and who might grow with the firm or company and stay for 15 or 20 years? Like I said, It's rational but illegal. Also very, very hard to prove.

So, good luck, Mr. Spaeth, and may you collect huge punitive damages in your long-shot suit.

Posted by: Connecticut Lawyer | Jul 31, 2011 5:09:47 AM

Georgiaboy, everything you say is true but the younger generation should be excused if they feel utter disdain when they see some old guy. Basically people like Mr. Spaeth were handed a great situation and they destroyed it. The country will never be a land of opportunity again. It's going to get worse and worse and until it hits rock bottom and we'll be just another group struggling along. Provable or not, a lot of people blame old white men for this, since they ran things over the past 60 years.

Posted by: anon | Jul 30, 2011 10:43:28 PM

He should get a legitimate job rather than wasting his time teaching law students who won't be able to find jobs.

Posted by: Greg | Jul 30, 2011 10:27:47 PM

Great, as if geezers weren't committing enough parasitism with medicare/social security/boomer pillaging. Now they want to be law professors too.

Posted by: anon | Jul 30, 2011 10:23:42 PM

Yes, Rosa Parks, you have a fellow passenger. Top three BA and JD, with great grades, plus one from Oxford, Rhodes scholar, law review, Supreme Court clerk .... if he'd thrown his hat into the ring at that point, it would have been a feeding frenzy. Instead he went on to gain decades of experience, serve as a state AG, argue cases in the US Supreme Court. Now he can't even get an interview. Try to explain that to a judge and jury!

Especially when the real defenses -- (1) law faculties discriminate against people who have, well, been lawyers, argued cases in SCOTUS, and done unseemly things like that; (2) our real criterion is whether we like you (which in any other business, would result in class actions, and winning ones; (3) we're intimidated by someone who has actually done things, cannot be argued because they would leave judge and jury thinking MSU Law must be insane.

Posted by: Whitebeard | Jul 30, 2011 8:38:51 PM

GM, re: "I don't get why age is a protected class justifying civil right lawsuits anyway. It's rational to discriminate on the basis of age."
GM, let me guess... you are an individual below age 45, correct? Only someone young could believe such foolishness. Age bias is rampant in America; in fact, it is one of the only remaining socially acceptable biases left, as your post so aptly proves. The coming age wave demands that we - meaning voting-age citizens - think differently about age than we have in the past. We are no longer a wealthy nation, at least in comparison with our past - which means we can no longer afford to subsidize a vast cohort of idle late-middle age and elderly people. It is in the interest of everyone - young and old - to keep people working as long as they can contribute. Working people help create wealth; the idle only consume it. The only criterion which should matter in hiring is performance. Everything else is politically-correct window dressing, rent-seeking, or similar. One could retort that the older individual costs more, but the solution to that is easy: charge him/her a greater healthcare insurance premium. Numerous surveys confirm that older employees are highly productive, and more reliable than their younger counterparts - being less prone to absenteeism, unlawful behavior, substance abuse, and just plain foolish behavior of all kinds. Wake up and join the 21st century, kid... and remember, you too will be old one day...

Posted by: Georgiaboy61 | Jul 30, 2011 1:24:31 PM

I won't comment on my own cases, but Mr. Spaeth looks deadly serious about all of this. Stellar credentials, over 100 EEOC claims, high powered D.C. employment law firm as counsel, more law schools to be added as defendants. The academy should ring the alarm bell--"general quarters", your age dam is leaking water! This lawsuit will only bring more plaintiffs into the ring. Rosa Parks move over!

Posted by: Donald Dobkin | Jul 30, 2011 1:17:00 PM

GM, all discrimination has a basis in rationality. That's precisely why there are laws against it. Without the prohibitions, employers would always discriminate.

Posted by: Al | Jul 30, 2011 11:21:27 AM

Should mention that he is a Democrat. Explains why he thinks he is owed a position.

Posted by: Bob | Jul 30, 2011 11:15:50 AM

Can't have too many intelligent teachers with real life experience, can we?

Posted by: PTL | Jul 30, 2011 10:53:14 AM


It appears that while he may not have published a ton of scholarly articles, he's certainly got more of a paper trail than the current resident of the White House.

Posted by: Johann Amadeus Metesky | Jul 30, 2011 10:41:40 AM

"Scholarship" is often requested, seldom found in those without prior law TEACHING experience, and never a hindrance to the otherwise chosen candidate. Is he a Republican? That would explain much.

Posted by: Law Prof | Jul 30, 2011 10:35:51 AM

Age discrimination is the elephant in the room. People who wouldn't dream of discriminating against a minority or woman don't hesitate to discriminate according to age.

Posted by: DADvocate | Jul 30, 2011 10:35:29 AM

Call me crazy, Eric and GM, but it sure seems to me that a guy who AG for a state would bring a ton of practical experience to a legal education. As a student I'd sure prefer taking a class from a brilliant practitioner like this (and yes he is brilliant--the Rhodes scholarship indicates that) than some academic law prof who had published a few pieces in the Texas Southern Review of Law and the Journal of Post-Sexual Legal Theories.

Posted by: Blue | Jul 30, 2011 10:33:44 AM

He's got more practical experience and knowledge to offer law students than likely most other applicants. In today's legal world, that experience should be a premium/plus, not a disadvantage. This is merely illustrative of everything that is wrong with legal education today. Legal education in the U.S. is a complete and utter mess. Time to blow it up and start with a new model.

Posted by: dean wermer, dean emeritus faber college | Jul 30, 2011 10:19:14 AM

Responding to Eric Rasmusen, I think law students would learn more from this gentleman than from a younger, published professor who has never seen the inside of a courtroom or corporate boardroom. I have been well served by my "high second tier" law school's emphasis on practice skills. Just the other day, I giggled as a coworker in his late 30's, a graduate from a top 20 law school, struggled to draft a simple one page affidavit. Perhaps an isolated incident but it sure made me feel good.

Posted by: Tom | Jul 30, 2011 9:47:26 AM

I don't get why age is a protected class justifying civil right lawsuits anyway. It's rational to discriminate on the basis of age.

Posted by: Brian | Jul 30, 2011 9:41:00 AM

I'm sorry, this guy is an idiot. If he had a scholarly record he might have a colorable claim, but he doesn't have one. Look at Page 9 of his complaint, Para 45. "Plaintiff has an impressive scholarly record..." Then it lists Amicus Briefs, internal papers, task force reports, and "many other articles in newspapers and legal publications." Then on Para 56 "Plaintiff has extensive scholarly experience in the area of tax law, including having argued one of the most groundbreaking tax law cases in the twentieth century before the United States Supreme Court and having filed over 40 Supreme Court amicus briefs." Uhhhh, and that is scholarship how?

Sorry, he might be eminently qualified on many of the hiring criteria but is utterly lacking on one of the criteria --- scholarship. Looks like that provides a non-discriminatory reason to not interview him. He claims he spent 4 years in law teaching (3 as an adjunct) but in his one year visit at Missouri he didnt find the time to write a law review article? Sure he's old, but that just means he should have had a lot more time to do some writing. I wouldn't waste an AALS slot on him either. In fact his complaint is pretty obnoxious it screams: "look at my credentials, I deserve this job." He repeatedly writes about how he "graduated from a more prestigious school" and now he's clearly pissed that his prestige didn't open this door for him.

Posted by: GM | Jul 30, 2011 9:05:15 AM

Look just at his record up to 1979--- great in law school, Supreme Court clerk. That's typical for a rookie hire. Suppose the slot he was interviewing for was for an untenured position. Forget whatever the law says about age discrimination, for this hypo. Should he be equally attractive having added the rest of his resume?

Posted by: Eric Rasmusen | Jul 30, 2011 8:45:50 AM

These suits are hard to win, but I think they probably have substance. I personally have noticed very different treatment from hiring committees when I applied at different ages. Sure, I'm a right-wing grump, but that was always true; the age plainly matters.

Posted by: mike livingston | Jul 30, 2011 6:16:01 AM