Brown v. Trustees of Boston University, 88-1288
| Decision Date | 01 December 1989 |
| Docket Number | No. 88-1288,88-1288 |
| Citation | 891 F.2d 337 |
| Parties | 133 L.R.R.M. (BNA) 2013, 133 L.R.R.M. (BNA) 2443, 51 Fair Empl.Prac.Cas. (BNA) 815, 52 Empl. Prac. Dec. P 39,497, 52 Empl. Prac. Dec. P 39,707, 114 Lab.Cas. P 11,840, 114 Lab.Cas. P 11,841, 57 Ed. Law Rep. 761, 29 Fed. R. Evid. Serv. 642 Julia Prewitt BROWN, Plaintiff, Appellee, v. TRUSTEES OF BOSTON UNIVERSITY, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Stanley R. Strauss with whom Charles I. Cohen, Gregory W. Homer, Vedder, Price, Kaufman, Kammholz & Day, Michael B. Rosen, Sandra S. McQuay and Goodwin, Proctor & Hoar were on brief for appellant.
John A. Beach, Thomas G. Eron and Bond, Schoeneck & King on brief for Syracuse University, Amicus Curiae.
Sheldon Elliot Steinbach, General Counsel, Woodley B. Osborne and Hanna, Gaspar, Osborne & Birkel on brief for American Council on Education, Amicus Curiae.
Robert E. Sullivan, John T. Harding, Jr., Jeffrey F. Jones and Palmer & Dodge on brief for Massachusetts Institute of Technology, President and Trustees of Williams College, Boston College, Tufts University, Suffolk University and Adelphi College, Amici Curiae.
Dahlia C. Rudavsky with whom Ellen J. Messing and Shilepsky, Messing & Rudavsky were on brief for appellee.
Beatrice Valdez with whom Charles A. Shanor, Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel, and Lorraine C. Davis, Asst. Gen. Counsel, were on brief for Equal Employment Opportunity Commission, Amicus Curiae.
Mary W. Gray, American University, Ann H. Franke, Counsel, American Association of University Professors, and William Van Alstyne, Duke University School of Law, on brief for the American Association of University Professors, Amicus Curiae.
Before CAMPBELL, Chief Judge, BREYER and TORRUELLA, Circuit Judges.
Julia Prewitt Brown, an assistant professor of English at Boston University sued in the Massachusetts Superior Court after she was denied tenure by defendants, the Trustees of Boston University ("University"). The University removed the case to the District Court for the District of Massachusetts. Alleging that she had been refused tenure because of her sex, Professor Brown contended that denying her tenure for that reason violated an anti-discrimination clause in the University's collective bargaining agreement with its faculty. A jury found in her favor on this contract claim; it awarded her $200,000 damages for the breach. Brown also brought claims for the alleged sex-based denial of tenure under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982), and under the Massachusetts anti-discrimination statute, Mass.Gen.L. ch. 151B, § 4 (1982). Applying to these other claims the finding of sex discrimination made by the jury in the contract action, the district court ordered the University to pay Brown $15,000 in damages for emotional distress, enjoined the University from further sex discrimination against Brown and other faculty members, and ordered the University to grant to Brown the position of Associate Professor with tenure. Boston University appeals from the jury verdict, the award of tenure, and the injunction from further sex discrimination. We affirm the findings of liability and the tenure award, but slightly modify the anti-discrimination injunction.
In the fall of 1974, plaintiff Brown began working at Boston University as an Assistant Professor of English Literature, on the tenure track. Tenure candidates had to teach for six years before being eligible for tenure. During the sixth year the candidate was evaluated in three areas: scholarship, teaching, and service to the university. Excellence had to be demonstrated in two of the three areas.
Brown came up for tenure in the academic year 1979-80. At this time the ground rules for tenure review were spelled out in a recently negotiated collective bargaining agreement ("Agreement" or "Contract") between the Boston University Chapter of the American Association of University Professors ("Chapter") and Boston University. The process was to last the entire academic year, progressing through a series of committee and individual reviews culminating in a review by the President of the University, who then made a recommendation to the Trustees. The Trustees made the final decision to grant or deny tenure.
Brown prepared a dossier describing her accomplishments. Under the heading "Research and Publication," she listed a book, Jane Austen's Novels: Social Change and Literary Form, a revision of her Ph.d dissertation that had been published by the Harvard University Press, and three book reviews or review essays. Brown listed "all reviews, discussions and major citations" of her book, which included a review in the New York Times Sunday Book Review, four other reviews, two "readers' reports" from Harvard University Press and a letter from Harvard University Press concerning a second printing of the book. Under "work in progress" Brown listed a proposed book about Oscar Wilde. During academic years 1979-80, the year of her tenure review, she had received a Mellon grant to research and write this book, as well as to teach at Harvard University. Brown attached to her tenure dossier the six page prospectus describing her planned study of Oscar Wilde that had earned her the $16,000 Mellon grant.
Under the category of teaching, Brown listed the courses she had taught at Boston University, including two she had developed, "Fiction and National Character" and "Freud and the Victorian Novel." In respect to advising, she stated that she advised 15-20 undergraduates in composing their class schedules, spending about an hour per year with each student. She also described her activities on a committee that assisted undergraduate English majors in choosing a graduate school, and noted that, in 1977-78, she conducted a "woman's literature discussion group for graduate students which met informally once every two weeks." In the category of service to the University, Brown noted that she had been asked to assist in editing the "Partisan Review" for 1979-80, and listed service on various Boston University committees.
The first stop for Brown's file was a committee composed of all the tenured professors in the English department. The department committee voted unanimously, by a vote of 22-0, to promote her to Associate Professor with tenure. The department chairman's rationale included high praise for Brown's teaching and scholarship. On September 14, 1979, the chairman wrote, The chairman stated that Brown's book on Jane Austen had been widely recognized by noted critics. He opined that "[i]t is rare for an older, let alone a younger, critic to write an important book on a major writer ... but Judy Brown has done so." In describing the book, the chairman noted Brown's "sensitivity to the fact that Jane Austen was a female novelist." The recommendation continued, "Professor Brown has the requisite literary tact to write about Jane Austen as a female writer without the ideological distortion and special pleading that sometimes mar such criticism."
The next review was by the Appointments, Promotions and Tenure Committee ("APT") of the College of Liberal Arts (CLA). This committee also recommended tenure, again unanimously. The committee's report described her as an "excellent teacher" and "a first rank ... scholar," saying that "she is bound to become a most distinguished and nationally recognized critic and scholar." On December 7, 1979 the APT sent its report to the Dean of the CLA. Before making his own recommendation, the Dean met with Brown. At that meeting, the Dean gave Brown the opportunity to answer criticism received in a letter solicited from an outside scholar in Brown's field. The Dean also asked Brown about the amount of time she spent advising students. After this meeting, the Dean recommended promotion and tenure. However, the Dean's report contained reservations about Brown's "historical scholarship," citing certain negative comments in a review and in the outside scholar's letter. The Dean recommended that subsequent reviewers solicit the view of an historian from Harvard University. He suggested that if the criticisms of the historical scholarship in Brown's book proved to be valid, the University should offer Brown a three year extension of her probationary period, so that her work on Oscar Wilde could be evaluated. 1 The Dean also characterized Brown's teaching as "fine," but expressed concern that she did not spend enough time advising students. The Dean sent a letter to Brown informing her that he had recommended her for tenure, but not mentioning the reservations he had expressed or his recommendation of a possible three year extension.
The week after the Dean completed his evaluation, Brown sent him a letter, along with additional material for her file. The letter dealt with the amount of time Brown spent advising students, saying that in addition to helping her advisees to prepare their schedules, she had office hours for four hours per week, of which most of her advisees took advantage. She included in the letter the names of three former advisees who would speak on her behalf. Brown also informed the Dean that her book had been nominated by the Harvard University Press, along with four others, for the James Russell Lowell Award, sponsored by the Modern Language Association. 2
Notwithstanding the Dean's reservations, Brown received a further positive vote at the next level of review, a University-wide APT, which recommended tenure and promotion by a vote of 9-2. The committee report to the Provost concluded that "Dr. Brown is a...
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