Judges Warn of Precedent in Student’s Bias Claim

(CN) - Seven 9th Circuit judges slammed a decision that they say will invite frivolous lawsuits, lower academic standards and chill professors' freedom to evaluate students honestly.

Monica Emeldi sued the University of Oregon under Title IX, which prohibits gender-based discrimination by federally funded educational institutions. She claimed that her adviser had dropped her after she complained in a memo and during a meeting with administrators about a general lack of support for female doctoral candidates in her academic department. She allegedly asked 15 other professors to work with her to no avail, and eventually had to give up her studies altogether.

The university argued that the relationship between Emeldi and her adviser had soured because Emeldi refused to follow his scholarly advice, and that her failure to obtain a degree had nothing to do with her gender.

U.S. District Judge Michael Hogan in Eugene granted summary judgment to the school, finding that Emeldi had not engaged in a protected activity and had failed to show evidence of discrimination. A split three-judge appellate panel reversed in March 2012, ruling that Emeldi had indeed provided enough evidence to suggest that her doctoral adviser had dumped her because of her discrimination complaint.

The university then sought a rehearing before a full, 11-judge panel, but a majority of nonrecused judges voted down such consideration.

Chief Judge Alex Kozinski slammed the conclusion in a six-page dissent joined by six colleagues.

"The panel majority allowed plaintiff Monica Emeldi to escape summary judgment even though she produced no evidence of causation, an element of her retaliation claim," Kozinski wrote. "In the place of evidence, the majority permits Emeldi to create a material issue of fact by speculation. This opinion undermines the pleading framework for Title IX and Title VII and erodes the well-established standards for summary judgment. Worse still, it jeopardizes academic freedom by making it far too easy for students to bring retaliation claims against their professors. Plaintiffs will now cite Emeldi in droves to fight off summary judgment: We may not have any evidence, but it's enough under Emeldi. Defendants will go straight to trial or their checkbooks-because summary judgment will be out of reach in the Ninth Circuit."

Kozinski warned that the precedent will "invite all manner of frivolous suits," and could dilute "the authority of our schools and universities to maintain standards of academic excellence among students and faculty" as it lowers the threshold for evidence of discrimination in Title IX cases.

"The relationship between professor and Ph.D. student requires both parties to engage in candid, searing analysis of each other and each other's ideas," Kozinski wrote. "Methodology, philosophy and personality often lead to intractable disputes and, when they do, the professor must be free to walk away without fear of a frivolous discrimination suit."

Noting the threat posed by Title VII litigation, Kozinski said that "the costs are even greater in the Title IX context, where the vagaries of litigation will chill academic freedom and intimidate institutions into granting degrees to undeserving candidates."

"Would any of us choose to go under the scalpel of a surgeon who 'earned' his M.D. by bullying his medical school with unsubstantiated claims of unlawful discrimination?" he asked. "Emeldi is a very, very bad result, which bespeaks a major misapplication of long-standing legal principles to the sensitive area of academia. It invites all manner of frivolous suits while further diluting the authority of our schools and universities to maintain standards of academic excellence among students and faculty. I can only hope it will not be followed by other courts considering the issue."

Judges Diarmuid O'Scannlain, Susan Graber, Raymond Fisher, Richard Tallman, Carlos Bea and Milan Smith joined the dissent. Fisher had authored the dissent back in March.

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