United States District Court, N.D. Illinois, Eastern Division
JEFFREY COLE, Magistrate Judge.
In 2010, Dr. Namita Goswami, applied for tenure in DePaul University's Philosophy Department. Her application was rejected by a majority of the tenured faculty in the Department by a vote of eleven to seven, with one abstention. The majority's rejection "rest[ed] largely on the quality of [Dr. Goswami's] research and what this says about her ability to train doctoral students in philosophy. The view of the majority [was] that the research is weak, incoherent, and lacks a conceptual framework." ( Pl. Br., Ex 4 at 18).
As part of DePaul's multi-level tenure process, the University Board on Promotion and Tenure then considered the matter, ultimately recommending against tenure. The Board agreed that Dr. Goswami's scholarship was deficient. ( Defs. Br. Ex. 5). That recommendation then went to DePaul's President, who had the ultimate decision-making authority. He accepted the Board's recommendation regarding "the quality of [Dr. Goswami's] philosophical work." He concluded that neither Dr. Goswami's response nor the minority opinion of the tenured faculty in the Department of Philosophy, nor the College Committee's response "adequately answers the substantive judgments made in the Department's majority analysis." ( Pl. Br. at 5, Ex. 6).
Not surprisingly, Dr. Goswami has a very different view of her capabilities and what underlay her rejection by DePaul. It is her contention that she deserved to be awarded tenure and that DePaul's action was motivated by an assortment of discriminatory motives: gender, race, color, and national origin. ( Amended Complaint, ¶ 1). In support of her claims, she plans to introduce the testimony of six professors - four philosophy professors, one literature professor, and one women's study's professor - from other universities.
In their Rule 26(a)(2) reports, they have discussed Dr. Goswami's published articles, and have praised her work and her potential importance as a scholar in the recondite field of postcolonial feminist theory. As often occurs in cases like this, they have done so in largely conclusory terms, which lend themselves to "exaggeration, " and "extravagan[ce]" of expression. Zahorik v. Cornell Univ., 729 F.2d 85, 93 (2d Cir.1984). They have variously described her work in such undeniably subjective terms as: careful, innovative, vital, thought provoking, outstanding, wide-ranging, imaginative, courageous, solid, careful, excellent, original, high quality, strong, bold, ambitious, sophisticated, top-notch, lucid, eloquent and breathtakingly brave.
As we shall see, all the cases hold that assessments of "scholarship" by universities are inherently subjective and not measurable by objective criteria. See infra at 17-19. Nonetheless, the plaintiff insists that DePaul's assessment of her scholarship is based on objective and thus measurable criteria, ( Pl. Br. at 10-11, Ex 4 at 18), and therefore her witnesses' opinions being themselves "objective" are admissible to show that the criticisms of her scholarship were not merely inaccurate, but were "false" ( Pl. Br. at 2, 10, 13, 18, 19), and "so plainly wrong" that they could not have been the real reasons for her rejection. ( Pl. Br. at 11). DePaul's rejoinder is quite simple: since tenure decisions are inherently subjective, admitting the subjective opinions of other academics will prove nothing: they will merely deflect the jury's attention from the real issue in the case, which is not whether the majority members of the tenure committee were "wrong" about the plaintiff's "scholarship, " but whether DePaul's assessment was pretextual.
Perhaps the plaintiff's six witnesses are wiser than the eleven scholars at DePaul, who thought the plaintiff's scholarship deficient. After all, original genius is often "proved by the fact that we, working at our poor half thing, will impose him might and main...."Albert Schweitzer, The Quest of the Historical Jesus 2 (The MacMillan Co. 1940). Or perhaps their measure of her is not nearly as accurate as DePaul's. It matters not. The question of right and wrong plays no role in this and like cases. Magnus v. St. Mark United Methodist Church, 688 F.3d 331, 338 (7th Cir. 2012); O'Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir.2011)("The question is not whether the employer's stated reason was inaccurate or unfair, but whether the employer honestly believed the reason it has offered to explain the discharge."); Gupta v. Board of Regents of University of Wisconsin System, 63 Fed.Appx. 925, 928 (7th Cir. 2003)("To prove discrimination, Gupta must show more than that he was a qualified tenure candidate or even that the defendants' reason for denying him tenure was mistaken, ill-considered, or foolish.' He must show that the defendants' reason was a lie.").
Indeed, the law gives institutions of higher learning, like other employers, the right to be wrong, and grievously so. And more than that, it permits them to be insensitive, misguided, foolish, or even self-defeating in their employment decisions. "[I]t is not the function of the courts to sit as super-tenure' committees." Thrash v. Miami University, 2014 WL 929152, 8-9 (6th Cir. 2014).
Thus, in case after case, the Seventh Circuit and the other Courts of Appeals have refused "to review the merits of tenure decisions and other academic honors in the absence of clear discrimination. [They] have... recognized that scholars are in the best position to make the highly subjective judgments related with the review of scholarship and university service.'" Adelman-Reyes v. Saint Xavier Univ., 500 F.3d 662, 667 (7th Cir.2007). Accord, Thrash, 2014 WL 929152, 8-9; Farrell v. Butler University, 421 F.3d 609, 616 (7th Cir.2005); Colburn v. Trustees of Indiana University, 973 F.2d 581, 589 (7th Cir.1992); Jiminez v. Mary Washington College, 57 F.3d 369 (4th Cir.1995); Zahorik, 729 F.2d at 93; Kunda v. Muhlenberg College, 621 F.2d 532, 548 (3d Cir.1980); McNaught v. Virginia Community College System, 933 F.Supp.2d 804, 823-24 (E.D.Va.2013); Leach v. Baylor College of Medicine, 2009 WL 385450, 23-24 (S.D.Tex.2009).
That being the case, DePaul argues, Dr. Goswami's evidence is irrelevant and will not be helpful to the jury and thus is inadmissible. DePaul has filed a motion to bar what it calls the "scholarship experts" pursuant to Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
DR. GOSWAMI'S PROPOSED EXPERTS
We begin with Henry Schwarz, who is not a professional philosopher, but is a professor in the Department of English at Georgetown University, specializing in post-colonial studies, critical theory and cultural studies. He holds a Ph.D. in Literature from Duke University. Expressing "admiration for this gifted colleague, " Dr. Schwarz noted that his "first impressions of Dr. Goswami's work were overwhelmingly positive." ( Pl. Br. Ex. 11 at 2). He felt the quantity of Dr. Goswami's publications was high and would be sufficient for tenure at his university.
Dr. Schwarz said the quality of the journals in which she published was extremely high and their reputations "highly appropriate for the various fields engaged by Dr. Goswami." (Defendants. Br.Ex. 11 at 1). Dr. Goswami had published four articles in double-blind peer-reviewed journals - a large number, he said, for a junior scholar. ( Defs. Br. Ex. 11, at 1, 3). In commenting on one of Dr. Goswami's articles - "The Second Sex: Philosophy, Postcolonialism, African-American Feminism and the Race for Theory, " which he assigned as an optional reading in one of his courses - he noted that, while the "academy" has come to value difference in departments of literature and culture (the argument Dr. Goswami made in her article), those "same departments have been extremely resistant to hiring people of color to teach about difference...." He accepted uncritically Dr. Goswami's opinion in the article that marginalization of African-American women in the departments despite the embrace of difference was a new form of segregation. (Defs. Br. Ex. 11, at 2).
In another article that Dr. Schwarz lauded, Dr. Goswami analyzed a 1955 short story by an Urdu writer, Prem Chand. Dr. Goswami posited that India could never be truly post-colonial because of the violence of its birth - partitioning of Hindu and Muslim states - and racial mixing between Indian and English. Dr. Schwarz said that Dr. Goswami "does masterful service to the texture of the short story and is as comfortable a critic of literature as she is a high-flown philosopher of epistemology and ontology." ( Defs. Br. Ex. 11, at 3). Dr. Schwarz complimented what he perceived to be Dr. Goswami's "commitment to stylistic clarity" and her ability to express "very complex thinking in very straightforward language." He closed by complimenting what he perceived as the "unflinching critical courage" she brought to each of her "ambitious projects" and reiterated that there was no question she would receive tenure and promotion at Georgetown. ( Defendants. Ex. 11, at 3)
Chandra Mohanty, professor of Women's and Gender Studies at Syracuse University, defines her area of expertise as situated at the intersection of critical race, post-colonial, and transitional feminist studies. Dr. Mohanty began by calling Dr. Goswami the very best candidate for tenure of the 30 plus candidates she had reviewed as an outside reviewer. She found "Dr. Goswami's work to be of excellent quality."( Defendants. Ex. 12, at 1). She thought the most useful aspect of Dr. Goswami's scholarship was her analysis of post-colonial and African American literary texts. Dr. Mohanty was impressed that in two of her essays - "Shifting Grounds" and "Autophagia and Queer Transnationality" - Dr. Goswami drew attention to the completely neglected mixed-race figure of the Anglo-Indian. Dr. Goswami's "interventions [were] deeply philosophical, posing ontological and metaphysical questions of identity and difference." ( Defendants. Ex. 12, at 2).
Dr. Goswami's reading of Theodor Adorno illustrated, for Dr. Mohanty, "the boldness and originality of her scholarship." ( Defendant. Ex. 12 at 2). She was attempting to bring the fields of continental philosophy, postcolonial criticism, and critical race feminism together through their continuities in analytical approaches. According to Dr. Mohanty, "[s]he thus challenges postcolonial feminists to rethink their dismissal of continental philosophy as western' and therefore irrelevant, simultaneously challenging philosophers to look for the productive ontological and metaphysical implications of the theorization of difference in postcolonial and critical race feminism." ( Defs. Br. Ex. 12 at 3).
Her report goes on to further analyze Dr. Goswami's "larger metaphysical vision, " which "brings philosophy, feminism and postcolonial theory" "back together as these disciplines attempt to understand the subject that matters: the ground beneath our feet." She finds in one of Dr. Goswami's articles "a lucid, and eloquent statement of a project that is ambitious, bold, and original." ( Ex. 12 at 3).
Dr. Mohanty then quoted Dr. Goswami's thesis for her proposed book on philosophy, feminism, and postcolonial theory and called it a lucid statement of an ambitious and original project. Dr. Goswami wanted to argue for the "conceptually postcolonial" in Adorno's framework, thereby responding to Adorno critics who dismissed his work as "Western" and of no import to critics of colonialism. Dr. Mohanty had no doubt the project would "have a significant impact on postcolonial and critical race feminist studies, as well as on interdisciplinary continental philosophy." ( Defendants. Ex. 12, at 3).
Dr. Mohanty characterizes Dr. Goswami as a "bold, ambitious, careful and original thinker" ( Defendants. Ex. 12, at 3-4). She says that Dr. Goswami's scholarship is "wide ranging" and "showcases a bold, ambitious, and careful philosophical thinker, committed to an intellectual project that is unusual" in all the three "disclipines" she traverses - continental philosophy, postcolonial cultural/literary criticism and interdisciplinary feminist studies."( Ex. 12 at 4).
Alison Bailey is a tenured professor in the Philosophy Department at Illinois State University and director of that institution's women's and gender studies program. She points out in her report that she is not trained in continental philosophy. Perhaps that is why she explicitly refrains from assessing the quality of Dr. Goswami's writing. She has no qualms, however about voicing her opinions regarding Dr. Goswami's contributions to feminist philosophy. Significantly, she does state that philosophical writing is necessarily "clunky and jargon-laden." ( Defs. Br. Ex. 13, at 1). "This is just the nature of our profession.... ordinary language is too inexact for philosophical purposes. To remedy this we regularly develop highly specialized vocabularies to help us engage philosophical puzzles in a more exacting ways[sic]." ( Defs. Br. Ex. 13, at 1-2). This echoed Dr. Schwarz who noted that "highly specialized vocabularies of continental thought" are "required to comprehend" much of the fields in which Dr. Goswami works. ( Defs. Br. Ex 11 at 2).
But the DePaul majority obviously had a different view and found Dr. Goswami's use of jargon objectionable. Dr. Goswami's brief has made no attempt to explain how, given the specialized vocabulary known only to philosophers, the jury could possibly make heads or tails out of the competing positions of DePaul and Dr. Goswami's witnesses. And if they cannot do so, it is a contradiction in terms to say that her six witnesses will assist the jury.
Dr. Bailey called Dr. Goswami's article, "Autophagia and Queer Transnationality, " an extraordinary accomplishment, apparently because it appeared in "the top journal in Women's and Gender Studies." She did not discuss it any further than that. Dr. Bailey said that Dr. Goswami's essay "De-Liberating Traditions: The Female Bodies of Sati and Slavery, " was poised to make a significant contribution to the emerging literature in comparative feminist philosophy and postcolonial studies. ( Defs. Br. Ex. 13 at 3). Dr. Goswami's brief makes no attempt to explain how this attempt to anticipate events still in the womb of time - to borrow one of Justice Frankfurter's famous phrases - can be classified as an objective assessment.
According to Dr. Bailey, Dr. Goswami's approach - using Adorno as the "philosophical lens through which she examines both postcolonial and African-American feminist frameworks with an eye toward explaining how, despite their liberatory roots these movements operate under the same understandings of culture as the western' philosophical paradigms they critique" - allowed Dr. Goswami to show the postcolonial leanings in Adorno's work. (Defendants. Ex. 13, at 3). Dr. Goswami's "On the Limits of Postcolonial Identity Politics, " discusses the Indian American as "model minority" and how the image is used to bolster the Anglocentrism of the U.S. academy. Dr. Bailey closed by saying she found Dr. Goswami's "scholarship to be innovative, imaginative, clear, well-written, "top-notch, " and "breathtakingly brave." Hers was "the kind of voice our discipline needs if we are to answer Dr. Linda Martin Alcoff's call for philosophical pluralism." ( Defs. Br. Ex. 13, at 4). Dr. Goswami's brief makes no attempt to explain how these assertions are anything but subjective opinions.
Sarah Lucia Hoagland is a professor of Philosophy, Women's Studies, and Latin American Studies at Northeastern Illinois University, which she points out in her report is the most diverse campus in the Midwest. Why that is relevant, she does not say. She has known Dr. Goswami since 2004, but has not kept in close contact with her. She was "struck by a number of qualities of her research including its vitality, its solid scholarship, its original and thought-provoking content and its interdisciplinary value." ( Defs. Br. Ex. 14 at 1). She went on to call Dr. Goswami's body of work "original and innovative as it raises significant questions of ontology, epistemology and metaphysics." Dr. Hoagland thought it addressed multiple audiences and brought to bear "philosophical practice to many areas of significance, particularly feminist and postcolonial research." ( Defs. Br. Ex. 14, at 1-2). Like the others, Dr. Hoagland's report discusses at length the content and meaning and what she perceives to be the significance of Dr. Goswami's published works. She concludes by saying that "[o]verall I find that Dr. Goswami's work exhibits original and solid scholarship...." ( Defs. Br. Ex. 14 at 7).
Here is a sample of Dr. Hoagland's substantive explanations of Dr. Goswami's work. She begins by launching into a brief critique of Western culture and its view of any other system of thought as derivative. As a result, Western culture "promote[d] an epistemology of ignorance." Dr. Goswami work "interrupt[ed] the seminally smooth devaluation of non-Eurocentered scholarship" and "focused on subjects that matter." In "Shifting Grounds, " Dr. Goswami drew on the work of Theodor Adorno to examine the principles of identity that shaped the borders and boundaries during the Partition of "British India" into the nation-states of India and Pakistan and challenge the transparency of the compulsory binary identities "Hindu" and "Muslim." She asks what relation Adorno's identity-principle has ethically, epistemologically and ontologically to Europe's self-identity as the bearer of the burdens of civilization and history and evinces a moral concern, as did Adorno, over a commitment to remaining answerable to human suffering. (Defs. Br. Ex. 14, at 2).
Dr. Goswami addressed film and charged that if Indian film - Bollywood - was approached from a Hollywood aesthetic perspective it would be seen, "not as a distinct cultural production but as a mere naive and inferior copy, rendering it a subject that does not matter." Dr. Hoagland calls the critique a "carefully detailed expose of Eurocentric reading of a former colony's cultural production." Dr. Goswami discusses Bollywood again in "The Empire Sings Back", where she develops the concept of postcolonial whimsy to "challeng[e] the Eurocentric approach to aesthetics, in particular the practice of considering Hollywood as the paradigm." "Most interesting, " for Dr. Hoagland, is that Dr. Goswami "develops the concept of Postcolonial Whimsy as an aesthetic that does not foreground authenticity and manages to speak truths' through lies.'"
Dr. Hoagland discussed a number of other of Dr. Goswami's publications, congratulating her for her analysis of the film "Slumdog Millionaire, " arguing that "feminist theory that analyzes other people's experiences often winds up reinstating the hierarchies of the status quo, " and proposing that feminist postcolonials face the double bind of being considered terrorists yet seeking advancement in the U.S. hierarchy "head on by exposing the way they are being used to support U.S. imperialism and render as lesser or dismiss altogether U.S. feminists of color, being positioned institutionally as the model minority." ( Defs. Br. Ex. 14, at 4-5). Dr. Hoagland closed by opining that, overall, Dr. Goswami's work was original and solid ...