Summers Flap May Haunt Harvard In Future Discrimination Lawsuits

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Even if Harvard’s president, Lawrence Summers, manages to defuse the current crisis over his leadership, his comments about the causes of gender disparities in the sciences will haunt the university in court for years, several employment law specialists predicted.


Three Boston-based lawyers who regularly bring employment discrimination lawsuits said Mr. Summers’s remarks last month attributing the underrepresentation of women in math and science to differences in “intrinsic aptitude” between the sexes were all but certain to be raised by women who sue Harvard in the future.


“It gets used,” said one of the attorneys, Nancy Shilepsky, cutting off a reporter before he could complete his question.


“It would certainly make for some interesting depositions, at a minimum,” said another lawyer in the field, Mark Itzkowitz. “It’s grist for the mill.”


At Harvard, the university president has veto power over all decisions to grant tenure. However, Ms. Shilepsky said the statements by Mr. Summers could be admissible as evidence even in cases where he had no direct involvement. She said the 1st Circuit Court of Appeals has declared in employment cases that “the admiral is responsible for the direction of the flotilla.”


Under that rubric, a lawyer pressing a discrimination case against Harvard could attempt to use Mr. Summers’s words to argue that gender bias is pervasive at the school.


Such situations are far from hypothetical.


In 1980, Boston University’s president, John Silber, rejected a recommendation of the English department at his school that tenure be granted to an assistant professor there, Julia Brown.


Ms. Brown sued, charging sex discrimination, and won a $215,000 verdict as well as an order granting her tenure.


Her attorney, Dahlia Rudavsky, said she managed to get in front of the jury several provocative statements by Mr. Silber, including one in which he referred to the English faculty as a “damn matriarchy.” At the time, more than three-quarters of the tenured professors in the department were men.


Not all employment law experts agreed that Mr. Summers’s comments would be damaging to Harvard in the courtroom.


“I would feel perfectly comfortable defending Harvard in a case where the transcript of his statement was admitted,” said an attorney who usually is on the plaintiff’s side of such cases, Harvey Silverglate. He said he found the totality of the university president’s remarks on the issue “perfectly sensible.” Mr. Silverglate, who is also a prominent activist against political correctness on college campuses, pointed out that Mr. Summers’s comments were lengthy and raised a number of possibilities for the differing numbers of men and women in the sciences.


Ms. Rudavsky said she thought Mr. Summers’s comments unfairly minimized the role of discrimination in holding down the numbers of women in academia. “I just read the transcript, and I was really disturbed,” she said.


The attorney pointed to studies that have shown women are scored lower in music auditions when the judge knows the gender of the performer. “Even well-intentioned people are simply unable to ignore their biases,” she said.


Harvard has faced some litigation over denials of tenure, but it tends to be sued less often than other schools because of its policy directing nearly all tenure offers to scholars from outside the university. Colleges that grant tenure to their own professors are more frequent targets for lawsuits, Ms. Rudavsky said.


“I’m not saying there isn’t discrimination at Harvard. I see no reason to think there’s any less there than anywhere else,” she added.


The best-known lawsuit over tenure at Harvard was brought by a scholar who was denied a lifetime post at the law school in 1988, Clare Dalton. Ms. Dalton never gained a spot on Harvard’s faculty, but in 1993, the school settled her lawsuit by funding a gender-violence program at Northeastern University, where she teaches.


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