Lynne Bernabei and Alan Kabat co-authored an amicus brief to the U.S. Supreme Court on behalf of the NAACP and nine other non-profit legal groups, in the appeal challenging the Trump Administration’s Executive Order that banned immigration from a number of countries.

Their amicus brief argued that the Executive Order improperly promoted social categorization and stereotyping of minority immigrants, thereby endangering the lives and well-being of numerous individuals because of their religion.

On May 25, 2017, the U.S. Court of Appeals for the Fourth Circuit issued its en banc decision upholding the injunction against the Executive Order, agreeing with the plaintiffs and amicus that the Executive Order improperly discriminated on the basis of religion.  The majority opinion concluded that the Executive Order “drips with religious intolerance, animus, and discrimination.”  The government appealed both that decision and a related case to the U.S. Supreme Court, with oral argument set for October 10, 2017.

We are pleased to report that D.C. Superior Court Judge Michael Rankin issued an excellent opinion on Friday, August 18, 2017, in which he denied the defendant’s motion for summary judgment in a case against American University.  Our client, Dr. Loubna Skalli Hanna, is a Middle Eastern scholar whose work focuses on the Arab Spring and youth and women’s movements.  Dr. Hanna received a tenure-track appointment in AU’s School of International Service (SIS), and was later recommended for tenure and promotion by six external reviewers, two internal committees within SIS, the SIS Dean, and a University-wide committee.  However, in nonconcurrence with the reviews below, AU Provost Scott Bass denied tenure to Dr. Hanna.  She then brought claims of age discrimination and contract violations against AU.  Her case is one of more than four cases in which it is alleged that Provost Bass denied tenure to more senior faculty members (including the former Dean of the Kogod School of Business) because of their age, and in violation of the procedures set forth in the University’s Faculty Handbook.

The decision carefully describes the kinds of evidence that can be used to prove age discrimination and a contract violation in a tenure denial case, including qualifications evidence, comparator evidence, and evidence of Provost Bass’s scholarly writings:  “Dr. Hanna cites excerpts from Provost Bass’s scholarship addressing the problems faced by older people in the work force, such as statements that they start to depart from the workforce after reaching age 50, that they likely seek greater flexibility in their jobs, and statements suggesting that the market can be manipulated to response to these issues.  In the overall context of this action, a jury could reasonably see the statements as evidence that the Provost harbors negative stereotypes about older workers and that those stereotypes influenced his decision to deny Dr. Hanna tenure.”

The court also noted that “[p]retext can be demonstrated in a number of ways, including:  ‘citing the employer’s better treatment of similarly situated employees outside the plaintiff’s protected group, its inconsistent or dishonest explanations, its deviation from established procedures or criteria, or the employer’s pattern of poor treatment of other employees in the same protected group as the plaintiff, or other relevant evidence that a jury could reasonably conclude evinces an illicit motive.’”  (quoting Walker v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015)).  The court emphasized that “summary judgment should be granted sparingly in cases involving motive or intent.”  (citing Hollins v. Fannie Mae, 760 A.2d at 571).

AU had argued largely that tenure decisions are unreviewable – a proposition that the court rejected:  “American raises two arguments for summary judgment: that academic deference precludes this court from reviewing the Provost’s decision, and that no reasonable juror could find that the Provost discriminated.  Dr. Hanna counters that American’s argument about academic deference lacks merit because it mischaracterizes her claim, which asks the court to review the University’s compliance with its procedures, not the decision reached.  The instant dispute is a disagreement about the appropriate role of the judicial branch in enforcing the contractual and civil rights of a professor who was denied tenure.  American failed to persuade the court that this matter cannot be litigated without requiring the court to second guess the University’s assessment of Dr. Hanna’s qualifications.”

Lynne Bernabei, Devin Wrigley, and former Associate Christopher Sousa took the lead in representing Dr. Hanna, although nearly all of our attorneys and law clerks have worked on this case.  AU is represented by William Nussbaum and A.J. Kornblith of Saul Ewing, LLP.

This comes about five months after D.C. Superior Court Judge John Mott denied the defendant’s motion for summary judgment in another employment discrimination and breach of contract case against AU involving the denial of tenure.  Ivancin v. American University, No. 2013 CA 00281 B (D.C. Super. Ct. Mar. 13, 2017).