Peter Hammer, an expert in health law who is now an Associate Professor of Law at Wayne State University, was denied tenure at the University of Michigan Law School in 2002; he has now sued the University, alleging discrimination against him as an openly gay man who lived with a same-sex domestic partner.  A copy of the complaint is here.

Having neither expertise in his area of legal scholarship, nor knowledge of the particulars of the tenure decision, I can not comment on the merits.  There are some general facts mentioned in the complaint perhaps worth commenting on, but which don’t go to the ultimate merits.

The complaint notes that during the past 40 years "52 individuals have been considered for tenure [at Michigan Law] of which 48 were recommended for tenure within the standard time frame.  The only individuals not recommended for tenure within the standard time frame included one African-American woman (ultimately granted tenure after spending eight years in the rank of an untenured Associate Professor), two white women (one ultimately denied tenure and one who withdrew from consideration for tenure), and the Plaintiff (the only openly gay male to be considered for tenure)."  A few observations:

(1)  Tenure denials prior to the 1990s were extremely rare, even at the top law schools.  When I was a student at Michigan Law, there were a half-dozen-or-so senior faculty who clearly would not have been granted tenure during the 1990s.  And, of course, prior to the 1970s, top law schools clearly discriminated against both women and minorities in admissions and faculty hiring, so there were hardly any on the faculties who would have even been considered for tenure.  What that means is that the 40-year time frame is the wrong time frame for detecting a pattern of discrimination in tenure decisions.

(2)  What makes these cases so difficult is that one also needs to know something about the publication records of the individuals who did not get tenure in the normal time frame and something about the qualitative evaluation of those publications. 

(3)  The other gay men on the faculty were considered for tenure decades ago, and so it is less surprising that they were closeted at the time of their favorable tenure decision.

The law school, by the way, deemed "a substantially less prestigious institution" than Michigan in par. 22 of the complaint is the University of Wisconsin Law School.  Ouch!