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Gay Law Prof Provokes Ire in Michigan for Suing University

By Liane Kufchock

 Dec. 17 (Bloomberg) -- The University of Michigan Law School is fighting a breach-of-contract lawsuit filed by a professor who says he was denied tenure because he is openly gay.

``I am the only male ever denied tenure by a vote of the law school faculty in at least 40 years,'' said Peter Hammer, who moved to Wayne State University in Detroit, where he is a tenured law professor.

At a hearing today, University of Michigan lawyers are asking a Lansing circuit court judge for the third time to throw out Hammer's suit, which has dragged on for almost three years and cost more than $200,000 in legal fees. The fight comes after the school in Ann Arbor successfully defended its affirmative action program before the U.S. Supreme Court in 2003.

Hammer took on one of the state's most popular institutions and an entrenched public opposition to gay rights, said Ed Sarpolus, vice president of EPIC-MRA, a polling firm based in Lansing. The university's large base of alumni and students in the state are unlikely to back Hammer, he said.

``This is a state that passed a law that says employment benefits can't be extended to same-sex partners,'' Sarpolus said. ``Seventy percent of people oppose gay marriage.''

The public won't have much sympathy for Hammer unless he can prove there was no other reason he didn't get tenure, Sarpolus said.

``These frivolous lawsuits are ridiculous,'' said Patricia Goff, 57, managing partner of American Center Deli in Southfield. ``Everyone is too politically correct. It seems like the university is on top of these things and wouldn't discriminate.''

Ripple Effect

If he wins, Hammer's case could help reshape anti- discrimination laws nationwide, said Jon Davidson, director of Lambda Legal, a New York-based nonprofit group that fights gay discrimination in court cases.

It's significant that the university no longer contends that its employment manual, which prohibits discrimination, applies to the lawsuit, he said. That could affect cases in the 30 states that don't have statutes forbidding discrimination based on sexual orientation, Davidson said.

The atmosphere at Michigan's law school was hostile even though he was given assurances before accepting the job in 1995 that his sexual orientation wouldn't be an obstacle to tenure, Hammer said in an interview.

The tenured faculty voted 18-12 to grant Hammer tenure in February 2002, two votes shy of the requirement. A tenure review committee had recommended Hammer 4-1 for tenure, based on his performance in teaching, service and scholarship.

Vote Bias

Hammer is asking the judge to void the votes of professors who hold deeply anti-gay biases, so that he can be awarded tenure retroactively and receive back pay. One professor teaches Sunday school at a church that bars homosexuals, one described homosexuals in a book as a ``pariah group,'' and one said that ``gay men and women kissing is disgusting,'' according to court documents.

After Hammer sued in January 2005, one argument the university advanced was that its non-discrimination and diversity policies were suggestions rather than rules, according to briefs the university filed with the court.

Contradictory Stance

``It is ridiculous that the law school follows diversity standards set by the American Bar Association in order to be accredited, but when push comes to shove, they claim the rules are not binding on them,'' said Barbara Nevin, 56, an attorney at Milavetz, Gallop & Milavetz in Minneapolis.

The school backed off from that strategy after faculty members raised concerns, said Hammer's attorney, Philip Green of Ann Arbor. University President Mary Sue Coleman didn't return telephone calls.

``It is not appropriate for the university to comment on matters of ongoing litigation,'' said Evan H. Caminker, dean of the law school.

James J. White, the only member of the review committee to vote against recommending tenure, said in a telephone interview that his vote was based on Hammer's lack of scholarship rather than sexual preference.

Hammer's stature in the health law and antitrust field wasn't high enough for the tenure standards of an elite school, White wrote in his dissent. Hammer received his law degree and a Ph.D. in economics from Michigan.

``Professor White seemed to hold Hammer up against a law and economics template rather than a health law or antitrust standard and concludes that he must be bad at what he does,'' Boston University law professor Frances Miller wrote in an affidavit. ``I consider these unprofessional criticisms to appear in a tenure file.''

No-Grievance Policy

The university didn't investigate a grievance Hammer filed because the law school had adopted a policy prohibiting tenure- related grievances for any reason.

``He was induced to take the job because of the same-sex benefits and non-discrimination policy at the school, and turned down other offers because he relied on that,'' said Nevin, the Minneapolis lawyer, who has no connection to the litigation. ``He has a case.''

The university had spent $208,236 defending the suit as of Nov. 20, according to information received under the Freedom of Information Act.

The case is Hammer v. Board of Regents of the University of Michigan, 04-241-MK, 30th Judicial Circuit Court, Michigan Court of Claims (Ingham County).