U asks Supreme Court to review sex bias suit

Shira Kantor

A University legal battle nearly a decade in the making approached the doors of the nation’s highest court early this month when University counsel – in a rare act – petitioned for a review of a lower court’s decision in a sexual discrimination suit.

University General Counsel Mark Rotenberg requested the U.S. Supreme Court consider arguments that could have precedent-setting effects on the public’s ability to bring lawsuits against the University.

If the Supreme Court agrees to hear the case and Rotenberg prevails, people would be barred from suing individual regents in federal court, and it would be difficult if not impossible to bring federal sex discrimination suits against the University. The suit that prompted Rotenberg’s petition was brought against the University Board of Regents by Carlson School of Management professor Ian Maitland in 1993.

Maitland alleged his equal protection rights were violated when regents settled an earlier discrimination suit – known as the Rajender II consent decree – with pay increases to female faculty.

Maitland said faculty should be judged on the quality of their work, not their sex, and declared it “a fundamental betrayal of academic values” to do otherwise.

After years of motions in both district court and the 8th Circuit Court of Appeals, a judge agreed to hear Maitland’s claim last August.

But Rotenberg appealed in the 8th Circuit with two arguments of his own.

First, Rotenberg argued the regents as individuals should enjoy absolute legislative immunity when performing such acts as approving the Rajender settlement – something Rotenberg said qualifies as legislative.

“Whatever the merits of the Maitland case, the regents as individuals – as unpaid, volunteer public servants – should not have to face the risk of individual liability,” Rotenberg said.

Second, he challenged Title VII of the Civil Rights Act of 1964, under which Maitland is suing. Title VII allows Congress to enact laws against sex discrimination if there is enough evidence that a state entity has violated an individual’s rights.

“The issue is whether Congress had a factual basis to enact this legislation against the state in terms of sex discrimination against men,” Rotenberg said. “And we argue that there really isn’t such a basis.”

After he was twice rejected in the court of appeals, Rotenberg turned to the U.S. Supreme Court.

Maitland’s attorney, Mark Johnson, has until Feb. 7 to respond to the University’s petition.

“Clearly a claim under Title VII and under (the Civil Rights Act, section) 1983 for gender discrimination is permitted, that there are no constitutional prohibitions against bringing such claims,” Johnson said.

Despite the minimal attention the male professor’s suit has received, Johnson said it is important. He said the court’s decision could invalidate any future federal sex discrimination litigation brought against the University.

“A gender discrimination case is very fundamental,” he said. “It’s subject to the strictest scrutiny.”

Johnson disagreed with Rotenberg’s assertion that the regents should have legislative immunity.

“The Board of Regents is not like a legislature, it’s not like Congress, it’s not like a city council, it’s not elected by the public at large, it’s not making laws as such for the country or the state or the community,” Johnson said.

Maitland said he hasn’t forgotten his suit, which he said “sits in cold storage” in district court, but for now he has turned his attention to Rotenberg’s claims.

“They’re very, very esoteric and arcane issues, but they could have enormous consequences for people’s access to the courts for redress against the University,” Maitland said.

Johnson said the Supreme Court will probably decide whether to hear the case by June, but attorneys on both sides said the likelihood the petition will be heard is minute.

If the case is heard, however, Maitland said he is optimistic.

“I think it’s a bit of a long shot that I would lose both issues in the Supreme Court,” he said.

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