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Real Pleadings: Discrimination in Dean Search at Windsor Law?

Things are getting ugly at Windsor Law School.

One of two short-listed candidates for the Dean position has filed an explosive complaint under the Human Rights Code alleging that racial and gender discrimination explains why she was denied the position. Here is the story from the National Post, and here is the Windsor Star piece.

In another of my Real Pleadings series, here is the complaint and pleading filed by Professor Carasco.

carascoEmily Carasco alleges that her application for the Dean position was “sabotaged” by another Windsor professor, Richard Moon, who accused Carasco of plagiarism.  The law school had set up a committee to search for a new Dean, and the committee had selected two candidates, including Profesor Carasco.  However, both candidates were rejected, and the School is starting a new search.  The newspaper articles explain all the sad details of this story.

The most interesting aspect of the human rights complaint is the remedy sought.  Professor Carasco has asked the Tribunal to stop the new search and insert her as the Dean for the next five years.  Does the Tribunal have that power?

Look at the remedial section in the Code, section 45.2.  It’s super broad, isn’t it.  It says that the Tribunal can order a discriminating party to “make restitution” in monetary or non-monetary form, and even more broad, direct a party to “do anything that in the opinion of the tribunal the party ought to  do to promote compliance with the Code.”  Clearly, this could be interpreted so as to permit the Tribunal to order the Law School to make her Dean if it believes that she would have been Dean but for the illegal discrimination.

Do you think the Tribunal should interpret the remedial section in this way, and make the order even though Professor Carasco had been rejected through the Dean’s search process?

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3 Responses to Real Pleadings: Discrimination in Dean Search at Windsor Law?

  1. Dennis Buchanan Reply

    September 15, 2010 at 8:01 pm

    If the process was flawed by reason of discrimination in violation of the Code, then *maybe* there’s a pitch to be made for the Tribunal to Order that the process be fixed, and carried through again.

    On the face of the Application, she makes several inferential allegations of racism, even against unrelated non-parties: Professor Galloway changed her chapter of the casebook, citing attribution issues, and did so due to racial bias. Professor Moon raised this with the Committee, alleging plagiarism, due to racial bias. Dr. McCrone failed to provide all relevant information to the Committee due to racial bias.

    On the sounds of it, there’s no direct evidence of discrimination whatsoever. So the question is this: Especially in light of her previous conflict with Professor Moon, can she really establish indirect discrimination here?

    If she can, then maybe (though I still have my doubts) saying “Reconsider the contest, kick Dr. McCrone off the Committee, and give the Committee all the information Dr. McCrone denied them” would be appropriate. But saying “the selection process was poisoned by racially motivated allegations of plagiarism, and therefore I should be given the job”…the HRTO should not (and, I think, will not) decide for itself who should be appointed to any particular job. In cases of this nature, they might second-guess the Respondent’s conduct, and draw inferences about the reasons therefore, if it’s clearly unreasonable…but the HRTO is not a hiring committee, prepared to decide for itself what the right hiring decision should have been. See White v. Queen’s University: “It is not necessary for the respondent to demonstrate that it was correct in reaching its decision, only that it was reasonable.”

    Here’s the thing: It sounds like the Applicant’s core evidence of discrimination is based on allegations of systemic racism, built on evidence that deans, since 1967, were historically mostly white men, that the faculty is still demographically out of synch with the student population, etc.

    Food for thought:

    Law deans typically are drawn from a pool of senior law scholars – and that’s as it should be, for reasons I think self-evident. In 1967, what proportion of senior law scholars were other than white males?

    Over the decades, student demographics have more or less caught up in terms of ethnic and gender diversity. It’s a slow progression though, and it’s a slow progression with consequences in terms of the diversity of senior ranks of the profession reaching into the future. What we have to pay attention to now is retention – there’s a well-documented problem retaining women in the profession, which involves very complex and far-reaching social issues – and if we can ensure consistent retention, then the problem of white men dominating the senior ranks of the bar will be solved over time. But it isn’t something that can be accelerated, and when it’s *still* the case that most senior lawyers in the bar at large are white men, it seems an inappropriate skewing of numbers to suggest that historical (and even current!) predominance of white men in senior legal positions evidences discriminatory hiring practices.

  2. John Reply

    November 25, 2010 at 11:56 am

    One thing to keep in mind when passions become inflamed (as they inevitably do in cases like this): the question for any hiring committee is not (and should not be) “shall we hire candidate X or not hire candidate X” but rather “which of these many highly qualified candidates shall we hire?”

  3. Simon Asange Reply

    February 8, 2011 at 12:18 pm

    I think the issue of conflict between the professors should be explored further as part of the overall issue related to discrimination. My question is why did Professor Moon hold onto the information so long and wait for the opportune time to use it against Professor Carasco. I think rivalry in the faculties itself should be explored. I understand that there has been violence among faculty members in Canada and I can understand why given the animosity that goes on among colleagues.

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