it please the court title seven of the civil rights act did not create an exemption for academia and in this case there's are every reason in all reasons to apply title seven with the greatest  rigor because we are dealing to mostly with the education of our children and we should not fool ourselves that the layers of review in academia for tenure somehow amus gives immunisation to academia from committing discrimination this is a race discrimination case in which the defendants in the mid to three undisputed set of facts the defendants violated their  written procedural rules and broke from academic customs on at least fifteen to twenty material points in the ten year academic tenure after cation process including using a racist  l review letter that should have been stricken and was said as much by the chairman of the department second the defendants not only excluded african americans for one hundred years but it made it to their inability to even address their hundred year history of excluding people of color and said that they needed external assistance to assist them with this horrible record of lack of diversity three no after going to mayor african american male was ever on the faculty for the entire time that dr haynes sought tenure education what they are african american professors at the university and in the school of education you're talking about the specific department no i'm talking about the entire hundred five hundred five member of the school of dr haines with tenure and there were only two in the entire one hundred years of the plus of the history of the school of education that were brought in and both of those individuals client's complaint it says that he first became aware of the discrimination on around october twenty fourth twenty fourteen you are that was an environment which is not an admission and once we got into the facts of this very fact complicated case with numerous tangles we determined that our client had first learned and first claimed of race discrimination in march two thousand and fifteen and that is the reality and the facts that's not an advertisement and after he first made the claim in march of two thousand and fifteen of race discrimination it was april of two thousand and fifteen the very next month that he filed an evo c class charge for race discrimination so under any theory of equitable  probably more promptly than most race discrimination charges filed it within a month well an amended opponents and pleadings are binding judicial ignition did see two are men and we did the evidence fit the facts that were before us and the equitable tolling is permitted for our client that he first learned first claimed in march of two thousand and fifteen that there was raised discrimination upon getting public records and in april of two thousand and fifteen he made his e o c charge so even if it is construed as a judicial admissions there are still equitable tolling for dr who know what ultimately it doesn't matter because you have your constitutional claim that's right section one nine hundred eighty one your honor and so that is the back up claim for this case of race discrimination this case is also based on the and terminal reports from the school of education in two thousand and fifteen and two thousand and twelve in which the school of education itself said that it had the inability to solve its problem of embracing sign that they were trying to remedy the problem right that they were trying to and make diversity hires and become a more welcoming place absolutely in two thousand and fifteen and two thousand and twelve they admitted the problem an intentional discrimination oh it made it to saying we haven't been able to attract and hire enough qualified black candidates which is different than admitting to a problem and a discriminatory tenure they actually said your honor in that report the internal diversity report that they had a great concern that they were able to solve that challenge and pacifically your honor said they sought outside assistance to solve that problem and the problem was embracing people of color and if you look at the mere fact of the hundred plus year history of the r u school that you keesha it had never granted tenure to any african american and indeed there was no african american on the faculty in any of the voting tiers in any of the power structure of the entire hundred and five member faculty of indian university's school of education it was an astonishing fact to learn about this situation and then that combined with the fifteen to twenty minutes violations of their own written rules of procedure that were targeted at dr haines and exclusively focused on him and not on others there was no evidence that others had suffered the same fifteen to twenty violations it makes for a resigning case to survive summary judgment and you put on top of that that only months before he applied for tenure he was given an exemplary few and his six year review has to research and then all of a sudden he comes up a cropper and that executive associate dean tells the chairperson that this tenure application needs to go down she put her thumb on the scale before the research teaching and service and the requirement for tenure is that the candidate achieve excellence in one of those areas and they get to choose which one they will and they will make their case for excellence review at i you itself didn't come out in his favor well actually it did all five external reviewers favored tenure for dr hands except for one that was recommended by his chairman and by the day in the associate dean who turned out to be unprofessional and racist and the expert to look at that looked at  said they would have struck that letter as being racist and lacking in total content and that was an external review or who was recommended to him and put on the external review letters by his being and by is chairman of the department the applicant for tenure process under the rules of the you school of education for the tenure process only permits him to provide three names there is it is not so mechanical as you list your authority will list are three it starts out that way but then when people are busy people don't feel they have the sub specially the field gets twenty and then dr hans has to rely on the goodwill good faith and mentorship that was in this case totally void because there was no mentorship or good faith indeed we found out there was anything except good faith there was bad faith by dr brush who made stereotyping comments about dr haines behind his back we found out through discovery and said can the black man even read he can't communicate well he didn't say can't have black man me he said can change he didn't he didn't i didn't see in the record any evidence that anyone said anything he may lie stereotype the man does the man read this shit he writes is exactly what he said and he cannot communicate oh horrible stereotype for an african american male the typical stereotype in history of african american males in our literature is that they're dumb lazy and sexual predators and that fit in to two of those and the stereotyping was an enormous part of this case and dr brush to fill that and dr brush was the one who recommended patricia hard drive who any context and indeed her repeated mentioning of dr hans being african american as opposed to the other external review letters that simply tried to do an objective of evaluation of scholarship she repeatedly mentioned is african american nature and i quote to you of the very unique specialist station of dr reins of corum quote she said inclusion and the tone of it was very clear that inclusion was a derogatory term meaning diversity inclusion is derogatory because she says of the very unique specialization of inclusion haneef and his identity as an african american scholar not much is new here well she didn't even have a specialty in this field so she was not well versed in saying what was new but are most important thing that this had the undertone of if not the explicit tongue of being racist was that she makes a derogatory term toward diversity and repeatedly identifies him as african american as if that some how important if in writing a case of bow burglar who broke into someone's house and that opinion says and he was a black man but there was no reason to identify the individual as a black man there is a least some racial under because there is no reason to put he was a black man that broke into the house he it was a man who broke into the house but she goes on and says that he is trying to use his african american identity to gain tenure which there was never question i will reserve my time good morning to may please the court michael terrell tapped to tennyson hollister and i along with my co counsel melissa mock here represent defendant indiana university in the individual university defendants before i address several of the arguments made by plaintiffs counsel i want to go over some undisputed facts twenty seven tenured faculty members from across the entire indiana university plenty of campus reviewed the plaintiff's application for ten nineteen of those twenty seven individuals voted to recommend against tenure at the university level which is separate and apart from the school of education the vote was nine to zero against tenure in fact at the university level the vote was far worse for the plaintiff than at the school of education where it was a split vote now after almost two years of litigation the plaintiff hasn't presented a single piece of evidence that any one of those nineteen individuals voted or recommended the way they did because of the plaintiff's race indeed as we sit here today the plaintiff has absolutely no idea what eighteen of those one thousand individuals even consider or relied upon in casting their vote or making the record recommendation because the plaintiff never conducted a new discovery directed at that very information in addition to those twenty seven individuals five members of a faculty board of review separate and apart from the school of education heard the plaintiff's grievance and determined that there were no procedural irregularities with his tenure process again a body separate from the school of education in all of these facts or undisputed and judge mckinney district court judge larry jane mckinney took those undisputed facts and entered summary judgment on behalf of defendants and we are here today asking this court to affirm judge mckinney's decision now before you even get which of these alleged irregularities the plan of can overcome two very basic legal hurdles one is title seven claim is it your honor alluded to is barred by the statue limitations equitable tolling doesn't save him he made a judicial admission and acquittal totally gives you maybe days maybe weeks but not months and he waited burden to overcome summary judgment in this case this court has repeatedly emphasized the extremely high burden on a plaintiff alleging discrimination in tenure decisions because of the very subjective nature of those types of cases here the plaintiff has no evidence of discrimination rather the plaintiff is asking this court to infer discrimination from various isolated events and incidents they had nothing to do with his race but more importantly absolutely no connection to the decision made by the ultimate decision makers now want to talk about several of the allegations of plaintiff claims judge mckinney ignore now this is a highly unusual case because the vast majority of the allegations the plaintiff raises are against dr thomas brush the chairman of his former department now why is that unusual dr brush wrote the letter on behalf of the entire department supporting and recommending tenure but the plaintiff claims dr brush was not enthusiastic enough in his support now it defies all logic that the person who would write the letter on behalf of the department recommending tenure would somehow be working behind the scenes to harm him and judge mckinney agreed now the primary attack against dr brush is that as plaintiff's counsel alluded to he recommended two external reviewers that were known to be hard graders but here are the undisputed facts the plaintiff and dr brush together selected the original twelve and these two external reviewers dr harder and dr givens were not among the original twelve dr brush only got around to recommending those two individuals along with several others after eight of the original twelve external reviewers declined to write a review so to believe plaintiff you would have to believe dr brush knew somehow eight external reviewers were going to decline to write a review regardless the plaintiff agreed with those two external reviewers he rejected several others but accepted those two it is also undisputed the dr givens wrote a favorable letter and there is no evidence that dr rush knew anything about dr hard rays reputation of being a hard grader but sense when being a hard grader in a ten year process is that evidence of racism and more importantly there is zero evidence what the ultimate decision makers that i knew the provost the vice provost of the president how much weight the even placed on that he said the players council said that dr harvey's letter was plainly races will he deposed not the ultimate decision makers but the voters at the department level and any asked him about that letter and not one of them perceive that letter is racist and they said they gave it the same w former executive assistant to the school of education the plaintiff claims that although dr alexander had no vote in the process she tried to negatively influence the vote with the primary allegation against her is that she went to dr brush and mischaracterized an external review letter and urged him to vote no there's no evidence she made any of those either of those statements because of the place race but more importantly dr brush  jess sort of except that's what she wanted to do she wasn't successful the plaintiff alludes to the history of the school of education the plan of claims judge mckinney ignored evidence that the school of education is never granted tenure to an african american male that's what they say in their papers ma theresa scrim anation case in a sense of speed of that the school of education has granted tenure to at least eight after american females at least one african american male and they've hired with tenure at least two african american males but that's not the important issue here the question is not how many african american males have achieved tenure but how many applied and were rejected we only know of one in the school of education as an african american male who applied and didn't receive tenure and that's the plaintiff as this court held in kunar versus ball state knowing the total number who have received promotion in a protected class without knowing how many in th protected class applied and were rejected is quote next to worthless close in the end the plaintiff nothing the plaintiff has cited is evidence of discrimination or pretext as this court held in black as dale a plaintiff in a tenure case who wants to allege discrimination must be able to show in order to prevail that the ultimate decision makers relied on someone who is biased in the words of this court is decisively in here there is no evidence that a single one of those twenty seven individuals who reviewed the plaintiff's application for tenure we're biased let alone is there any evidence that the ultimate decision makers vice provost provost and president michael mick robbie were decisively influence the ultimate decision makers i assume typically defer to the faculty right the faculty reviewers well in this case we don't know exactly what they did and so i don't know really the answer to that question i do know that at the university level of voting it was nineteen to zero in whether they deferred to that nine zero vote which is separate and apart from the school of education we don't know because they have not been deposed there's no evidence of that in the school of education said no after submitting it to the process at that level multiple inputs there right correct and then it goes to the larger university where we get even more input discrete reviewers harbor discriminatory animists so far as i can tell there are sporadic allegations but nothing specific to anybody with a vote in your honor that's exactly correct there is no evidence that any one of the twenty seven harbored any racial animus in making their decisions but as i said even one step removed from that there's no evidence what the ultimate decision makers even relied upon in making their decision because there's no evidence of that regard dr hans talks about evidence if not of racial animus than racial stereotyping on the part of at least a couple of the faculty members with involved with your address that dr brush to again wrote the letter recommending the reference there after seven years of employment to females that were a year after the vote in which he was very critical of the plaintiff for his performance as a faculty member and he wrote an e mail expressing his to saying or there is no racist innuendo in that e mail where he says does he not read the s he writes i mean they can say all they want to that that somehow a racist e mail it's a frustrated chairman of the department who had supported in wrote the letter recommending tenure for the plaintiff expressing his frustration on this particular individual's performance with a student and and the role that the plaintiff was playing with a particular student so and the hard drive letter again every member who was deposed in question on the contents of that letter no one found anything in that letter to be races including those who voted in favor of dr haynes for ten years now not having any evidence of discrimination or pretexts at the lower level the playing of trying to submit the expert report of dr laura kernot in the play of claims that judge mckinney abused his discretion in striking that report for the plaintiff is wrong dr pern is report was neither relevant or reliable under rule seven o two or dogbert the primary purpose the plaintiff wanted to put in dr pernice alleged expert report was to compare his research record with that of another candidate doctor and left which a white female faculty member who received tenure the year before the plaintiff appl judgment cheney struck dr person as expert report for several reasons first dr perma admitting she was an expert in the plainest feel one of the irregularities the plaintiff argues about in this case is that the external reviewers were not leaders in his field will they were leaders in his general field but maybe not his sub specialty but their own expert who they claim has the right to opine on his right to achieve tenure admitted she was an expert in the plaintiff's area but more amazingly dr purnima admitted she didn't even read the publications or articles or works by the two people she was comparing rather all she did is a simple mathematic counting exercise of how many articles they wrote teaching awards in the total amount of grant money and judge mccain was correct in saying a simple counting exercise does not rise to the level of expert testimony because it doesn't draw upon any specialized knowledge or expertise even if you ignore that the simple counting exercise doesn't rise to expert testimony the the courts in this circuit have uniformly held that a plaintiff alleging discrimination in a tenure case cannot substitute the subjective opinion of an expert for that of the tenure committee what the plaintiff was asking this court to do with dr per his opinion somebody who admitted didn't read the articles isn't an expert and simply counted is to have a veto both vote over the twenty seven individuals who actually considered in rule upon the plaintiff's tenure application in addition allowing dr perper his opinion to create a question of fact would eliminate any university ever again in a plaintiff discrimination tenure case from receiving summary judgment because all you have to do is find some tenured faculty member from across the country who would opine that i believe this individual deserves tenure and finally even if judge mckinney allowed into evidence is opinion it would not have created a question of fact and here's why if you look at her report even her own accounting shows the doctor left to which the compared to or had twelve peer reviewed articles to the plan say it chose a doctor left which had three teaching awards of the plane's two and most importantly a cho dr left which had four point one and grant money four point one million in grant money to the plaintiffs eighty six thousand dollars so even on the face of their own expert report the plaintiff was not similarly situated so that a doctor left which in one final point in order to achieve tenure at i u you have to be rated as excellent in a chosen area the plaintiff chose research but you also to achieve tenure have to be rated at least satisfactory in teaching and service it is undisputed that the pla was rated below satisfactory at every level of review above the department level and there is no evidence in the record to be found that any one of those individuals who rated  satisfactory in teaching did so because of his race that fact alone dooms his case and at the university level the vote on his teaching was eight to one that he did not achieve satisfactory which is again a minimum pre work prerequisite to get tenure in closing this is not a discrimination case rather this is a among any of the twenty seven individuals who reviewed his application for tenure and most importantly there is absolutely zero evidence that anything that the plaintiff points to these  irregularities that have anything to do with class race or had any connection to the ultimate decision made by the vice provost the provost and the president of the university  permanent did read the articles and publications of these individuals nowhere in her affidavits which are to did she ever say i did not read the the publications indeed she did but what she was an expert in is what the case law says she should be an expert in she was in the department of education she did receive a ph d from the university of michigan and she was a tenured faculty member for a long time who's testified before congress at the university of pennsylvania and is considered the most renowned expert in the tenure process including the exclusion of african americans from tenured faculty members because of the a race because guess what no african americans were in any of those twenty seven seats that they want to tell you was not racist because for one hundred years those twenty seven seats have been field with white people and if you're an african american you say cop something's rigged about this system no african americans ever get to vote or make a recommendation and they say well they're just all white people you can't say they're racist well you can when you have implicit bias experts  my opposing counsel said nothing q about dr anthony greenwald who was the father of implicit bias and he looked at all the facts in this case with all due respect to the opinion of my opposing counsel that there was no evidence of racism dr anthony greenwald an independent expert who could care less about me dr haines or this case was fully independent said yes there was racism involved in this situation and dr perna completely independent from this situation not a faculty member of him being university who was looking at what their fellow members of fact we did it i use full of education and they dr perna said there was a pre determined decision to deny tenure and that's why it had racism one more point there was reason to believe on a very practical level dr brush broke from all historical academic protocol at the i use school of education when he changed this sterile one paragraph summary of what occurred at the vote of the department that's all they did was report out minutes historically that the only thing that was ever sent to the promotions and tenure committee dr alexander deno xander came back to dr rush two months later and said hat i need a good three pager on dr haines never before had that been done in the process of a ten year application and guess what every sentence in that summary of three and a half pages was negative toward dr he had no chance to rebut that because he was blinded from his own das yeah that was one of the fifteen to twenty violations of their own written rules of procedure and it was all negative dr brush did write the public recommendation and we were mocked for saying it was an enthusiastic because he wrote a negative memo to the print promotions and tenure committee  as if he were dr d sylvester which was a fraudulent pursuit he showed the memo to the priest promotions and tenure committee as if he were doctored fisa vester yes he wrote a memo dr brushed it and then submitted it to the promotions and tenure committee as if he were dr d sylvester but he wasn't he misrepresented himself and wrote a three and a half page negative review of the vote at the department and that infected the entire process so when my opposing counsel makes these wild grog claims that there is no evidence yet there's the court that we at least should survive summary judgment then never will and individual be able to show race discrimination in a ten year review process with a history this deep in