Professor David Wellman takes the witness stand.
In his trembling hands are nine green file folders with dozens of Post-its sticking out. He awoke at 5 to review the notes, reminders of things he must tell the jury. He is testifying as an expert for the first time in his life.
Sitting in front of Wellman is Mohamed Osman Elsayed Mukhtar, the plaintiff, who has been hospitalized and sought counseling over the stress of this case. Elsayed is convinced that he was fired from his teaching job at Cal State Hayward because he is black, a Muslim, from Africa.
Elsayed’s case is shaky. There is no direct evidence of discrimination, no leaked document, no overheard insult. Just a strong feeling that something--something--was wrong when the university has ignored the recommendations of several faculty committees and two arbitrators and refused to give him tenure, citing substandard teaching. This is the same professor whom students have twice voted mass communications “teacher of the year.”
Elsayed’s lawyers say Wellman’s testimony is crucial, probably the only way to prove that the seemingly unbiased actions of university officials were discriminatory. He is a white professor who studies modern racism. Not the in-your-face racism of past generations, but the subtle, easily disguised sort.
During the trial, held in September, Wellman, 60, will tell the jury that, after decades of research, he has devised a test to decode hidden institutional discrimination. Each of those nine green file folders is devoted to a specific criterion. Wellman will use them to explain how university officials practiced a veiled--possibly unintended--bias against Elsayed.
His heart knocks around in his chest as he sits between the judge and the jury. He smooths his hair, freshly cut.
After a few minutes answering introductory questions, his mouth goes gummy. He reaches for a pitcher of ice water, only to have it cascade s over his lap, his papers, the witness stand. Jurors snicker and clerks scramble for paper towels.
Great start, Wellman moans to himself. Absolutely great.
The Only White Kid in the Neighborhood
Wellman, a UC Santa Cruz sociologist who lectures on race issues, grew up noticing race in 1940s Detroit, when his parents declined to follow other whites, who left as black families moved in. Eventually he was the only white kid in the neighborhood.
As a graduate student at UC Berkeley in the early 1960s, he studied the civil rights movement and then became part of it. He protested blacks’ exclusion from jobs in Bay Area hotels and car dealerships, and advised lawyers during Huey Newton’s trial, at which the Black Panther was acquitted of killing an Oakland police officer.
Wellman agreed with Stokely Carmichael and other militant black leaders who said whites had crucial work to do in their own communities.
His doctoral dissertation became a book called “Portraits of White Racism.” Whites in the late 1960s had learned to talk a good game about fighting prejudice and allowing equal access, Wellman wrote. But that talk shrouded resistance that surfaced whenever racial changes threatened the comfortable segregation of their jobs, their neighborhoods, their families.
“There was--is--a discrepancy between what white Americans say in the post-civil rights movement and what they do. There’s this disjunction,” he says now. “You need somebody who can help you interpret the codes that they have developed to make it look like there’s no discrepancy.”
Numerous surveys bolster that view. For example, most whites say in polls that African Americans should be able to live where they choose. But their comfort zone is fragile: They tend to leave a neighborhood once blacks make up more than 10% of residents.
Wellman developed a body of research on decoding white racism and began teaching, enduring loud, relentless objections from many white students.
They didn’t believe that their skin color afforded them unspoken, unearned privileges. After a few years, he decided to leave race research behind. It was too hard, too exhausting. He began to specialize in the sociology of working-class America and won a grant to study longshoremen in San Francisco.
A few black professors, including Troy Duster, a race expert at Berkeley, sat him down. Whites such as Wellman, they said, were vital to white studies. Blacks could not change things by themselves. Don’t leave--keep at the race thing, they urged.
Nearly two decades later, he thinks about Duster and his own upbringing and his book and his passion for race studies and wonders if it all happened that way so he could be ready for the Elsayed trial.
Glowing Evaluations From Students
Elsayed is a 47-year-old mass communications professor who was born and raised in the Muslim Nubian culture of northeastern Sudan. His coming-of-age ritual left small scars on his face and gave him tribal permission to wear waist-length dreadlocks. He speaks seven languages.
At Hayward, he taught international communications and researched media treatment of Muslim communities and figures, including Nation of Islam leader Louis Farrakhan. His student evaluations were over-the-top glowing.
He had taught at Hayward for five years when he completed his PhD and applied for tenure in 1995. Several university committees recommended that he get the permanent teaching appointment.
But one dean, Carlos Navarro, was skeptical. He hired an outside expert in mass communications to evaluate Elsayed’s work. The expert recommended tenure, but Navarro blocked it. He said Elsayed’s teaching was poor. Navarro would later become a defendant in the discrimination trial. So would university President Norma S. Rees and Provost Frank Martino, who barred the tenure appointment at higher levels. They said that Elsayed had not been published in journals on mass communications--as opposed to other academic journals--and that he was disorganized in class and did not challenge his students enough.
The teachers union took the case to arbitration in May 1997. Twice, an arbitrator found that the university had violated policy in handling the case, including Navarro’s hiring of the expert. In early 1999, the second arbitrator ruled that the university was obligated to hire Elsayed permanently.
The university refused, and a few months later sued to be freed from the arbitrator’s ruling, something it had done just four other times in its 18-year relationship with the union. The university won when a judge ruled that the arbitrators had exceeded their authority.
Elsayed had been fighting for tenure for four years. He was exhibiting heart problems, high blood pressure and severe depression. Now he filed a discrimination complaint with the federal Equal Employment Opportunity Commission, which gave him permission to sue the university in federal court. He hired Oakland civil rights attorney Fania Davis, the younger sister of 1960s civil rights activist and professor Angela Davis.
Midway through preparing the case, however, Davis decided to give up her law practice and pursue a doctorate in traditional knowledge, focusing on African indigenous cultures. Other lawyers agreed to take her cases--except Elsayed’s. They told her it was too weak to pursue.
“I was meant to keep that case,” Davis said later. “I later came to understand why.”
Looking for a discrimination expert, she checked with her old friend, Troy Duster, who recommended Wellman.
As the trial neared, the defendants’ lawyers objected to Wellman’s testimony, insisting that he was not a scientific expert, that sociology is not a science, just a social science--junk science, as some call it.
Increasingly in the last decade, however, social scientists had won permission to testify. The test: Could they present and make sense of scientific knowledge that the average juror wouldn’t already have? Could a race expert help a jury see discrimination it couldn’t see on its own?
U.S. District Judge Claudia Wilken, known to be liberal, allowed Wellman’s testimony. If the defense could use experts in mass communication and tenure, she said, the plaintiff could have a race expert.
Trial Creates Intense Pressure
On the fifth day of the trial, Wellman takes the stand. Don’t screw up, he tells himself. These are high stakes. This guy’s career’s on the line.
An academic might write a book and, if it doesn’t get published, it’s not the end of the world--you take it to another publisher. You do a lousy job in class or you get a lousy evaluation, you teach another class--you still get paid, and if you have tenure you’re not going to lose your job.
This was more dramatic, more immediate.
“You know, ninth inning, two outs, bases loaded, you’re down by two runs and you’re the last batter. I don’t know how baseball players do it,” Wellman says later. “I haven’t been trained to be cool in that way.”
He is a compact man who exudes an intensity, an urgency that is the stuff of good lecturers. He leans forward and jabs his hands in the air as he talks, his voice hurtling from a whisper to a screech within a sentence.
Prompted by Elsayed’s co-counsel, Darryl Parker, Wellman distills the nine criteria for decoding workplace racism. They do not sound earth-shattering: Is the employer’s decision supported by fact? Does the employer apply its standards consistently among people of different races? Did the employers’ explanation of its decision change when the employee challenged it? No, no, yes, Wellman answers.
Six more criteria follow. In each, Wellman says, the university failed miserably. Take No. 5: “Is there statistical information to support the claim of unfair treatment?” Wellman says that, under President Rees, the university approved 98% of white tenure applicants compared with 69% of blacks.
During one hour and 20 minutes of questions, Judge Wilken repeatedly interrupts Wellman to keep his testimony brief. The professor feels rushed, unable to provide context for the theories he has shaped for so long. He wishes he could tell jurors more about his recent analysis of corporate diversity for the Ford Foundation, which found that most companies talk a lot about diversity but are weak on follow-through. He wishes he could expand on his study in the early 1990s of student opinions about affirmative action at Berkeley. He found that most whites supported multiculturalism but wanted admissions to be based solely on objective criteria such as test scores and grades--except when it came to Asian Americans. Their reasoning was both inconsistent and revealing, Wellman felt. Even though Asians tended to have better grades than whites, the white students felt most whites were better candidates for admission. Asians, they said, were less well-rounded. Such patterns, Wellman believes, confirm his initial theories: Although whites sound racially tolerant, in the end their actions and attitudes often maintain white privilege. But the judge will not allow him to go into all this.
He’s still nervous and wet from the spilled water. He knows he’s supposed to direct his answers to the jury, but he’s so anxious he barely takes his eyes off co-counsel Parker. He tells a friend later in the day that he thinks his testimony merits about a C-minus. He doesn’t notice that several people on the eight-member jury--one Latino man, three white men and four white women--are leaning forward in their chairs.
The foreman, Daniel O. Coppock, a white computer technician from Novato, had begun the six-day trial pretty sure that university officials were not at fault. By deliberation time, he was undecided. But Wellman’s testimony stuck in his mind, and in the minds of other jurors, he said later. “He was probably the best witness on either side. He gelled the case for everyone.”
Coppock said the sociologist’s theories of hidden racism didn’t work until he applied them to himself. He thought about times he had feared a black man on the street despite his tolerant upbringing. The realization surprised him. He was sure university administrators had made the same kinds of assumptions with Elsayed. He thought their bias arose, not because the professor is black, but because of his research on militant Muslim communities. Religious politics, Coppock said.
Jurors said they felt that the university administrators came across in their testimony as smug, sure they would win the case. At one point the administrators even conceded that they had not read Elsayed’s published articles. The administrators’ lawyer later admitted that the jurors had found Elsayed to be more personable than her clients, even charming.
“Our people were a little more aloof, and they [jurors] didn’t want to believe what we said,” said Anita E. Ruud, deputy attorney general. President Rees, she said, “has a cooler demeanor.”
During the trial, the administrators had repeatedly cited the campus’ long-standing policy of considering diversity in hiring. They had pointed to the ethnic and religious mix on campus--a place where they said Elsayed blended right in. They said his appearance and background had nothing to do with denying tenure.
With little bickering, the jurors disagreed, awarding Elsayed $500,000 for emotional suffering and $100,000 for lost wages.
They ordered President Rees to personally pay $20,000, Provost Martino to pay $15,000 and Dean Navarro $2,000.
Employment discrimination experts called that kind of slam-dunk ruling in such an iffy case--including the decision to punish university officials directly--extraordinary. The university recently filed for a new trial. It put forth no new evidence but again disputed Wellman’s status as an expert, among other things. Administrators declined requests to be interviewed.
Elsayed, while vindicated, is scarred and wary. Though he is an American citizen, he left for a job at the University of Morocco after the trial. His lawyers say he is still unwilling to discuss the case with reporters or even reveal where he is living. The teachers union is willing to keep pushing for tenure, but Elsayed is not sure he wants it anymore.
Davis now knows that she cannot leave her law practice. She has gotten calls from other potential plaintiffs, at least one within the state university system. She will finish her dissertation and find a way to follow her heart in her professions, old and new.
Wellman has been contacted by nearly a dozen lawyers who want his help in other cases of discrimination. He has considered stepping back from his race research to provide expert testimony full time. He probably won’t, because research is his first love. But he’s quite sure he’ll be involved in more cases in the future.
He worries that talking about the case will make it appear that a white professor saved a black professor, reinforcing a tired, demeaning story line.
But he doesn’t think this jury would have believed him had he not been white. He thinks--and his black colleagues have told him--the jury probably would have thought a minority professor self-serving if he said such things.
This, he figures, is why he got back into doing race research. To do his part.
“I’m just very pleased to have been able to be . . .”
His voice rises, his hands stab the air, and he chuckles.
”. . . REL-ev-ant!”