Court Rejects Bid to Rehear Tenure Case

A federal appeals court Wednesday narrowly rejected the request of a former Cal State Hayward professor that it rehear a case in which it overturned a $637,000 damage judgment a jury awarded him after deciding that he had been denied tenure based on his race.

The San Francisco-based U.S. 9th Circuit Court of Appeals ruled last August that the verdict on behalf of Mohamed Osman Elsayed Mukhtar was flawed because a trial judge had failed to adequately weigh the reliability of expert testimony offered by a sociologist on Mukhtar’s behalf.

In order to get a rehearing, Mukhtar’s attorneys needed to win the votes of 13 of the circuit’s 24 active judges. The circuit does not make such votes public, but this one was very close, with 11 judges filing a blistering dissent saying that the original three-judge panel had ignored past 9th Circuit precedents.

The case is the first in which 11 judges have publicly registered a dissent when the court failed to rehear a case, said Arthur D. Hellman, a University of Pittsburgh law professor who follows the 9th Circuit closely. “It is very unusual,” said Hellman, noting that there had been rare instances where eight or nine judges had registered a dissent.

Stephen Reinhardt, who is considered the most liberal judge on the court, wrote the dissent. All 11 dissenters were appointed by Democratic presidents -- two by Jimmy Carter and nine by Bill Clinton.

The key legal issue on appeal involved the standard for admission of “scientific, technical or other specialized knowledge” by an expert witness.

In 1993, the U.S. Supreme Court, in response to claims that “junk science” had invaded the nation’s courts, issued a landmark decision, Daubert vs. Merell Dow Pharmaceuticals. The ruling said that expert testimony had to be both relevant and reliable before it was admissible in federal court. The high court also held that a federal trial judge must act as a “gatekeeper” to bar “junk science.”

Wednesday’s ruling stemmed from a series of events that began in 1990, when Mukhtar became the first black tenure-track professor hired by the mass communications department at Cal State Hayward. Mukhtar, who is from Sudan, had not completed his doctoral dissertation, normally a prerequisite to a tenure-track position, but the university made an exception.

It took Mukhtar another five years to get his PhD, but he received high marks from students for his teaching. By split votes, three university committees recommended that Mukhtar receive tenure. But university President Norma Rees disagreed, saying that Mukhtar “did not meet university standards in the areas of instructional and professional achievement.”

Eventually, Mukhtar sued in federal district court in Oakland. His attorney, Fania Davis, told Judge Claudia Wilken that she planned to offer testimony from David Wellman, a UC Santa Cruz sociology professor who is considered an expert on subtle forms of racism.

The university’s attorney attempted to bar Wellman from testifying, contending that the testimony did not meet the Daubert standard. After reviewing briefs by both sides, as well as Wellman’s resume, declarations and pretrial deposition, Wilken ruled that he could testify.

Jurors said after the trial that Wellman’s testimony had played a key role in their damage verdict on behalf of Mukhtar.

A three-judge appellate panel, however, overturned the verdict, saying that Judge Wilken had failed in her “gatekeeper” role because she had not explained on the record why Wellman’s testimony met the Daubert reliability standard. That meant that the testimony was improperly admitted, wrote 9th Circuit Judge Diarmuid O’Scannlain, a Ronald Reagan appointee.

“Once Dr. Wellman’s testimony is excluded, the remaining evidence seems to indicate, at most, a mere difference of academic opinion -- not discrimination -- and does not undermine the university’s nondiscriminatory reason for denying” tenure, O’Scannlain wrote.

In the dissent Wednesday, Reinhardt said “the panel’s action in this case is directly contrary to the practice we have followed in every other reported case of which we are aware.” In some instances, he wrote, 9th Circuit panels had sent cases back to the District Court judge to issue a full explanation of the expert’s reliability.

In this case, Reinhardt emphasized, the three-judge panel had not ruled that Wellman’s testimony failed to meet the Daubert test of reliability, merely that Judge Wilken had not stated explicitly why it was admissible.

Reinhardt’s dissent expressed dismay that the panel’s ruling set a precedent that might pave the way for overturning a number of jury verdicts involving expert testimony.

Felicia Reid, the San Francisco attorney who represented the Cal State Hayward, said the panel’s action was “perfectly legitimate.” Wednesday’s decision “is very good news for our client, who has steadfastly maintained they did nothing wrong,” Reid said. The denial of tenure for Mukhtar was “based on academic scholarship and nothing else.”

Mukhtar’s lawyers said he left the United States after he was denied tenure, and is teaching in Africa. “It would be a great hardship for him to return to the U.S. to have a retrial of this case,” said Seattle attorney Darryl Parker. His co-counsel, Berkeley lawyer Davis, said that “the dissent was right on the money,” and that she plans to ask the U.S. Supreme Court to review the case.