Legal Law

Penn State Loses Major Motion in Race Discrimination Case – JONATHAN TURLEY

We previously discussed the lawsuit of Dr. Zack K. De Piero against Penn State over an alleged hostile work environment and racial discrimination linked to antiracism training and material. Judge Wendy Beetlestone just denied a critical motion to dismiss in De Piero v. Penn State with strong language concerning DEI programs.

De Piero brought his case under Title VII of the Civil Rights Act. As previously discussed, there were roughly 40 defendant trustees, professors, and administrators named in the complaint below.  This includes Professor Liliana Naydan who was an Associate Professor of English and served as De Piero’s Supervisor and Chair of the English Department and Writing Program Coordinator.

De Piero alleges that he was “individually singled out for ridicule and humiliation” due to his race. He also alleges that he was expected to follow and support the view that “White supremacy exists in the language itself, and therefore, that the English language itself is ‘racist.”

De Piero also alleges that faculty were encouraged to participate in anti-racist workshops and trainings, including one titled “White Teachers are the Problem.”

What is most interesting about the complaint is that it alleges policies that would violate core academic freedom principles from the content of his classes to grading. He alleges that he was told to adopt a race-based grading system. Specifically, he alleges that the failure to grade minorities on par or better than whites would be treated as de facto racist:

“Defendants instructed De Piero that outcomes alone — regardless of the legitimacy of methods of evaluation, mastery of subject matter, or intentions — demonstrate whether a faculty member’s actions are racist or not. Defendants call this “social justice” and “antiracism.” At the core of their ideology, Defendants discriminate twofold on the basis of race. First, Defendants’ bigotry manifests itself in low expectations. They do not expect black or Hispanic students to achieve the same mastery of academic subject matters as other students and therefore insist that deficient performance must be excused. Accurate assessment of abilities, if it happens to show disparate performance among different racial groups, is therefore condemned as “racist.” econd[sic], Defendants’ bigotry manifests itself in overt discrimination against students and faculty who do apply consistent standards, especially white faculty.”

In her denial of Penn State’s motion in the Eastern District of Pennsylvania, Judge Bettlestone explored the record, including how the DEI Director emailed all employees ‘calling on white people’ to ‘feel terrible’ about their ‘own internalized white supremacy’ and to ‘hold other white people accountable.’” She also noted that the Assistant Vice Provost for Educational Equity “‘led the faculty’ in a breathing exercise in which she instructed the ‘White and non-Black people of color to hold it just a little longer—to feel the pain.’”

The court also recounted how

Defendant Carmen Borges, Associate Director of the AAO, asked to meet with De Piero to discuss his bias report. At that meeting, she responded to De Piero’s concern that he had been made to feel “humiliated, disgraced, harassed, and discriminated against,” by telling him that “[t]here is a problem with the white race” and he should “broaden [his] perspective.” “Until you get it,” she told De Piero, he should continue to attend anti-racism workshops. By November 2021, Borges had resolved De Piero’s initial complaint and had decided that no further action would be taken. She concluded that the “White Teachers are a Problem” training, “while it may be offensive to [him], does not constitute discrimination towards you as an individual and does not rise to a violation of the University’s Non-Discrimination policy.”

In a balanced opinion, Judge Bettlestone stated

“Training on concepts such as ‘white privilege’, “white fragility’, implicit bias, or critical race theory can contribute positively to nuanced, important conversations about how to form a healthy and inclusive working environment [. . . ] But the way these conversations are carried out in the workplace matters: When employers talk about race—any race, [. . .] —with a constant drumbeat of essentialist, deterministic, and negative language, they risk liability under federal law.”

These lawsuits are mounting against universities, which continue to burn through funds to defend these controversial statements.  In other cases, we have seen officials immediately remove statements when they become public. For example, at Johns Hopkins Hospital chief diversity officer Sherita Golden issued an apology after an outcry over her “privilege” list from the Johns Hopkins Medicine’s Office of Diversity, Inclusion, and Health Equity program.

The newsletter stated

“Privilege is an unearned benefit given to people who are in a specific social group. Privilege operates on personal, interpersonal, cultural and institutional levels, and it provides advantages and favors to members of dominant groups at the expense of members of other groups…

In the United States, privilege is granted to people who have membership in one or more of these social identity groups: White people, able-bodied people, heterosexuals, cisgender people, males, Christians, middle or owning class people, middle-aged people, and English-speaking people.”

As is sometimes the case, when exposed publicly, officials will often disavow their own program material or statements. This was in a newsletter that the office obviously reviewed, edited, and released. Now, however, Golden insists that it does not capture the views of the office and expressed “deep regret.”

In the case of Penn State, the school appears set on trying a case that will only increase the costs and negative coverage for the school. It is often the case that administrators lack the courage to challenge DEI programs or material. The alternative of spending potentially millions on litigation and damages can be viewed as rational rather than risking personal backlash for reversing course.

 

 

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