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Jury returns defense verdict in law prof’s discrimination suitBy Jonathan W. FoxTexas LawyerMonday, November 6, 2006 The University of Texas and former UT School of Law Dean William Powers Jr. � now UT’s president � did not discriminate against an African-American law professor or retaliate against him for filing a discrimination suit, a federal jury in Austin decided on Oct. 30. The jury in Carson v. University of Texas at Austin, et al. also denied professor Loftus C. Carson II’s claim that the University of Texas Law School Foundation, a nonprofit group that provides financial support to UT’s law school, retaliated against Carson for suing UT by denying Carson a low-interest second mortgage loan. Joe Jamail, a partner in Houston’s Jamail & Kolius who, along with Texas Assistant Attorney General William T. Deane, defended UT and Powers pro bono, is pleased with the defense verdict. “It was a frivolous claim based on no merit and was petty in nature,” says Jamail, who as a UT Law School Foundation trustee also was named as a defendant in the suit but was dismissed from the case before it went to the jury. Carson disagrees with the jury’s verdict and says he’ll appeal. “We were hamstrung all the way around,” says Carson. He notes that in 2002, he had complained to Powers about discrimination and racial profiling he encountered at UT. As a result, Carson says, he and the dean reached an agreement that seemingly addressed the professor’s concerns. But Carson says at the Austin trial, Senior U.S. District Judge Donald E. Walter of Louisiana excluded evidence of discrimination and racial profiling he alleges occurred before the 2002 agreement, making it difficult to tell his story to the jury. Carson’s suit originally was assigned to U.S. District Judge Sam Sparks. The judge says he planned to transfer the suit to a new judge because he was going to travel to London to attend the inauguration of former UT Law School Foundation president David J. Beck � who had been added as a defendant in the case � as president of the American College of Trial Lawyers. Sparks says he called 5th U.S. Circuit Court of Appeals Chief Judge Edith Jones to let her know of his plans, and Jones signed an order approving the transfer. But before Sparks transferred the suit, a newspaper article reported that the judge had received discounted tickets for UT football games. Carson filed a Sept. 5 motion asking Sparks to disclose his connections with UT, and Sparks subsequently issued an order transferring the suit to Walter. But Carson’s attorney, Robert Notzon, takes issue with the transfer. Notzon says Sparks should have recused himself and sent the suit to the chief judge of the Western District of Texas to assign a new judge. By transferring the case rather than recusing himself, Carson alleges Sparks kept a degree of control in the case. “Subsequent proceedings should not have the handprints of a preceding judge,” he says. Notzon also maintains that Walter’s Sept. 29 denial of his motion for a continuance did not give him enough time to prepare for trial or to respond to motions from at least 14 lawyers for UT, Powers and the foundation. “I was papered to death with no respite from the court,” he says. Carson is a tenured law school professor with degrees from Harvard, the University of Pennsylvania, Princeton and Cornell. He joined the UT law school faculty in 1988 and teaches corporate, commercial and securities law. He sued UT on June 10, 2005, claiming that the university and law school racially discriminated against him. “As an African-American male that attempts to live and work as an equal with his colleagues, Professor Carson has consistently been denied that equality,” Carson alleged in his original complaint. “As a consequence, Professor Carson has suffered focused and disparate treatment both due to his . . . effrontery in demanding this equality as a proud black man and then complaining when it is denied either through action or inaction.” In his complaint, Carson alleged that UT’s campus police department discriminates against him and other African-Americans on campus through racial profiling. He alleged that UT police consistently have ordered him to produce identification, demonstrate that he could unlock his office door, “aggressively tailgated” him on campus, and subjected him to “an assaultive body search” and to “threatening, demeaning and degrading interrogations.” Carson alleged that UT Law’s grievance procedures, allocation of resources and decision-making processes had a “racially disparate” impact on him and other African-Americans at the law school. Carson also claimed that Powers, who served as dean of the law school from 2000 until Nov. 4, 2005, when he became UT’s president, discriminated against him on the basis of race by reprimanding him for failing to seek authorization to teach outside of UT, leaving personal belongings in the library, having too many file cabinets and mistreating his own assistant. Powers treated white faculty who had been the focus of similar complaints differently and was more attentive to the concerns of white faculty members, Carson alleged. Carson also maintained that Powers discriminated against him by denying him a sabbatical and a 2004 summer research grant, by not giving him the same recognition as other faculty when UT Law’s Student Bar Association awarded him a teaching accolade and by not naming him to school governance committees. In his answer, Powers denied Carson’s allegations. During trial, Powers pointed to his successful efforts to increase enrollment of black and Hispanic students at UT Law, Jamail says. Powers did not return a telephone call seeking comment before presstime. But state Sen. Rodney Ellis, D-Houston, a 1979 graduate of UT Law who helps the school recruit minority students and who testified at trial, defended Powers. As dean, Powers was “especially sensitive in trying to diversify the law school,” says Ellis, who nonetheless believes more must be done to increase minority enrollment. Notzon calls Ellis’ testimony about minority recruiting “irrelevant” and a “PR campaign.” “This case was never about minority students,” said Notzon, noting that for most of Carson’s tenure at UT Law he was one of only two African-American professors. By winning the trial, Jamail � who has contributed millions to UT and UT’s law school � says he is glad to be able to erase the allegation of discrimination against Powers from the mind of the public. The law school denied Carson a summer research grant, Jamail says, because of his low output of scholarly articles. “Tenured professors have an obligation to do more than just teach a class,” Jamail said. Many of the white professors that Carson claimed received more recognition at UT Law produced a steady output of scholarly articles, Jamail says. Nonetheless, he says Powers treated Carson “no differently than any other professor.” Carson claims that an alleged discriminatory environment at UT under Powers was “debilitating” and “hampered my ability to produce.” As a result, in addition to teaching at UT Law he teaches part time at “places where I am appreciated” such as Prairie View A&M University. Carson also sued UT and Powers for breach of contract. He accused them of violating a 2002 agreement addressing his previous claims of discrimination and racial profiling. They reached that agreement without Carson filing suit. Under the 2002 agreement, Carson received $100,000 and guaranteed-leave pay worth $25,000. The agreement also called for the law school’s dean or UT’s vice president, who oversees UT’s campus police, to interview African-American faculty members annually for five years to identify and address their concerns, and for the law school’s dean to meet with Carson on a periodic basis. No meetings ever occurred, Carson alleged in his fourth amended complaint. UT officials said at trial that they attempted to set up meetings. Assistant AG Deane argued that no breach of contract occurred because setting up the meetings was “a mutual obligation at best,” according to the Austin-American Statesman. Deane did not return a telephone call seeking comment. Home loans Carson amended his suit on Dec. 2, 2005, to add several defendants, including Powers, the University of Texas Law School Foundation and several of the foundation’s trustees. Carson eventually dropped most of the trustees as defendants, except for Jamail and Beck. This addition took place, Jamail says, after Carson applied for two second-mortgage loans from the foundation, a private endowment that supports the law school by offering scholarships, minority recruitment funds, stipends to supplement faculty salaries and low-interest second-mortgage home loans to faculty. The foundation approved a loan for one home but not for Carson’s other home. Carson alleged that the foundation rejected the second home loan for reasons of racial discrimination, retaliation for his discrimination suit or retaliation for criticizing UT and Powers in speech protected by the First Amendment. In his fourth amended complaint, Carson alleged that “the rejection of Prof. Carson’s request was the first rejection in the history of the program, and was for a residence in a subdivision named The Polo Club Estates, which, judging by the actions of the Trustees, has been deemed by them to be suitable for white people only.” In its answer, the foundation denied Carson’s accusations of bias and retaliation. The second home loan was denied because it set a bad precedent, says foundation attorney Shannon H. Ratliff, because no other faculty member had ever applied for a second loan. Approving multiple loans for faculty members, Ratliff says, “could siphon off too much money from other worthwhile investments that provide a greater return” for the foundation. Ratliff says that Carson sought to disqualify Jamail as counsel on Aug. 4, on grounds that he was a witness in the trial, but Judge Sparks denied the motion. “It is simply not appropriate,” Sparks wrote, “for a party to sue by amended complaint opposing counsel of record and then attempt to disqualify him from representing the client that requested the representation.” Sparks also said Carson should not have waited until the case was set for trial to seek Jamail’s disqualification. Before the case went to the jury, Ratliff says the defendants moved for judgment as a matter of law to have Jamail and Beck dropped as defendants. Walter sustained the motion. “It’s pretty unusual,” Ratliff says, “but the cupboard was so bare of any evidence.” Carson says he sees his case as typical for African-American professionals in law schools and big law firms: Some blacks get in but are then treated like “second-class citizens.” “This is the next frontier for African-Americans,” he says, “not mere access but how you’re treated once you are inside.” Carson says he will appeal the verdict. “This is round one. I have a duty to press forward.”

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