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Students at Texas Tech University School of Law learn about legal disputes in class, but one that’s raging outside the lecture halls at the Lubbock campus is providing them a first-hand look at conflict. What began as a disagreement over how university officials selected an interim law dean has grown into a raging controversy over whether women and minorities can get a fair shake at the university, splitting faculty and students, and sparking a flurry of memos and letters as all sides stake their positions. “I am committed to moving the University toward greater fairness,” law professor Daisy Hurst Floyd wrote in a Nov. 11 memo after the student newspaper published stories about her allegations that Texas Tech discriminated against her and retaliated when she complained. “While I have raised some issues that could be the basis for personal legal claims, I am greatly concerned with the broader pattern of institutional behavior, of which my circumstances are just one example.” Her attorney, Mark Perlmutter, a partner in Perlmutter & Schuelke in Austin, puts the allegations this way: “They [university officials] create an impression that they’re in favor of diversity and open processes, when it’s a done deal for the white guy from Day 1.” But Texas Tech vice chancellor and general counsel Pat Campbell says university officials have worked long and hard for diversity. In a Nov. 7 letter to Perlmutter about Floyd’s discrimination allegations made in official filings with several agencies, Campbell writes: “We all agree that diversity is a paramount issue that merits serious consideration. However, it is not a new issue. [Texas Tech] President [David] Schmidly made it abundantly clear that diversifying the university was his number one priority upon taking office. Although this goal cannot be reached overnight, there is simple objective proof that progress has been, and continues to be made under President Schmidly.” In her complaints with attached summaries — one of them filed earlier this year with the Texas Commission on Human Rights, which forwarded it to the Equal Employment Opportunity Commission, and the other two filed with the Office of Federal Contract Compliance Programs in the U.S. Department of Labor and the Association of American Law Schools (AALS) — Floyd alleges that the university provost sent a memo to Schmidly recommending an allegedly less-qualified male as interim law dean on the day nominations for the job opened; that Schmidly said he never would give the dean’s job to a woman and used a derogatory term to describe a woman; and that female faculty members are paid less than men. “The climate for women and people of color at the University is discriminatory and demeaning, arising in part from the University’s pattern of failing to respond appropriately to claims of discrimination,” Floyd alleges in her complaint to the Office of Federal Contract Compliance Programs, which was filed with that office because Texas Tech receives more than $50 million in federal grants each year. Texas Tech officials adamantly deny Floyd’s allegations and stress their efforts to promote diversity. Schmidly is vehement that he never made the derogatory remark or said he wouldn’t hire a woman. “I didn’t say that,” the president says. “Anyone that knows me and knows me well and knows my record of promoting diversity knows I wouldn’t say that.” Schmidly lists a number of appointments of minorities and women to administrative posts he’s made since becoming president in August 2000. Texas Tech’s record on diversity is improving and efforts will continue, he says. This semester, Texas Tech had 1,226 faculty members, according to the university’s Institutional Research and Information Management department. Twenty are black, 53 are Hispanic, 71 are Asian and four are American Indian. Of the total, 821 are men and 405 are women. Law school officials say that 16 of the 20 faculty members hired there since 1990 have been women or minorities. The law school has about three dozen professors, a third of them women. “These overall numbers that are quoted reflect 75 years,” Schmidly says. “I’ve only had a little more than two years to change that.” The resignation of Dean Frank Newton a year ago after more than 16 years in the position and the selection of an interim dean led to Floyd’s initial complaint. Floyd says she wanted to step in as interim dean after Newton left in December 2001 to take a job as executive director of the Class Settlement Charity Foundation in Beaumont. However, then-Provost John Burns never interviewed her for the position and sent a memo recommending fellow Professor James Eissinger for the temporary job when nominations were still open, Floyd alleges. She also alleges in her EEOC complaint that Schmidly used a derogatory term for women in an aside to Newton and told the then-law dean that Schmidly never would select a woman as dean. In an Oct. 9, 2002, affidavit, Newton says he was startled by Schmidly’s comment, but given the president’s actions in support of diversity, he took no action except to inform Floyd right away and discuss it with her and her husband, fellow Texas Tech law professor Timothy Floyd. Newton did not return three phone calls seeking comment before presstime on Nov. 21. Newton’s affidavit never provides a word-for-word quote of what Schmidly allegedly said. Daisy Floyd, in a Jan. 8, 2002, memo to the dean search committee, alleges that Newton said that Schmidly had used a “crude and lewd sexist term” for a woman. Newton’s affidavit says that he was called to a meeting with Schmidly and a group of women faculty members on Dec. 14, 2001, soon after he related the comment to the Floyds. “President Schmidly said my recollection of the comment was a lie,” Newton’s affidavit says. “I responded that I reported what I heard. President Schmidly then asked whether if I heard this comment I should have discussed it directly with him. I readily acknowledged that this would have been the best way to handle the matter. I am haunted by the possibility that I misheard or misunderstood the aside.” Newton goes on in the affidavit to “flatly reject” all allegations that he or the law school, as well as the university, Schmidly or Burns, to his knowledge, practiced any form of discrimination. University officials, including Schmidly and Campbell, say Newton’s own affidavit contradicts what he thought he heard. Schmidly has repeatedly denied making the remark and says the term Newton thought he heard is not even in his vocabulary. Two days after Eissinger’s appointment as interim dean was announced on Dec. 4, 2001, Floyd resigned as associate dean of academic affairs at the law school to teach full time. She remains a professor and continues to teach. In her EEOC complaint, Floyd alleges she was constructively terminated as associate dean because of the hostility toward women employees. In January 2002, her pay was reduced without notice, she claims, even though men who lost administrative duties kept their same salaries. Later her pay was reinstated retroactively; administrators say the reduction was a clerical error prompted by Floyd leaving her associate dean position. Burns, who’s now associate vice president for undergraduate research, says he had promised to interview all interested candidates for the interim dean position and says he made a mistake. He says he was trying to fill the position quickly before the Thanksgiving holiday and didn’t see an e-mail from Floyd expressing her interest in the job until after he forwarded a recommendation on Nov. 21, 2001, that Eissinger be named. Eissinger was recommended by Newton and had the support of the majority of faculty members, Burns says. “I felt badly about it,” Burns says. “Daisy and I have been friends for a long time. I wrote her a letter of apology.” A FAIR PROCESS? The disagreement over hiring practices continued with the selection of a permanent dean — Walter Huffman, a former judge advocate general for the U.S. Army and a Texas Tech law alum. Huffman took over in August. A June 2002 memo from Floyd — who had decided by Nov. 20, 2001, against being a candidate for permanent dean — and five other members of the law dean search committee to Texas Tech administrators complains about the way the appointment decision was made and expresses concern about whether all candidates had the same chance. Other committee members say the process was fair. Gary M. Bell, chairman of the search committee and dean of Texas Tech’s Honors College, says members spent an inordinate amount of time reviewing applications. “These researches were followed by an interview process, which has been followed by very frank but typically fair exchanges about the qualities of each of the finalists for the position,” Bell wrote in a May 2002 memo to the law faculty. Brian Newby, a committee member and a partner in Cantey & Hanger in Fort Worth, says that the finalists were highly qualified. Huffman rose to the top because members thought that the law school needed to increase its reputation and that it would be an advantage to have someone with outside experience in fund-raising, he says. Huffman walked into the storm when he became dean. He hired a private company, Employment Practices Solutions in Houston, to look into the circumstances surrounding Schmidly’s alleged comment. The dean plans to sit down with the faculty once the investigation is completed, possibly by December. Huffman says he’s reviewed law faculty salaries and hires in the past several years and is satisfied that there is no discrimination. “Gender, racial and ethnic bias are absolutely intolerable,” he says. “We won’t have any of that.” Floyd and Perlmutter say they wanted to resolve the dispute quietly and were working behind the scenes. However, Texas Tech student journalists for The University Daily obtained Floyd’s complaints in October under an open records request and broke the story. Nine law faculty members decline to speak on the record about the situation, but agree that professors are split over the extent of the diversity problem. Many agree that there’s more diversity among the law faculty than at the university in general, but say that recent recruitment figures can be deceiving. The real test, they say, will be if Texas Tech can retain the professors or if they’ll go somewhere else. Students speak openly about their feelings. The revelations in The University Daily prompted some to arrange a Nov. 14 march calling for diversity at the university; it drew about 150 participants. “It became about more than Daisy Floyd’s complaint,” third-year law student Tina Tuccelli says. “We decided we needed to do something about it.” Tuccelli says students researched employment figures and found a universitywide problem. She adds that there never has been a minority dean of any of the university’s 12 colleges. “We got some criticism in preparing for the march from the dean and some faculty, saying it was premature,” Tuccelli says. “The neatest thing was being able to reply and say we’re using the same research skills we learned in class.” This month, Huffman and Schmidly held separate meetings with faculty and students at the law school to discuss the issues surrounding Floyd’s complaints, but most interviewed by Texas Lawyer doubt that the controversy will die down. Tuccelli says students are planning more events in the spring to promote diversity. Floyd says she’s made no decision about whether to sue. “I would still love us to work on a collaborative basis,” she says. “That’s been my goal all along.” In his Nov. 7 letter to Perlmutter, general counsel Campbell says that’s also his goal. However, he writes, “If there is to be a collaborative effort, it must begin with a clean slate. There will be no admission of wrongdoing, because none exists. The university will not acknowledge baseless allegations of an ‘existing pattern of discrimination.’ If your client agrees with this approach, we are prepared to discuss her thoughts on assisting the University in achieving its goal of increasing diversity at Texas Tech University.” In an interview, Campbell says Texas Tech is making sincere efforts to bring in diverse applicants. He says, “We don’t have a discrimination issue here.”

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