Nicholas Spaeth: The Passing of an American Hero

Spaeth, Nicholas JAug 2011/news/Spaeth, Nicholas J

Nicholas Spaeth, 64, was found dead at an address in Fargo, North Dakota, on Sunday after police received a call about a suicidal male at that address.

I consider Mr. Spaeth to be a  hero for his courageous stance against age discrimination in hiring at American law schools.

Despite impeccable credentials, Mr. Spaeth, a former two-term North Dakota Attorney General, could not find an entry level teaching job at any American law school for 2011-2012.  He lost out to applicants who were decades younger and far less qualified.  Some had just two or three years of practice experience.

Now for the hero part.

Mr. Spaeth courageously filed age discrimination lawsuits against a half dozen law schools, thereby exposing himself to public ridicule and humiliation.  For example, one legal commentator said his case was “dubious” and another said he was using the legal system in a back door maneuver to get a teaching job.

Shamefully, a jury never got the chance to consider his age discrimination claims, despite what seemed to be substantial evidence of age discrimination. He withdrew some lawsuits after adverse rulings. In another, a judge dismissed the case on pretrial motion, ruling there was no way that a reasonable jury could find that Mr. Spaeth was a victim of age discrimination. It’s unclear what will happen  to the remaining case against the University of Missouri Law School.

He produced an internal memo from Georgetown University’s law school that discussed the need to hire “promising young scholars.”  Meanwhile, hiring committee members wrote on documents related to the hiring process that applicants were both young and older, showing that age was a consideration.  The judge bought Georgetown’s argument that “young” did not refer to age but was a synonym for “new.”

Michigan law school hired three attorneys who graduated in 2006, 2005 and 2001.  The applicant hired to teach corporate taxation had three years of practical experience as an associate in a law firm. Mr. Spaeth was a former General Counsel for H&R Block..

Mr. Spaeth was only 60 when he applied for a full-time teaching position through the Association of American Law Schools (AALS) in 2010.  The AALS holds a conference each fall in Washington, DC, at which law schools interview candidates for teaching jobs.  Of 172 law schools, only two offered Mr. Spaeth an interview, and he already worked part-time at one of them. He got no job offers.

The defendants argued that Mr. Spaeth lacked evidence of legal scholarship, even though he had filed over 40 amicus briefs with the U.S. Supreme Court, edited a book on Native American law and authored numerous articles and reports on credit rate risk and the mortgage crisis.

The fact is that few candidates could have shone a spotlight on the stinking cesspool of age discrimination that exists in American law schools like Mr. Spaeth. Here are just a few of Mr. Spaeth’s  incredible qualifications:

He graduated  Phi Beta Kappa, from Stanford University. A Rhodes Scholar, he earned a Master’s Degree from Oxford University in Politics, Philosophy and Economics, graduating with First Class Honors. He attended Stanford law School and served as Managing Editor of the Stanford Law Review.  He was a clerk to U.S. Supreme Court Justice Byron White from 1978 to 1979.

After serving two consecutive terms as Attorney General for North Dakota, he was  General Counsel for several Fortune 500 corporations, including Intuit, Inc. and H & R Block. He supervised  hundreds of lawyers and directed a diverse array of business and commercial  litigation.

Mr. Spaeth even had four years of teaching experience – as an adjunct professor at the University of Minnesota Law School and as a visiting professor of law at the University of Missouri School of Law.

Lynne Bernabei, a Washington attorney who represented Mr. Spaeth in the age discrimination cases,  issued the following statement on Monday:  “He was a pioneer in forcing an examination of the age bias in law school faculty hiring …  It’s too bad he did not get to see the future reform assisted by his efforts.”

I would like to extend my condolences to Mr. Spaeth’s family. Whatever may have caused him to leave this world, he left it a better place.

EEOC Tackles Ageism in Academia

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NOTE: Marymount Manhattan College subsequently entered a consent decree with the EEOC settling the law suit discussed below. Marymount agreed to pay $125,000 to Patricia Catterson and  to comply with the requirements of the Age Discrimination in Employment Act.  The decree also requires monitoring and training on anti-discrimination law. The decree will last for four years.  

It appears that the U.S. Equal Employment Opportunity Commission (EEOC) finally may be cracking down on what some say is blatant, rampant and unchecked age discrimination in academia.

The EEOC has filed an age discrimination lawsuit against an elite private liberal arts college, Marymount Manhattan College of New York City, because it allegedly refused to hire a choreography instructor for a tenure track assistant professorship because of her age.

Marymount initially selected a 64-year-old choreography instructor and two other applicants as finalists for an assistant professorship in dance composition.  After determining that the 64-year-old was the leading candidate, the EEOC said, Marymount’s search committee expanded its search to include a less qualified, 37-year-old applicant as a fourth finalist because it considered her to be “at the right moment of her life for commitment to a full-time position.”  Marymount hired the 37-year-old applicant.

Last year, Nicholas Spaeth, 62, the former state attorney general for North Dakota, filed several groundbreaking lawsuits against law schools, including the Michigan State University College of Law in East Lansing, Michigan, for  allegedly violating the Age Discrimination in Employment Act.

Spaeth, a magna cum laude graduate of Stanford Law School, says he couldn’t even get an interview for several advertised teaching position at the law school.

Spaeth has served as general counsel at three publicly held companies with billions in assets, argued a groundbreaking tax case before the U.S. Supreme Court, and was a partner at three law firms. He also taught for four years at the University of Missouri School of Law, three years as an adjunct and one year as a visiting professor.

He applied to Michigan law school, which ended up hiring three attorneys for the 2011-2012 school year who graduated in 2006, 2005 and 2001, respectively. One of the new hires had no experience as a legal practitioner. The applicant who was hired by Michigan to teach in Spaeth’s area of specialty, corporate taxation, had three years of practical experience as an associate in a law firm.  Spaeth, who served two four-year terms as North Dakota’s Attorney General, is a former general counsel of H & R Block.

Spaeth earlier filed complaints with the EEOC against more than 100 law schools that also did not offer him an interview.  The EEOC dismissed most, if not all, if Spaeth’s complaints.

One of Spaeth’s age discrimination lawsuits in March passed a critical stage in the legal process. A federal judge denied a motion by Georgetown University’s law school to dismiss Spaeth’s claims that the law school violated federal and District of Columbia laws when it failed to offer tenure-track teaching job. “It… remains plausible that Georgetown could be liable for age discrimination,”   wrote U.S. District Judge Ellen Segal Huvelle in her opinion in Spaeth v. Georgetown University, United States District Court, District of Columbia, No. 11-1376..

The EEOC’s Marymount suit was filed in U.S. District Court for the Southern District of New York (Civil Action No. 12-cv-2388 (JPO) after the EEOC unsuccessfully sought to settle the matter.

“Our suit charges that age was the deciding factor in this case,” said EEOC trial attorney Justin Mulaire.  “Under the law, age has no place in hiring decisions — and tenure-track positions in academia are no exception.”

The Age discrimination against employees and job applicants who are age 40 or older is a violation of the Age Discrimination in Employment Act (ADEA).

Elizabeth Grossman, the regional attorney of the EEOC’s New York District Office, said, “Older workers have the right to be evaluated based on their abilities and not based on their age.  The EEOC is committed to combating bias against older workers in all phases of employment and in all types of employment settings.”

Spaeth v. Age Discrimination in American Law Schools

Spaeth, Nicholas JAug 2011/news/Spaeth, Nicholas J

Update,  on Mar 17, 2014, Nicholas Spaeth was found dead in his apartment in North Dakota, in what authorities have treated as a suicide.

Update, May 2013: Nicholas Spaeth’s complaint against Georgetown University was dismissed before it could ever reach a jury in May 2013.  U.S. District Court Judge  Ellen Segal Huvelle ruled the use of words such as “young” or “pick of the litter” in discussing law professor applicants was not evidence of discrimination against older applicants in Georgetown University Law Center’s hiring process. (editors note: Really???) Spaeth produced an internal university memorandum discussing the need to hire “promising young scholars” and praising the “young cohorts” at peer institutions as an example of bias against older candidates. 

Update, February 2011:  A federal judge ruled in February 2011 that a law school professor suing six law schools for employment discrimination based on age must sue each of the schools separately and in their home districts.  Nicholas Spaeth sued Michigan State University College of Law, the University of Missouri School of law, Hastings College of the Law, University of Iowa College of Law, the University of Maryland, Baltimore and Georgetown University, claiming that the schools passed him up for a tenured teaching position, opting for younger candidates instead. U.S. District Judge Ellen Huvelle denied the schools’ motion to dismiss the claims, but agreed that each school had to be sued separately and within their home district. Below is the story I wrote about Spaeth’s first lawsuit against Michigan.

A former attorney general for the state of North Dakota is challenging blatant age discrimination in hiring in American law schools.

A complaint filed by Nicholas Spaeth, 60, in U.S. District Court describes a scenario that is so egregious that, if true, one can only hope the perpetrators find themselves on the job market soon (very soon) facing employers just like themselves. Click here to read the complaint.

The defendant is the Michigan State University College of Law, East Lansing, Michigan, though it appears that many others will join Michigan in the defendant’s box.

Spaeth, a magna cum laude graduate of Stanford Law School, says he couldn’t even get an interview for several advertised teaching position at the law school. He has served as general counsel at three publicly held companies with billions in assets, argued a groundbreaking tax case before the U.S. Supreme Court, and was a partner at three law firms. He also taught for four years at the University of Missouri School of Law, three years as an adjunct and one year as a visiting professor.

Let’s just say the guy has stellar qualifications.

The complaint states the law school ended up hiring three attorneys for the 2011-2012 school year who graduated in 2006, 2005 and 2001, respectively. All three allegedly had far less experience both qualitatively and quantitatively than Spaeth. In fact, the complaint states that one of the new hires had no experience as a legal practitioner.

The applicant who was hired by Michigan to teach in Spaeth’s area of speciality, corporate taxation, had three years of practical experience as an associate in a law firm.  Spaeth, who served two four-year terms as North Dakota’s Attorney General,  is a former general counsel of H & R Block.

Going through an experience like the one described by Spaeth would make any job applicant feel like he was whacked upside the head with a two-by-four plank.

And it is always worse when a law school  discriminates because a law school educates students who will one day be the attorneys and judges who are enforcing our nation’s anti-discrimination laws. Don’t these guys teach employment law?  One shouldn’t jump to conclusions though.  We’ve only heard Spaeth’s side of the story. It will be interesting to see Michigan’s answer to Spaeth’s complaint.  (Right now, I suspect they’re sweating!)

[According to Wikipedia, Spaeth does not go with the flow. He  is the only statewide, elected official in North Dakota's history not to be endorsed by the National Rifle Association.  He is a life-long advocate of gun control.]

The dean of Michigan State University College of Law is Joan W. Horwath, who is described as an expert on gender and the death penalty and a leader in legal education through work with the Association of American Law Schools, the American Bar Association, and the Society of American Law Teachers.  She is quoted by the Blog of the Legal Times as stating the school has not yet received notice of Spaeth’s complaint.  She added: “When or if one comes our way it will be a false accusation because we do not and have not discriminated on the basis of age.”  (FYI – I am old enough to remember a time when women could not attend many prestigious universities and law schools in this country because they were women. That was just 30 years ago. People like Joan have reaped the benefits of a struggle undertaken by generations of victims of sex discrimination. As an expert in gender, one would certainly hope that Joan would insure that her own law school didn’t engage in discriminatory practices.)

Attorneys Lynne Bernabei and Alan Kabat of Washington’s Bernabei & Wachtel represent Spaeth, who previously filed complaints with the U.S. Equal Employment Opportunity Commission against more than 100 law schools that also did not offer him an interview at the Association of American Law Schools’  Faculty Recruitment Conference.