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Richardson sued, and argued in her suit that she was discriminated against by [[Boston University]].<ref name="harvardlawreview" /> The author provides the reader with a discussion of the background of precedent established from prior cases on the subject, and laments how some of these court decisions in the past have contradicted each other.<ref name="parker" /><ref name="harvardlawreview" /> In between discussion of the case itself, Heins debates decisions by the [[Supreme Court of the United States]] in the issue of affirmative action.<ref name="harvardlawreview" />
Richardson sued, and argued in her suit that she was discriminated against by [[Boston University]].<ref name="harvardlawreview" /> The author provides the reader with a discussion of the background of precedent established from prior cases on the subject, and laments how some of these court decisions in the past have contradicted each other.<ref name="parker" /><ref name="harvardlawreview" /> In between discussion of the case itself, Heins debates decisions by the [[Supreme Court of the United States]] in the issue of affirmative action.<ref name="harvardlawreview" />
===Affirmative action in minority student admissions===

Heins provides significant discussion in the book on the landmark Supreme Court case, ''[[Regents of the University of California v. Bakke]]''. The case was decided in 1978 and upheld the practice of [[affirmative action in the United States]]. In the lawsuit, the affirmative action standards at [[UC Davis School of Medicine]] were challenged; the school had a practice of holding 16 out of a total of 100 slots for minorities in the incoming class of students. White potential student Alan Bakke challenged the affirmative action practice after having been rejected by the medical school. In an opinion written by Justice [[Lewis F. Powell, Jr.]], the Court ruled against [[racial quota]]s at the school while allowing for minority status to remain one among multiple decision criteria for the admissions decision process.<ref name="hilarybklein" />
Heins provides significant discussion in the book on the landmark Supreme Court case, ''[[Regents of the University of California v. Bakke]]'' on affirmative action in minority students admissions. The case was decided in 1978 and upheld the practice of [[affirmative action in the United States]] in admission of minority students. In the lawsuit, the affirmative action standards at [[UC Davis School of Medicine]] were challenged; the school had a practice of holding 16 out of a total of 100 slots for minorities in the incoming class of students. White potential student Alan Bakke challenged the affirmative action practice after having been rejected by the medical school. In an opinion written by Justice [[Lewis F. Powell, Jr.]], the Court ruled against [[racial quota]]s at the school while allowing for minority status to remain one among multiple decision criteria for the admissions decision process.<ref name="hilarybklein" />
===Affirmative action in minority hiring===

The author contrasts the ''Regents of the University of California v. Bakke'' case with the Supreme Court's 1971 decision in ''[[Griggs v. Duke Power Co.]]'' which ruled that employers did not have to willfully discriminate against employees in order to have violated Title VII of the [[Civil Rights Act of 1964]]. Chief Justice [[Warren E. Burger]] wrote that certain types of standardized tests given by employers could be seen as discriminatory even if that was not the original intent of the employer. Other cases discussed by Heins include the 1980 Supreme Court decision in ''[[Fullilove v. Klutznick]]'', wherein the Court ruled as constitutional a law by the federal government requiring a certain percentage of overall funds for a building project to be used to benefit minorities.<ref name="hilarybklein" />
The author contrasts the ''Regents of the University of California v. Bakke'' case with the Supreme Court's 1971 decision in ''[[Griggs v. Duke Power Co.]]'' which ruled that employers did not have to willfully discriminate against employees in order to have violated Title VII of the [[Civil Rights Act of 1964]]. Chief Justice [[Warren E. Burger]] wrote that certain types of standardized tests given by employers could be seen as discriminatory even if that was not the original intent of the employer. Other cases discussed by Heins include the 1980 Supreme Court decision in ''[[Fullilove v. Klutznick]]'', wherein the Court ruled as constitutional a law by the federal government requiring a certain percentage of overall funds for a building project to be used to benefit minorities.<ref name="hilarybklein" />
===Affirmative action in sexual discrimination===

The final Supreme Court cases discussed by Heins in the book include the 1987 ruling in ''[[Johnson v. Transportation Agency, Santa Clara Cty.]]'' followed by the Court's 1988 opinion in ''[[Watson v. Fort Worth Bank & Trust]]''. The author characterizes ''Johnson v. Transportation Agency, Santa Clara Cty.'' as endorsing an affirmative action structure in a business in order to support female employees. ''Watson v. Fort Worth Bank & Trust'' came on the heels of this decision and found that subjective analysis of employees is subject to bias and necessitate explanation from the employer as to how this form of analysis is directly relevant to job performance.<ref name="hilarybklein" />
The final Supreme Court cases discussed by Heins in the book include the 1987 ruling in ''[[Johnson v. Transportation Agency, Santa Clara Cty.]]'' followed by the Court's 1988 opinion in ''[[Watson v. Fort Worth Bank & Trust]]''. The author characterizes ''Johnson v. Transportation Agency, Santa Clara Cty.'' as endorsing an affirmative action structure in a business in order to support female employees. ''Watson v. Fort Worth Bank & Trust'' came on the heels of this decision and found that subjective analysis of employees is subject to bias and necessitate explanation from the employer as to how this form of analysis is directly relevant to job performance.<ref name="hilarybklein" />
===Heins' unsuccessful verdict===

Subsequent to her discussion of Supreme Court caselaw of the time period, Heins moves on to recount the unsuccessful jury verdict which decided against her client by ruling that Richardson's firing by the school was not illegal. Heins takes the reader chronologically through the trial itself, including the evidentiary process and witness testimony. Following this analysis the book provides a discussion of the jury decision in the case. The jury found that Richardson honestly thought her school's management was conducting employment discrimination and thus also determined that her criticism of such practices were not in bad faith. However, the jury additionally determined that the school management did not actually fire Richardson due to her criticism of its employment and hiring practices. Heins criticizes this compromise decision by the jury in the case, and argues that it reflects the political biases of individual jurors rather than a true interpretation of the law as applied to Richardson's firing by the school management. In post-decision interviews the jurors explained they felt that it was the duty of employees such as Richardson to be respectful of those they reported to, and they determined Nesmith was one such managerial official in his capacity as Dean of the School of Theology.<ref name="hilarybklein" />
Subsequent to her discussion of Supreme Court caselaw of the time period, Heins moves on to recount the unsuccessful jury verdict which decided against her client by ruling that Richardson's firing by the school was not illegal. Heins takes the reader chronologically through the trial itself, including the evidentiary process and witness testimony. Following this analysis the book provides a discussion of the jury decision in the case. The jury found that Richardson honestly thought her school's management was conducting employment discrimination and thus also determined that her criticism of such practices were not in bad faith. However, the jury additionally determined that the school management did not actually fire Richardson due to her criticism of its employment and hiring practices. Heins criticizes this compromise decision by the jury in the case, and argues that it reflects the political biases of individual jurors rather than a true interpretation of the law as applied to Richardson's firing by the school management. In post-decision interviews the jurors explained they felt that it was the duty of employees such as Richardson to be respectful of those they reported to, and they determined Nesmith was one such managerial official in his capacity as Dean of the School of Theology.<ref name="hilarybklein" />


Revision as of 14:58, 7 June 2014

For the idiom, see cut the mustard.
Cutting the Mustard
Cutting the Mustard
Book cover
AuthorMarjorie Heins
Original titleCutting the Mustard: Affirmative Action and the Nature of Excellence
LanguageEnglish
SubjectFreedom of speech
GenreLaw
Published1987
PublisherFaber and Faber
Publication placeUnited States
Media typeHardcover
Pages213
ISBN978-0-571-12974-4
OCLC15653313
Preceded byStrictly Ghetto Property: The Story of Los Siete de la Raza 
Followed bySex, Sin, and Blasphemy: A Guide to America's Censorship Wars 

Cutting the Mustard: Affirmative Action and the Nature of Excellence is a 1987 non-fiction book by civil libertarian and United States lawyer Marjorie Heins about freedom of speech and its relationship to affirmative action. Heins discusses the case of Nancy Richardson, dean of student affairs at the Boston University School of Theology, who was removed from her position by the school's administration in 1981. Heins represented Richardson in an unsuccessful lawsuit against Boston University for wrongful termination. Cutting the Mustard recounts the case, interspersing reflections on the lawsuit with a discussion of relevant case law, decisions by the Supreme Court of the United States related to affirmative action and multiple criticisms of contradictory court decisions in affirmative-action cases.

The book was positively received by the Harvard Law Review which recommended From Midterms to Ministry for further information. It was also reviewed by the Women's Review of Books, Women's Rights Law Reporter and California Lawyer. A review in Library Journal by a Harvard Law School librarian criticized the book for its lack of a substantive analysis of the case.

Background

Dark-haired woman in formal dress
Heins at a 2009 National Coalition Against Censorship event

Marjorie Heins is an attorney with a focus on civil liberties.[1] She received her Bachelor of Arts degree from Cornell University in 1967[1] and graduated magna cum laude from Harvard Law School, receiving her juris doctor degree in 1978.[1]

Before Cutting the Mustard, Heins' book Strictly Ghetto Property: The Story of Los Siete de la Raza was published in 1972.[2][3] Cutting the Mustard: Affirmative Action and the Nature of Excellence was first published in 1987.[4][5]

Content summary

Cutting the Mustard describes an unsuccessful case in which the author was involved as an attorney.[6] Boston University School of Theology dean of student affairs Nancy Richardson was removed from her position by the school's administration in 1981.[6][7] Heins (at the time, an American Civil Liberties Union attorney) represented Richardson in a lawsuit against the school alleging sexism.[6][7][8]

Richardson and the school had differing views on affirmative action; she supported the concept, opposing the administration's hiring strategy for minority candidates. Heins provides background, including management's failure to hire several key candidates. One was Beverly Harrison, a professor at Union Theological Seminary in New York who was supported by the majority of the school's professors. Boston University President John Silber and nine other faculty members interviewed her for two hours, and Harrison was criticized for her support of feminism. School of Theology dean Richard Nesmith told the school's professors that Harrison's replies to questions from the ten faculty members in her interview were inadequate and she did not "cut the mustard".[8]

After the school did not hire Harrison, Richardson perceived a lack of support by school administration for women and minority faculty candidates. Associate Dean Nelle Slater was fired by Nesmith, who explained that the two did not "dance well".[8] Silber vetoed the appointment of Stephen Brech Reid, an African American academic supported by professors at the School of Theology. Nesmith and Silber then created a faculty position for white male sociologist Peter L. Berger, requesting input from students and professors (satisfying affirmative-action requirements) after deciding to give the job to Berger.[8]

These actions by President John Silber and Dean Richard Nesmith created strife with students and faculty at the School of Theology, including then-Dean of Students Nancy Richardson. Silber and Nesmith felt that to support the ideals of affirmative action meant simultaneously lowering standards of their academic hiring practices. Richardson, students and professors at the School of Theology instead believed that affirmative action helped to increase equality in a system where prior notions of merit had been created by white men.[8]

Richardson went to Dean Nesmith and advocated for affirmative action at the school, arguing that it would not result in decreased academic standards but rather the school management should reexamine its latent assumptions about race, women, and minorities. Richardson was fired in 1981; Dean Nesmith explained her termination was due to "pedagogical and ideological differences" with management at the school.[8]

Richardson sued, and argued in her suit that she was discriminated against by Boston University.[7] The author provides the reader with a discussion of the background of precedent established from prior cases on the subject, and laments how some of these court decisions in the past have contradicted each other.[6][7] In between discussion of the case itself, Heins debates decisions by the Supreme Court of the United States in the issue of affirmative action.[7]

Affirmative action in minority student admissions

Heins provides significant discussion in the book on the landmark Supreme Court case, Regents of the University of California v. Bakke on affirmative action in minority students admissions. The case was decided in 1978 and upheld the practice of affirmative action in the United States in admission of minority students. In the lawsuit, the affirmative action standards at UC Davis School of Medicine were challenged; the school had a practice of holding 16 out of a total of 100 slots for minorities in the incoming class of students. White potential student Alan Bakke challenged the affirmative action practice after having been rejected by the medical school. In an opinion written by Justice Lewis F. Powell, Jr., the Court ruled against racial quotas at the school while allowing for minority status to remain one among multiple decision criteria for the admissions decision process.[8]

Affirmative action in minority hiring

The author contrasts the Regents of the University of California v. Bakke case with the Supreme Court's 1971 decision in Griggs v. Duke Power Co. which ruled that employers did not have to willfully discriminate against employees in order to have violated Title VII of the Civil Rights Act of 1964. Chief Justice Warren E. Burger wrote that certain types of standardized tests given by employers could be seen as discriminatory even if that was not the original intent of the employer. Other cases discussed by Heins include the 1980 Supreme Court decision in Fullilove v. Klutznick, wherein the Court ruled as constitutional a law by the federal government requiring a certain percentage of overall funds for a building project to be used to benefit minorities.[8]

Affirmative action in sexual discrimination

The final Supreme Court cases discussed by Heins in the book include the 1987 ruling in Johnson v. Transportation Agency, Santa Clara Cty. followed by the Court's 1988 opinion in Watson v. Fort Worth Bank & Trust. The author characterizes Johnson v. Transportation Agency, Santa Clara Cty. as endorsing an affirmative action structure in a business in order to support female employees. Watson v. Fort Worth Bank & Trust came on the heels of this decision and found that subjective analysis of employees is subject to bias and necessitate explanation from the employer as to how this form of analysis is directly relevant to job performance.[8]

Heins' unsuccessful verdict

Subsequent to her discussion of Supreme Court caselaw of the time period, Heins moves on to recount the unsuccessful jury verdict which decided against her client by ruling that Richardson's firing by the school was not illegal. Heins takes the reader chronologically through the trial itself, including the evidentiary process and witness testimony. Following this analysis the book provides a discussion of the jury decision in the case. The jury found that Richardson honestly thought her school's management was conducting employment discrimination and thus also determined that her criticism of such practices were not in bad faith. However, the jury additionally determined that the school management did not actually fire Richardson due to her criticism of its employment and hiring practices. Heins criticizes this compromise decision by the jury in the case, and argues that it reflects the political biases of individual jurors rather than a true interpretation of the law as applied to Richardson's firing by the school management. In post-decision interviews the jurors explained they felt that it was the duty of employees such as Richardson to be respectful of those they reported to, and they determined Nesmith was one such managerial official in his capacity as Dean of the School of Theology.[8]

Reception

Harvard Law Review commented: "In this timely book, the author uses her experiences in that trial to examine issues that still vex university faculties and presidents", including academic qualifications for one's position.[7] Writing in the Tennessee Law Review, Stephanie A. Levin recommended Cutting the Mustard, "For a disturbing look at how ... standards are wielded to enforce conformity in the workplace".[9] Levin cited the work in a discussion about nurturing values and aggressive values and their respective place in the work environment.[9]

Women's Rights Law Reporter gave the book a positive review, and stated its only drawback was an insufficient analysis of the jury's decision in the Richardson case.[8] The review concluded: "... while Cutting the Mustard succeeds in presenting the debate over affirmative action by questioning traditional assumptions about merit through an absorbing account of personnel decisions at Boston University's School of Theology, an analysis of relevant Supreme Court decisions, and a description of the trial in Nancy Richardson's case, Heins fails to place that debate in a still broader political context."[8]

Traci C. West discussed the Richardson case in a section of the book From Midterms to Ministry, and recommended for more information on the conflicts that arose at Boston University.[10] Cutting the Mustard received an additional review in the Women's Review of Books.[11]

California Lawyer criticized the author's objectivity, and lamented that Heins did not spend enough time explaining why the case was decided against her client.[12] In a review published in Library Journal the book received critical commentary from Harvard Law School librarian Susan E. Parker.[6] Parker's review concluded that the book was: "Essential for followers of the case, but others deserve more substantive discussion."[6]

See also

References

  1. ^ a b c "Marjorie Heins Bio". The Free Expression Policy Project. fepproject.org. 2014. Retrieved February 9, 2014.
  2. ^ Heins, Marjorie (1972). Strictly Ghetto Property: The Story of Los Siete de la Raza. Ramparts Press. ISBN 978-0-87867-010-9.
  3. ^ Online Computer Library Center (2014). "Strictly Ghetto Property: The Story of Los Siete de la Raza". WorldCat. OCLC 554280. Retrieved February 9, 2014. {{cite news}}: External link in |publisher= (help); templatestyles stripmarker in |publisher= at position 1 (help)
  4. ^ Minnow, Martha (November 1988). "Book review: Speaking of silence". University of Miami Law Review. 43. University of Miami: 493.
  5. ^ Brodin, Mark S. (1990). "Accuracy, efficiency, and accountability in the litigation process -- the case for the fact verdict". University of Cincinnati Law Review. 59. University of Cincinnati: 15.
  6. ^ a b c d e f Susan E. Parker, Harvard Law School Library (1988). "Book review: Cutting the Mustard". Library Journal. Reed Business Information, Inc.
  7. ^ a b c d e f "Recent publication: Cutting the Mustard: Affirmative Action and the Nature of Excellence. By Marjorie Heins". Harvard Law Review. 101: 1986. June 1988.
  8. ^ a b c d e f g h i j k l Klein, Hilary B. (1989). "Book Review: Cutting the Mustard: Affirmative Action and the Nature of Excellence by Marjorie Heins". Women's Rights Law Reporter. 11 (1). Rutgers University; Accessed via HeinOnline: 61. ISSN 0085-8269.
  9. ^ a b Levin, Stephanie A. (Spring 1992). "Women, peace, and violence: A new perspective". Tennessee Law Review. 59: 611.
  10. ^ West, Traci C. (2008). "Learning to Build Christian Community: Males, Whites, Heterosexuals Wanted for Leadership". In Allan Hugh Cole (ed.). From Midterms to Ministry: Practical Theologians on Pastoral Beginnings. Wm. B. Eerdmans Publishing Co. pp. 240–245. ISBN 978-0-8028-4002-8.
  11. ^ "Cutting the Mustard". Women's Review of Books. 6 (88): 10.
  12. ^ Chamberlin, Leslie (1988). "Cutting the Mustard: Affirmative Action and the Nature of Excellence by Marjorie Heins". California Lawyer. 8: 59.

Further reading

External links


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