Who Got It Right?

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Gallaudet University Chief Diversity Officer Angela McCaskill’s job was to promote a diverse and inclusive university community. Not only was she the institution’s first chief diversity officer, she was the first black, deaf woman to earn a Ph.D. from Gallaudet, which was founded to serve deaf and hard-of-hearing students. As Deputy to the President and Associate Provost for Diversity and Inclusion, McCaskill’s job included fostering and advancing a strategic and integrated approach to diversity priorities in all aspects of university life and establishing diversity priorities. As Chief Diversity Officer, she was responsible for enforcing guidelines for the university that ensured equity, inclusion, and social justice.

On July 12, 2012, McCaskill signed a petition supporting placement of a state constitutional amendment banning same-sex marriage on the November ballot. The petition was part of an effort to overturn a state law allowing same-sex marriage. In October 2012, a Gallaudet faculty member learned that McCaskill had signed the petition and filed a complaint with the university. This soon became widely known on campus, prompting concern among some students and faculty that McCaskill seemed to be advocating anti-gay views while serving as the university’s chief diversity officer. Gallaudet administrators decided that McCaskill’s ability to advocate for her constituents—in particular, the university’s gay community—had been compromised. McCaskill was placed on paid administrative leave, the decision was broadly publicized by pundits and the national media, and groups of all stripes and political persuasions cried foul.

Opponents of the marriage law said Gallaudet’s decision confirmed that the law would lead to intolerance toward persons of faith who oppose gay marriage. Marriage equality supporters, including Maryland’s governor, weighed in to say that McCaskill should not be penalized for expressing her personal views. One commentator pointed out that there had been no complaints about McCaskill’s performance of her professional duties, while another compared her to a high school physics teacher who believed the solar system to be a new creation. At a news conference one week after she was placed on leave, McCaskill said Gallaudet had violated her right as a citizen to petition the government.

A blog post by journalist Josh Swiller boiled the situation down to the real issue.:

[Gallaudet students] are all minority students, part of the seldom-seen, seldom-heard deaf minority. It can be incredibly difficult to find common ground and understanding between deaf and hearing people, more so than between races and sexual orientations. For deaf students diversity is not a politically correct buzzword. The support of diversity programs and laws are some of the most powerful tools Gallaudet students have in their quests to have satisfying lives rich in opportunity.

According to Swiller, Gallaudet’s students deserved inclusiveness, which McCaskill’s actions, on their face, did not support.

McCaskill initially stated that she had signed the petition at church, following a sermon advocating against gay marriage. As she was leaving, her husband pointed to the petition, and she signed it without giving it any thought. She later stated that her signature on the petition “solely represented her desire to have same-sex marriage vetted through public discourse.” According to McCaskill, her support for the petition did not mean she supported a ban on same-sex marriage. Rather, she was “expressing herself as a married, heterosexual, African-American, Christian woman/voter, who, through prayer and worship, searched for a means to enlighten Maryland voters on the issue of same-sex marriage in such a way to foster discourse, tolerance, and respect for the democratic process.”

Maryland voters narrowly upheld the same-sex marriage law on November 6, 2012.

McCaskill was reinstated as chief diversity officer, but, according to her subsequent lawsuit, not as Deputy to the President or Associate Provost. In addition, her budget was cut by 32 percent. When Gallaudet failed to restore her to her previous positions, McCaskill filed a lawsuit in federal court alleging in part that Gallaudet had discriminated against her on the basis of race, religion, marital status, sexual orientation, and political affiliation. On April 14, 2014, the court dismissed her claim, stating, “McCaskill . . . does not allege any facts here that could allow a jury to conclude that Gallaudet took prohibited actions because of her membership in any of her claimed protected groups. This omission is fatal to her discrimination claim.”

Ultimately, McCaskill lost the confidence of the university community, which suspected that she was not personally committed to equality. Gallaudet’s decision to keep McCaskill as chief diversity officer while stripping her of leadership responsibility may have seemed a reasonable compromise, but the question remains whether a commitment to diversity and inclusion must be manifested in one’s personal life to be real.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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