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Book Review : Title VII Tested at Boston University

January 21, 1988|JONATHAN KIRSCH

Cutting the Mustard: Affirmative Action and the Nature of Excellence by Marjorie Heins (Faber & Faber: $17.95, 220 pages)

Nancy Richardson, associate dean of "student and community life" at Boston University's School of Theology, reported to her boss, Dean Richard Nesmith, for an annual job performance review in May, 1981. They chatted about her Ph.D. course work, they chatted about his house in Maine. But Richardson knew she was in trouble when the dean announced that he wanted to "rearrange" her "relationship with the school."

"What are you telling me?" Richardson said. "Are you terminating me?"

"I intend to rearrange your relationship with the school," Nesmith replied, "and you would probably experience it as a termination."

Marjorie Heins, who tells the story of Nancy Richardson and her employment discrimination lawsuit against Boston University in "Cutting the Mustard," does not reveal whether Nesmith kept a straight face while uttering this absurd one-minute-manager's mumbo-jumbo. Heins is Richardson's lawyer, and she is understandably more interested in explaining the legal intricacies of the lawsuit.

Indeed, her book is a lucid explanation of Title VII of the 1964 Civil Rights Act, and the way it has been interpreted by the U.S. Supreme Court in affirmative action and employment discrimination cases. It's also an honest account of the realities of civil litigation with no attempt to jazz up what Heins calls "the sheer tedium and inefficiency of the process."

Victim of 'Office Politics'

But Richardson lost her case against Boston University. While Heins attempts to depict her client as the hapless victim of discrimination, Richardson appears to have been the victim of nothing more than pure "office politics" as it is practiced in the hothouse environment of the university campus. So the Richardson case is a curious choice for a book about "affirmative action and the nature of excellence."

Richardson was not hired through an affirmative-action program, nor did she administer one (although she claims to have been fired in retaliation for her comments about Boston University's hiring practices). Her job performance may not have justified her termination--but the case (and thus the book) often deteriorate into bickering over the real and imagined flaws in her work.

Did she fail to obtain $49,000 in grant money for the school? Or was it only $7,000? Did she properly consult with her boss before making up the committee to direct the theology school's annual student-faculty retreat? And how well did she handle the plague of rats--not the biblical one, but the infestation in a Boston University dormitory?

The villains of the piece are the white male administrators of Boston University and its School of Theology, especially university president John Silber and Richard Nesmith, dean of the School of Theology.

The author paints Silber as an autocrat, a controversialist, an academic in-fighter; she shows us Nesmith as a man with "a considerable gift for words," but the remark is mostly sarcastic. (As she does often throughout the book, Heins tends to damn with faint praise or to lay verbal ambushes within her own narrative. For example: "John Silber had liked Nesmith at the deanship interview," she deadpans. "The man fumbled but kept talking.")

Weakness for Wrong Words

Nesmith had a weakness for suggestive but inappropriate metaphors--Nesmith once praised Richardson because they were able to "stay in the saddle together."

To hear her attorney tell it, Richardson worked in an academic and theological snake pit.

In 1978, the School of Theology passed over a white female theologian in favor of a white male for an endowed chair in social ethics. Later, Nesmith fired a female associate dean because, according to Nesmith, the two of them did not "dance well" together. Then the school delayed a decision about appointing a young black male theologian to a "tenure-track" faculty position, and the young man took another appointment instead.

But the firing of Nancy Richardson appears to have been less a matter of intentional discrimination than sheer clumsiness and shortsightedness on the part of her boss.

The narrative chapters are punctuated with short discussions of the law of affirmative action and employment discrimination, and the agonized efforts of the U.S. Supreme Court to interpret the provisions of Title VII of the 1964 Civil Rights Act--the Bakke case, the DeFunis case, the Fullilove case.

Confusing Laws

Even Heins, however, admits that the law sometimes defies easy or even rational analysis, and she appears to concede that Richardson "was not herself a victim of race or sex discrimination."

"What was one to make of the Bakke-Weber-Fullilove trilogy, with their numerous opinions, their shifting judicial coalitions, their fine distinctions?" she muses. "Perhaps all three decisions had been worldly wise compromises. They neither ruled out affirmative action plans, nor ruled them all decisively in. There was something in the mass of words for everybody."

But not for Nancy Richardson, who was a victim only of arrogant, inflexible and unimaginative management--and what employee has not been a victim of the same, or at least felt that way?

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