Julia Prewitt BROWN, Plaintiff, Appellee, v. TRUSTEES OF BOSTON UNIVERSITY, Defendant, Appellant, 891 F.2d 337

LEVIN H. CAMPBELL, Chief Judge. Julia Prewitt Brown, an assistant professor of English at Boston University sued in the Massachusetts Superior Court after she was denied tenure by defendants, the Trustees of Boston University (“University”). The University removed the case to the District Court for the District of Massachusetts. Alleging that she had been refused tenure because of her sex, Professor Brown contended that denying her tenure for that reason violated an anti-discrimination clause in the University’s collective bargaining agreement with its faculty.

A jury found in her favor on this contract claim; it awarded her $200,000 damages for the breach. Brown also brought claims for the alleged sex-based denial of tenure under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982), and under the Massachusetts anti-discrimination statute, Mass.GemL. ch. 151B, § 4 (1982).

Applying to these other claims the finding of sex discrimination made by the jury in the contract action, the district court ordered the University to pay Brown $15,000 in damages for emotional distress, enjoined the University from further sex discrimination against Brown and other faculty members, and ordered the University to grant to Brown the position of Associate Professor with tenure. Boston University appeals from the jury verdict, the award of tenure, and the injunction from further sex discrimination.

We affirm the findings of liability and the tenure award, but slightly modify the anti-discrimination injunction. I. Background In the fall of 1974, plaintiff Brown began working at Boston University as an Assistant Professor of English Literature, on the tenure track. Tenure candidates had to teach for six years before being eligible for tenure. During the sixth year the candidate was evaluated in three areas: scholarship, teaching, and service to the university. Excellence had to be demonstrated in two of the three areas. Brown came up for tenure in the academic year 1979-80.

At this time the ground rules for tenure review were spelled out in a recently negotiated collective bargaining agreement (“Agreement” or “Contract”) between the Boston University

Chapter of the American Association of University Professors (“Chapter”) and Boston University. The process was to last the entire academic year, progressing through a series of committee and individual reviews culminating in a review by the President of the University, who then made a recommendation to the Trustees. The Trustees made the final decision to grant or deny tenure. Brown prepared a dossier describing her accomplishments.

Under the heading “Research and Publication,” she listed a book, Jane Austen’s Novels: Social Change and Literary Form, a revision of her Ph.d dissertation that had been published by the Harvard University Press, and three book reviews or review essays. Brown listed “all reviews, discussions and major citations” of her book, which included a review in the New York Times Sunday Book Review, four other reviews, two “readers’ reports” from Harvard University Press and a letter from Harvard University Press concerning a second printing of the book.

Under “work in progress” Brown listed a proposed book about Oscar Wilde. During academic years 1979-80, the year of her tenure review, she had received a Mellon grant to research and write this book, as well as to teach at Harvard University. Brown attached to her tenure dossier the six page prospectus describing her planned study of Oscar Wilde that had earned her the $16,000 Mellon grant.

Under the category of teaching, Brown listed the courses she had taught at Boston University, including two she had developed, “Fiction and National Character” and “Freud and the Victorian Novel.” In respect to advising, she stated that she advised 15-20 undergraduates in composing their class schedules, spending about an hour per year with each student.

She also described her activities on a committee that assisted undergraduate English majors in choosing a graduate school, and noted that, in 1977-78, she conducted a “woman’s literature discussion group for graduate students which met informally once every two weeks.” In the category of service to the University, Brown noted that she had been asked to assist in editing the “Partisan Review” for 1979-80, and listed service on various Boston University committees. The first stop for Brown’s file was a committee composed of all the tenured professors in the English department.

The department committee voted unanimously, by a vote of 22-0, to promote her to Associate Professor with tenure. The department chairman’s rationale included high praise for Brown’s teaching and scholarship. On September 14,1979, the chairman wrote, “[a]s a teacher, Judy .Brown has two talents in rare combination. She has a very detailed and exact grasp of works of literature and she is able to see them in a larger cultural and historical perspective.” The chairman stated that Brown’s book on Jane Austen had been widely recognized by noted critics.

He opined that “[i]t is rare for an older, let alone a younger, critic to write an important book on a major writer ... but Judy Brown has done so.” In describing the book, the chairman noted Brown’s “sensitivity to the fact that Jane Austen was a female novelist.” The recommendation continued, “Professor Brown has the requisite literary tact to write about Jane Austen as a female writer without the ideological distortion and special pleading that sometimes mar such criticism.” The next review was by the Appointments, Promotions and Tenure Committee (“APT”) of the College of Liberal Arts (CLA).

This committee also recommended tenure, again unanimously. The committee’s report described her as an “excellent teacher” and “a first rank ... scholar,” saying that “she is bound to become a most distinguished and nationally recognized critic and scholar.” On December 7, 1979 the APT sent its report to the Dean of the CLA. Before making his own recommendation, the Dean met with Brown. At that meeting, the Dean gave Brown the opportunity to answer criticism received in a letter solicited from an outside scholar in Brown’s field. The Dean also asked Brown about the amount of time she spent advising students.

After this meeting, the Dean recommended promotion and tenure. However, the Dean’s report contained reservations about Brown’s “historical scholarship,” citing certain negative comments in a review and in the outside scholar’s letter. The Dean recommended that subsequent reviewers solicit the view of an historian from Harvard University. He suggested that if the criticisms of the historical scholarship in Brown’s book proved to be valid, the University should offer Brown a three year extension of her probationary period, so that her work on Oscar Wilde could be evaluated.

The Dean also characterized Brown’s teaching as “fine,” but expressed concern that she did not spend enough time advising students. The Dean sent a letter to Brown informing her that he had recommended her for tenure, but not mentioning the reservations he had expressed or his recommendation of a possible three year extension. The week after the Dean completed his evaluation, Brown sent him a letter, along with additional material for her file.

The letter dealt with the amount of time Brown spent advising students, saying that in addition to helping her advisees to prepare their schedules, she had office hours for four hours per week, of which most of her advisees took advantage. She included in the letter the names of three former advi-sees who would speak on her behalf. Brown also informed the Dean that her book had been nominated by the Harvard University Press, along with four others, for the James Russell Lowell Award, sponsored by the Modern Language Association.

Notwithstanding the Dean’s reservations, Brown received a further positive vote at the next level of review, a University-wide APT, which recommended tenure and promotion by a vote of 9-2. The committee report to the Provost concluded that “Dr. Brown is a serious and committed teacher-scholar who at a very early age has already made her imprint in one of the toughest and most competitive of fields_” Next, at the level of the Provost's review, an Assistant Provost, Simon Parker, evaluated Brown’s candidacy.

Parker’s memo to the Provost expressed concern about the quality of Brown’s book, although he praised the book generally. Parker recommended a three year extension, stating that “Brown’s publishing achievements are limited in quantity to a revised dissertation and three book reviews ....

The three year extension will enable her to finish this major independent work [the Oscar Wilde book], and prove whether she is able to sustain and improve the quality of her work as a maturing humanist.” Soon after the Assistant Provost completed his assessment, Brown requested from her department head a maternity leave of absence for the upcoming semester, which was granted. Next, the Provost concurred with Parker’s assessment and advised Brown that he had recommended to the University’s President, Dr. John Silber, that she be given a three year extension.

Since the three year extension clause of the agreement required the concurrence of Brown and all three committees, her candidacy was again put to a vote. The 23 tenured members of the English department sent a letter to the Provost stating that “[i]t is the unanimous view of the Department that your recommendation ... does not take into account the substance of the case for Professor Brown made by the Department and Faculty Committees” and urging the Provost to make a recommendation of tenure.

The College APT sent a brief memo stating that it “wish[ed] to reaffirm our original unanimous recommendation for tenure and promotion for Professor Brown.” The University APT, which originally had voted 9-2 for tenure, wrote that its members agreed Brown’s scholarship “had reached sufficient maturity to warrant our recommendation.” The minutes of the Committee’s meeting reveal that the “Committee unanimously (10/0) agreed to reaffirm its original positive recommendation.

The members did not wish to reject the extension in the event that Professor Brown agreed to it.” Another exchange of letters between the Provost and the Department resulted in the unequivocal statement of the Department Chairman that “the [Department] Committee ... refused to assent to a three year extension for [Brown] by a unanimous vote.” On the same date, Professor Brown wrote to the Provost indicating that she did “not accept the recommendation of a three year extension.” In response, the Provost informed Brown that he had recommended against tenure.

Because the Provost’s recommendation was not in accordance with the judgments of the College and University APTs, Brown’s case was forwarded to a three-member ad hoc Tenure Review Committee. The Agreement provided that the ad hoc Committee shall be composed of three impartial persons from outside of Boston University who shall be acknowledged authorities in the candidate’s field or academic specialty. One of these three persons shall be designated by the Provost, one by the University APT, and one by mutual agreement between the two persons already designated.

The ad hoc committee voted for tenure by a margin of 2-1. The committee’s report stated that the committee found Professor Brown’s book on Jane Austen to be a substantial contribution to Austen studies.... [W]e evaluated the book as useful and sometimes brilliant; we were not much impressed by its historical dimensions and found the statements about historicity a bit misleading. We agreed that the mind behind the book was a first-rate one, one that perhaps still had some maturing to do, but one that was capable of excellent original critical thinking.

The report also stated, “[w]e all regretted that we had no further work on which to judge Professor Brown; one committee member felt that such a lack of evidence of wider commitment was crucial....” Upon receipt of the ad hoc committee’s report, the Provost reported to President Silber that “[t]he report does not give a strong, unqualified endorsement of the candidate’s work.

Rather it confirms my earlier judgment that Professor Brown has not yet established a sufficiently strong scholarly record to merit tenure at Boston University.” President Silber then informed Brown that “I shall recommend to the Trustees that tenure not be granted.” Brown subsequently wrote to ask President Silber to reconsider her case, making several charges of unfair treatment and irregularities over the course of her tenure candidacy.

Brown raised the issue of sex discrimination, telling President Silber that “[o]ne of the main problems that women in my profession have is that they are frequently put under the microscope, in a way that men often are not, when seeking promotion.” Brown compared her qualifications to those of several men who had been granted tenure in her department and in the year of her candidacy, saying that both the Dean and the Provost may have held women to higher standards than those imposed on men who had been granted tenure.

The Dean, Brown said, singled her out for unusual treatment, recommending that her work be reviewed by someone outside her field, a historian, when he made no such recommendation concerning the candidacies of several men who were up for tenure. Brown also suggested that the Provost’s treatment of her case had been more exacting than his treatment of men candidates. Brown asserted that although the Provost’s expressed concern was with the quantity of Brown’s scholarly work, the Provost had recommended tenure for another man in Brown’s department who had produced a smaller amount of scholarly work.

President Silber responded that he had reviewed Brown’s case as she requested, but that he would stand by his earlier decision. On President Silber’s recommendation, the Trustees denied Professor Brown tenure. Soon after receiving President Silber’s final letter, Brown brought suit in the Massachusetts Superior Court, alleging that Boston University had violated the Agreement by discriminating against her on the basis of her sex. Boston University removed the suit to the United States District Court for the District of Massachusetts, alleging subject matter jurisdiction under

Section 301(

a) of the Labor Management Relations Act (“Act”), 29 U.S.C. § 185(a) (1982), which confers federal jurisdiction over “[sjuits for violation of contracts between an employer and a labor organization representing employees....” After completing the required administrative procedures, Brown amended her complaint to include claims that the University’s actions violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and the Massachusetts anti-discrimination statute, Mass. Gen.L. ch. 151B § 4. Prior to trial, the University moved for

summary judgment as to Brown’s contract claims and for denial of Brown’s jury demand as to all counts. The district court refused to grant

summary judgment against Brown on her claim that the University had violated the Agreement. The court ruled that Brown was entitled to a jury trial on the contract claim, because “[a] complaint which alleges a breach by an employer of a collective bargaining agreement in which the plaintiff seeks back pay states a claim for legal damages, and the plaintiff has a right to trial by jury on that claim.” Recognizing that Brown had no right to a jury trial on either the Title VII or the

Chapter 151B claims, the court ruled that Brown’s right to a jury trial on her contract claim extended to all issues common to the three separate claims. See Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974). The most important factual issue common to the three claims was whether Boston University had denied Brown tenure because of her sex. Brown’s evidence at the trial compared her qualifications, including her published writing, with those of others, particularly males, in English and related fields who had been granted tenure.

She placed in evidence the voluminous tenure files of herself and of the allegedly “similarly situated” faculty members. She called as witnesses several Boston University professors, including two former heads of the English Department, who had participated in her own tenure review as well as the tenure reviews of others during this period. Several witnesses interpreted scholarly reviews and gave their opinions on how to compare the various files. The thrust of Brown’s comparative evidence was that she had been held to a stricter standard than her male peers.

Brown also presented evidence of alleged irregularities in her tenure review, particularly with regard to the inclusion of the single dissenter on the ad hoc committee, whom Brown sought to show was a longtime associate of President Silber’s, had previously clashed with faculty in Boston University’s English Department, and was not, in Brown’s view, an “acknowledged authority” within Brown’s academic specialty, as required by the Agreement. Brown also introduced evidence from which she argued the jury could infer that President Silber and the Dean of the CLA harbored discriminatory attitudes towards women.

The University called as witnesses Geoffrey Bannister, the Dean of the College of Liberal Arts; Simon Parker, the Assistant Provost; and John Silber, the President of the University. They testified that Brown was denied tenure and instead offered a three year extension, because of good-faith, non-discriminatory concerns regarding the adequacy of her scholarship. The district court told the jury to decide whether Brown had met her burden of persuading them that the reason offered by the University for denying her tenure was a pretext for discrimination based on her sex.

A special verdict form was handed to the jury. Among the questions on the form was “Do you find that the Trustees at Boston University refused to grant tenure to the plaintiff because of her sex?” The jury answered this question “yes,” and found damages in the amount of $200,000 as a consequence of the breach of contract. Although recognizing that Brown’s claims under federal and state civil rights statutes were not, by themselves, triable to a jury, the court held that the jury’s finding of sex discrimination under the contract claim was determinative of the University's liability under the two statutes.

The district court determined that under those statutes, Brown was entitled to $15,000 for emotional distress and reinstatement to the position of associate professor with tenure. The district court also enjoined the University “from discrimination on the basis of sex with respect to the appointment, promotion and tenure of faculty members, and in particular with respect to the promotion, salary or other benefits to which the plaintiff may become entitled,” and awarded Brown her reasonable attorneys’ fees and expenses of suit.

The district court denied the University’s subsequent motions for judgment notwithstanding the verdict and for a new trial. On appeal, the University alleges error in the court’s evidentiary rulings and in the jury charge. The University also contends that the district court lacked jurisdiction over the contract claim, hence erred in applying the jury’s sex discrimination finding to the federal statutory claims. Further, the University contends that the district court’s award of tenure impermissibly intruded into the operations of the University, and that the anti-discrimination injunction is overbroad. II.

Applicable Law Title VII of the Civil Rights Act of 1964 provides [i]t shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin. 42 U.S.C. § 2000e-2(a)(l). When Title VII originally was enacted, Congress exempted from it educational institutions.

In 1972, however, Congress removed this exemption, in response to widespread concern about employment discrimination in educational institutions. See H.R.Rep. No. 238, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Admin.News 2137, 2154-55 (“Discrimination against minorities and women in the field of education is as pervasive as discrimination in any other area of employment.... [Wjomen have long been invited to participate as students in the academic process, but without the prospect of gaining employment as serious scholars ....

The committee cannot imagine a more sensitive area than educational institutions where the Nation’s youth are exposed to a multitude of ideas that will strongly influence their future development. To permit discrimination here would, more than in any other area, tend to promote misconceptions leading to future patterns of discrimination.”); H.R.Rep.

No. 554, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Admin.News 2462, 2511-12 (noting that female faculty at institutions of higher learning were, in 1972, much less likely to be associate or full professors and that in 1965-66 the median salary of female full professors was $11,-649 compared with $12,758 for men). Title VII strikes a balance between protecting employees from unlawful discrimination and preserving for employers their remaining freedom of choice. Price Waterhouse v. Hopkins, — U.S. —, 109 S.Ct. 1775, 1785-86, 104 L.Ed.2d 268 (1989).

In tenure eases, courts must take special care to preserve the University’s autonomy in making lawful tenure decisions. [C]ourts must be extremely wary of intruding into the world of university tenure decisions. These decisions necessarily hinge on subjective judgments regarding the applicant’s academic excellence, teaching ability, creativity, contributions to the university community, rapport with students and colleagues, and other factors that are not susceptible of quantitative measurement. Absent discrimination, a university must be given a free hand in making such tenure decisions. Kumar v.

Board of Trustees, University of Massachusetts, 774 F.2d 1, 12 (1st Cir.1985) (Campbell, C.J., concurring), cert. denied, 475 U.S. 1097, 106 S.Ct. 1496, 89 L.Ed.2d 896 (1986). At the same time, however, an employee’s right not to be denied tenure for discriminatory reasons prevents insulating the tenure process from any judicial review.

As in other forms of employment, an inference of discrimination can be derived from a showing that a university’s given reasons for denying tenure to the plaintiff were “obviously weak or implausible,” or that the tenure standards for prevailing at the tenure decisions were “manifestly unequally applied.” Id. at 15.

The essential words here are “obviously” and “manifestly.” A court may not simply substitute its own views concerning the plaintiff’s qualifications for those of the properly instituted authorities; the evidence must be of such strength and quality as to permit a reasonable finding that the denial of tenure was “obviously” or “manifestly” unsupported. In this case, Brown’s burden was to show that the University manifestly applied an unequal standard to her tenure application. III. Evidentiary Issues A.

Testimony of Professors Goodheart, Craddock, Vendler and Speisman and excluded testimony of Professor Clarke The University protests permitting four professors — Professor Goodheart, who served as Chairman of the English department at the time of Brown’s tenure candidacy, Professor Craddock, Professor Speis-man, and Professor Vendler — to compare Brown’s qualifications with those of other faculty members considered for tenure at Boston University. The University also complains that the district court erred in excluding the testimony of Professor Clarke, who chaired the College APT.

Clarke would have testified that his vote for Brown was premised on a misperception of her progress on the Wilde book. We do not find prejudicial error. The University contends that the four professors’ testimony should have been excluded both because the testimony invited the jury to substitute its own tenure judgment for that of the University, and because these professors’ testimony had not, as such, appeared in Brown’s tenure file and, therefore, was unavailable to the University when it decided Brown’s case.

Federal Rule of Evidence 402 allows the admission of all relevant evidence and prohibits the admission of irrelevant evidence. Rule 403 permits the exclusion of relevant evidence of its probative value is outweighed by the danger of unfair prejudice or comparable factors. “A trial judge has much latitude in these matters.” Dente v. Riddell, Inc., 664 F.2d 1, 5 (1st Cir.1981) (citations omitted). “A district court’s ultimate determination in such a situation is reviewed on appeal only for abuse of discretion.” United States v.

Gonsalves, 668 F.2d 73, 75 (1st Cir.), cert. denied, 456 U.S. 909, 102 S.Ct. 1759, 72 L.Ed.2d 168 (1982). We see no abuse of discretion in admitting this evidence. Insofar as the four professors’ testimony tended to show that the qualifications of others granted tenure were beneath Brown’s known qualifications, it was relevant to create an inference that the University’s criticisms of Brown’s scholarship were pretextual.

A sex discrimination plaintiff may attack the motive advanced by the university in one of two ways: she may try to show that the motive is not worthy of belief; or she may try to show that in fact some other motive explains the university’s action better than the motive offered. ... To prove the proffered motive is not worthy of belief, evidence of a comparative sort is appropriate: if others were hired or promoted though by the same reasoning they ought to have been excluded, then the motive is a “pretext.” Namenwirth v.

Board of Regents of University of Wisconsin System, 769 F.2d 1235 at 1240 (7 Cir.1985) (citations omitted). To be sure, in balancing the probativeness of evidence like this against its danger for unfair prejudice, a court should realize that comparing the qualifications of others granted tenure with those of plaintiff presents the risk of improperly substituting a judicial tenure decision for a university one.

To admit such comparative evidence, the trial court must be satisfied, and we must later be satisfied on appeal, that the evidence is so compelling as to permit a reasonable finding of one-sidedness going beyond a mere difference in judgment. That criterion was met here. The English Department voted 22-0 for tenure; the CLA APT was unanimous; the University-wide APT was almost unanimous at first and was unanimous a second time. The outside Tenure Review Committee favored tenure 2-1.

The witnesses whose testimony is challenged included two former department heads who were well acquainted with the tenure process and with those who had been tenured or rejected around Brown’s time. They testified that Brown was either superior or equal to the other candidates who had received tenure. They testified that none of these others had been required to write a second book. The first book of the others, rewritten from a thesis, had sufficed. One had not written any book.

Yet notwithstanding acceptance and publication of Brown’s book by a leading university press, the Assistant Provost and President, while acknowledging Brown’s promise, insisted that she needed to do more to qualify for tenure. The court was entitled to conclude that a reasonable jury might in these circumstances properly find that the denial of tenure to Brown was “manifestly” unequal. The University contends that the court improperly admitted as probative of Brown’s scholarly credentials evidence of which the University lacked any knowledge when it denied tenure.

We do not find this happened, except in two unimportant instances later discussed. Professor Goodheart and Professor Crad-dock compared Brown’s qualifications with other members of the English department who were reviewed for tenure within a few years before and after Brown’s review. While their specific testimony had not, of course, been presented to those who considered Brown at an earlier time, it rested upon, and evaluated, the contents of the relevant tenure files. Those files had been before the reviewing authorities and were in evidence at trial.

The University was free to present, and did present, evidence of contrary opinions as to Brown’s comparative qualifications. Professor Speisman’s testimony compared Brown’s qualifications to those of the other candidates in the year of Brown’s review. Although his opinion that Brown was among the top four candidates was not expressed as such in any of the tenure files, he testified that it was possible to reach such a conclusion from reading the APT reports about the candidates. The APT reports were available to the University at the time it evaluated Brown.

The Provost and President could present their own different conclusions from their own readings of the reports. As with the other opinion testimony, the University could introduce contradictory evidence of its own concerning the significance of the APT reports. Professor Vendler’s testimony similarly rested upon information that was available to the University at the time it evaluated Brown. In addition to comparing Brown’s qualifications with those of others in the English Department, Yendler gave her opinion to the jury as to how to interpret the various scholarly reviews of the candidates’ books.

Both the reviews and publications were in evidence and had been before the persons evaluating the different applicants. Whether the reviews were “good” or “bad” was a disputed point. Evaluating them depended to some degree on the reputation of the reviewer in the field of the publication. It was within the court’s discretion to allow expert opinion on this subject. The University contends that the exclusion of Professor Clarke's testimony was prejudicial error.

The University sought to have Clarke, the chair of the College APT, testify that he and other members of the committee were under the mistaken impression that Brown’s book about Oscar Wilde was “forthcoming,” and that this influenced the vote in Brown’s favor. The district court excluded this testimony, ruling that Clarke’s thoughts, other than his “yes” or “no” vote, were not available to the University at the time it made the decision regarding Brown’s tenure.

We believe that Clarke should probably have been permitted to so testify, although the University was less than clear as to the purpose for which it was offering the testimony. The court understood that the University was offering Clarke’s testimony merely to impeach his previous affirmative vote for Brown. Why Clarke voted as he did was irrelevant, since only the vote appears in the tenure file, and there was no reason to let Clarke impeach the vote. A proper reason to have accepted Clarke’s testimony, however, was that it demonstrated Clarke’s opinion that progress on the Wilde piece was important.

President Silber and Assistant Provost Simon later testified that one reason for withholding tenure for three more years was to await Brown’s work on the Wilde piece. Clarke’s testimony would have tended to show that their judgment in this regard was a reasonable one. Assuming, without deciding that the district court abused its discretion in not permitting Clarke’s testimony for this purpose, we do not find that the ruling prejudiced the University. The University introduced ample other evidence that a reasonable reviewer would be interested in the development of Brown’s work subsequent to her first book.

The Dean testified to this effect, and the report of the ad-hoc tenure committee, which was introduced into evidence, referred to the Wilde book, and stated that all three members (two of whom voted for tenure) “regreted that [they] had no further work on which to judge Professor Brown; one member felt that such evidence of wider commitment was crucial.” Particularly given the University’s failure to make clear that Professor Clarke’s testimony was being sought as evidence of an expert’s opinion on the importance of the Wilde piece, we do not find reversible error in its exclusion.

There were two instances where the court improperly admitted testimony going to Brown’s credentials which was not in her tenure file and was not otherwise admissible. First, the district court allowed Professor Craddock to testify about Brown’s reputation within her field outside the University. Professor Craddock testified that Brown had established a reputation within her field among Craddock’s colleagues outside the University that “would have been a credit to the [English] Department.” Since Craddock did not indicate that the University administration knew of this, it was irrelevant to show bias.

We see no harm from this testimony, for two reasons. First, the APT report in Brown’s tenure file makes substantially the same point. [H]er scholarly accomplishments have been widely recognized. In a highly competitive field, her book was well reviewed in three very reputable journals (Yale Review, Kirkus Review, Library Journal) and in the New York Times Sunday Book Review.... [B]rown has already made her imprint in one of the toughest and most competitive of fields: English literature. (Emphasis added).

Second, the district court gave the jury cautionary instructions on six occasions, three times during the trial and three times during the charge, not to substitute its judgment for that of the University on the issue of tenure. We find no prejudice to the University on this score. The University also attacks admission of Professor Goodheart’s following testimony: Q. How does the quality of Brown’s book compare with books you review as part of the Emerson Prize Committee? A. ...

I would have to see the other books, as well, to make the comparison, but, since I have read in this competition for three years, I know what the quality of the run of books is.... Q. How did Julia Brown’s book compare to those books which made the finalist rounds, in terms of quality? A. I think it is a comparable piece of work. I would certainly recommend it for further consideration. Whether it entered in the final round would depend upon the other books in the competition. That is speculative. That is hypothetical. We see no material prejudice to the University from this testimony.

It was, at best, a feeble endorsement of Brown’s book. It was largely repetitive of material already found in Brown’s tenure file. Professor Goodheart himself prepared the Department Chairman’s report which was a part of Brown’s tenure file. In that report, he described Brown’s book as “admirable.” He also stated “[t]he distinction in Professor Brown’s book is immediately manifest in the lucidity, elegance, and wit of the prose.” Brown’s tenure file contained the information that her book had been nominated for another prestigious prize.

Any incremental increase in the jury’s estimation of the book’s praiseworthiness that may have resulted from Goodheart’s testimony was negligible. B. Evidence of Remarks by President Silber The University challenges admission of remarks made by President Silber in 1982 and 1983, after Brown’s tenure candidacy, relative to another female tenure candidate, Bonnie Costello. While being considered for tenure, Professor Costello was offered a tenured position at another university.

As permitted by a provision in the collective bargaining agreement, Costello had asked President Silber to expedite her Boston University tenure review so that she could more intelligently deal with the other offer. Initially, Professor Craddock, then Chairman of the English Department, met with President Silber to discuss Costello’s situation. Silber refused to speed up the process, although he did say that, when the file came to his desk, he would act on it swiftly.

Professor Craddock testified that President Silber remarked that Costello was an outstanding scholar, saying “I don’t see what a good woman in your department is worrying about. The place is a damn matriarchy.” A few months later, Costello herself met with President Silber. Silber again refused to intervene in the tenure review process, telling Costello that a person with her credentials would do well “and anyway, I never worried about job security, and your husband is a parachute, so why are you worried[?]”.

Professor Costello rejected the outside offer and later in the year was granted tenure at Boston University. Brown also presented evidence that President Silber and the administration had expedited review in the case of a male professor who had received an outside offer. Admission of evidence of these matters was not an abuse of the district court’s discretion. Other courts have held that prior discriminatory conduct is recognized as probative in an employment discrimination case on the issue of motive or intent. See Fed.R.Evid. 404(b).

The Seventh Circuit has remarked, “[gjiven the difficulty of proving employment discrimination — the employer will deny it, and almost every worker has some deficiency on which the employer can plausibly blame the worker’s troubles — a flat rule that evidence of other discriminatory acts ... can never be admitted without violating Rule 403 would be unjustified.” Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417, 1423 (7th Cir.1986).

Accordingly, “[t]he question of the legitimacy of the employer’s motivation in firing the employee ... is one upon which past acts of the employer has some bearing.” Morris v. Washington Metropolitan Area Transit, 702 F.2d 1037, 1045 (D.C.Cir.1983). See also Hunter, 797 F.2d at 1423-24 (in an employment discrimination action, evidence of harassment against other black workers besides plaintiff was admissible to show that defendant “condoned racial harassment by its workers and [to] rebut[] [defendant’s] defense that it had fired [plaintiff] for cause”); Scaramuzzo v.

Glenmore Distilleries, Co., 501 F.Supp. 727, n. 7 (N.D.Ill.1980) (“Evidence of past discrimination of an employer may in some circumstances support the inference that such discrimination continued”). Cf. Jay Edwards, Inc. v. New England Toyota Distributor, Inc., 708 F.2d 814, 824 (1st Cir.) (in dealer’s action against distributor claiming bad faith actions on the part of distributor, evidence of distributor’s actions with other dealers was admissible on the issue of distributor’s intent regarding its dealings with plaintiff), cert. denied, 464 U.S. 894, 104 S.Ct. 241, 78 L.Ed.2d 231 (1983).

Derogatory remarks indicative of a discriminatory attitude are also admissible in a proper case. See Hunter, 797 F.2d at 1423 (in employment discrimination action, evidence that supervisor called blacks “niggers” was admissible to show what supervisor’s racial attitudes were). Cf. Carson v. Polley, 689 F.2d 562, 571-73 (5th Cir.1982) (performance evaluation report stating that defendant had a bad temper was admissible to show intent in action for assault and battery). President Silber’s conduct and comments were far weaker as indicative of a discriminatory attitude than those we have mentioned.

While Silber did not expedite review in Costello’s case, he did offer her tenure. Still, his comments reflected a patronizing attitude toward women — an attitude that might possibly have affected his earlier decision in Brown’s case. At the time Silber called the English Department a “damn matriarchy,” it had a female chairman and six other tenured female professors from among a total of 26 tenured English professors. That so small a proportion of women could provoke this comment suggests that the President might not be indifferent to the gender of a tenure applicant.

Silber’s “parachute” remark, especially when made in an official setting, likewise suggested a preoccupation with gender in a context where both the contract and the law would expect a sex-blind approach. To be sure, it is a tremendous leap to infer from remarks such as these that President Silber denied Brown tenure because of her gender. Besides recommending tenure for Costello, the evidence showed that President Silber had recommended tenure for many women. Nonetheless, the court correctly left the significance of the remarks to the jury.

A judge should not exclude evidence which a reasonable jury might find relevant unless its probative value is substantially outweighed by the danger of unfair prejudice. Fed.R. Evid. 403. That the remarks occurred subsequent, rather than prior, to the allegedly discriminatory conduct does not alter their admissibility. The jury was entitled to infer that any discriminatory animus toward women manifested in 1982 and 1983 would have existed in 1980 and 1981, when President Silber acted on Brown’s case.

Evidence of a discriminatory cast to the views of one person in a university community might not, of course, be probative if the individual’s role in the tenure decision were minor. President Silber’s recommendation, however, was the final and most important one in the chain of tenure recommendations. He provided leadership to the University community. The jury could have inferred that the Provost and Dean, the other administrators who expressed doubts about Brown’s suitability, would have been sensitive to the President’s attitudes concerning tenure candidates.

The reason given by the Provost and President for withholding tenure went not to Brown’s teaching ability nor to any deficiencies in her service to the university community, but to her lack of academic excellence. Yet Brown was recommended for tenure by virtually all of her academic peers, both in her own department and outside. It could be concluded that her academic reputation was superior to many who were tenured.

In such circumstances, the district court was entitled to permit plaintiff to focus on the personality and predilections of the President, insofar as these suggested that he held a more traditional view of the woman’s place. While we thus uphold evidence of the Costello interchanges, we do not sustain the court’s admission of a portion of a speech given by President Silber at a Freedoms Foundation Symposium on Citizen Responsibilities in 1984. In the speech, Silber discussed the decline of the traditional family and the consequential deterioration of children’s education.

He stated, the number of working mothers — that is, the proportion of children who do not have even one parent at home during the day — has increased sharply_ [T]he number of working wives — as opposed to working mothers with children under 18 —rose from 26 percent to 46 percent. Lack of parental supervision associated with both parents working explains in part that children typically watch 24 hours of television a week.

Brown asserts that this speech was relevant to show President Silber’s view of working women, possibly explaining his motive in denying Brown tenure, especially in view of Brown’s pregnancy and the birth of her first child during her tenure review. To our minds, this evidence is far afield. While evidence of closely related discriminatory conduct and remarks may be admissible in a case like this, it does not follow that plaintiffs may present ambivalent evidence. President Silber did not denigrate women in his speech.

He did not say that women should not work; least of all did he suggest that professional women or others who might be able to obtain child care elsewhere should be denied promotion on merit. He merely quoted statistics showing the dimensions of a social problem that few people would deny exists, whatever the proper solution may be. It is an untenable leap from such a speech to the inference that the author would deliberately deny tenure to a qualified faculty member. Its relevance, if not quite zero, is close to that.

While one would hope that jurors would see them for what they are, there is the danger such red-herrings, skillfully manipulated, could cause a jury to stray. We fear, moreover, the chilling effect that admission of such remarks could have on academic freedom. Use of such evidence in a court of law could cause a university president, dean or teacher to avoid topics of this kind altogether for fear that one or two sentences might later be used as evidence of alleged discriminatory animus. It was error to admit these remarks.

While we hold that the evidence should have been excluded, we do not believe that it effected the outcome of the trial. As we have said, the evidence is without probative value of sex discrimination. That children watch television because their mothers are not at home is a position commonly advocated in the press (and on television itself). To be sure, the matter was mentioned by plaintiffs counsel in closing argument. Nonetheless, while we find the error regrettable, we think it highly unlikely that these remarks, in a trial of this complexity and length, would have had an effect on the outcome.

We, therefore, do not find the improper admission of this evidence to be prejudicial error. C. Evidence of the Dean’s Attitude Toward the Women’s Studies Program The University next challenges the district court’s admission of a letter written by the Dean concerning a Women’s Studies Program. Boston University offered a minor in Women’s Studies, for which students were required to take a core course and a number of courses from a list of approved electives. Professor Brown never taught Women’s Studies, but some of her courses were included on the list of electives.

In 1978, the Dean of the CLA, who was the first to express reservations about Brown’s scholarship, wrote a letter responding negatively to a request for funding for a half-time director for the Women’s Studies program. The University argues that the Dean’s letter should not have been admitted, because Brown failed to show how the Dean's views on the Women’s Studies Program had any bearing on her tenure. Brown argues that the evidence at trial showed that the approach in Brown’s book was characterized by many as “a feminist

interpretation” of Jane Austen. Brown further argues that the Dean’s reservations about Brown’s historical scholarship may have resulted from his general doubts about feminist scholarship. For the same reasons given as to the President’s speech, we hold that the district court erred in admitting this evidence. A panel of the Ninth Circuit has held that evidence of contempt for women’s issues generally may in some circumstances be probative of a discriminatory attitude. See Lynn v.

Regents of the University of California, 656 F.2d 1337, 1343 & n. 5 (9th Cir.1981) (“A disdain for women’s issues, and a diminished opinion of those [including men] who concentrate on those issues, is evidence of a discriminatory attitude towards women.”), cert. denied, 459 U.S. 823, 103 S.Ct. 53, 74 L.Ed.2d 59 (1982). But whether or not this is so in proper circumstances, we do not see how the Dean’s expression of reservations about a particular academic department had, by itself, any tendency to show a discriminatory animus against women.

Like the evidence of President Silber’s speech, the admission of this kind of evidence totally removed from the incident that is the subject of the law suit worries us because of its effect on free speech in a university. A dean should not have to fear that he cannot express his opinion as to the quality of a particular studies program without this criticism being brought forward as evidence of sexism. Still, when read in the context of this particular trial, we are not persuaded that the outcome was affected by the admission this evidence. We hold that the admission of this improper evidence was harmless error.

In addition to challenging the admission of much of Brown’s evidence, the University argues that “the relevant, properly admitted, evidence is insufficient as a matter of law to support a finding of sex discrimination against the University.” As we interpret this argument, the University is contending that if we remove the evidence discussed above, the remaining evidence is insufficient to support the verdict. Since we rule today that the district court made no prejudicial error in admitting the evidence at issue here, we need not address this argument.

Moreover, we need not consider the issue of the sufficiency of the evidence generally, for the University has not properly raised this issue. See Fed.R.App.P. 28(a) (brief must contain statement of issues presented for review and argument with respect to such issues); Ortega Cabrera v. Municipality of Bayamon, 562 F.2d 91, 102 n. 10 (1st Cir.1977) (issue not argued on appeal is treated as waived).

Even if the University's statement that the properly admitted evidence was insufficient could be treated as raising the issue of the sufficiency of the evidence generally, the University has nonetheless abandoned this issue by failing to argue the point in its briefs. See, e.g., Leer v. Murphy, 844 F.2d 628, 634 (9th Cir.1988) (“Issues raised in a brief which are not supported by argument are deemed abandoned.”); Hershinow v. Bonamarte, 735 F.2d 264, 266 (7th Cir.1984) (court will not consider issue presented in “perfunctory and underdeveloped a manner in [appellant's] brief”). IV. Jury Instructions A.

Causation The University’s next argument is that the district court, in its jury charge, improperly defined the required connection between an employer’s discriminatory motive and the action taken against its employee. The relevant statutory language provides that it is unlawful for an employer to take an adverse employment action “because of” an individual’s sex. 42 U.S.C. § 2000e-2; Mass.Gen.L. ch. 151B, § 4.

In a “pretext” case, such as here, a plaintiff who has shown that her sex was a “but for” cause of an adverse employment action has satisfied the statutory requirement of showing that the decision was “because of” her sex. Price Waterhouse v. Hopkins, — U.S. —, 109 S.Ct. 1775, 1785 n. 6, 104 L.Ed.2d 268 (1989). See also Fields v. Clark University, 817 F.2d 931, 935 (1st Cir.1987) (mixed motive case) (citing McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 282 n. 10, 96 S.Ct. 2574, 2580 n. 10, 49 L.Ed.2d 493 (1976)).

The district court’s jury instruction on causation included the following: Now, when I say in these questions [the special interrogatories]: Do you find that the Trustees refused to grant tenure because of sex or because of strike participation, or because o/some combination of the above, I mean did that factor that I referred to affect the result? Would the result have been different if there had been no sex discrimination or no retaliation or no combination of the above procedure?

That is to say, did it bring about a difference in the resulting decision? (Emphasis added.) This instruction properly informed the jury that the plaintiff must show that but for the impermissible motive, the University would have granted tenure. See, e.g., Geller v. Markham, 635 F.2d 1027, 1035 (2d Cir.1980) (age discrimination) (“If age discrimination was a ‘factor ... [which] made a difference,’ then the employee’s fortunes would have been ‘different’ without the discriminatory action and ... discrimination was therefore a ‘but for’ cause of the result that did take place.”).

The University has no quarrel with the above-quoted portion of the court’s instruction. Instead, they direct our attention to a later portion of the instruction, in which the court said: Now, the law gives a great deal of discretion to the people in charge of a university. That is part of academic freedom also, that ... we do not interfere in the freedom of the university as an institution, and that means the universities have the right to exercise independent judgment in choosing faculty and its decision must be respected unless tainted by one or more or both of the illegal reasons asserted by the plaintiff....

The university has the right to be wrong except in those two respects. They can make any kind of mistake except a decision that is tainted by sex discrimination or retaliation for strike activity, and your disagreement in general terms is not a basis for a finding for the plaintiff unless you find that the decision was effectively tainted by those two illegal considerations. (Emphasis added.) The University asserts that the court’s use of the word “taint” renders this portion of the instruction erroneous and prejudicial.

The University claims that rather than describing a “but for” standard of causation, the district court’s use of “taint” three times suggested to the jury that it could find for Brown if the University’s tenure decision was “affected slightly” with sex discrimination. “Our principal focus in reviewing jury instructions is to determine whether they tended to confuse or mislead the jury on the controlling issues.” Service Merchandise Company v. Boyd Corporation, 722 F.2d 945, 950 (1st Cir.1983) (citing Green v. Edmands Company, 639 F.2d 286, 289 (5th Cir.1981); 9 C. Wright & A.

Miller, Federal Practice and Procedure § 2558 at 668 (1971)). “On appeal, the charge must be examined as a whole; portions of it are not to be treated in isolation.” Id. We agree with the University that a “tainted” decision is not necessarily one that would have been different “but for” the taint. We do not think that in the context of the jury instruction as a whole, however, the district court’s “taint” remarks confused the jury.

First, the court correctly instructed the jury that the words “because of” in the special interrogatories meant that the impermissible factors must have brought about “a difference in the resulting decision.” Then, the court reiterated that “the plaintiff’s burden here is that she has to prove — has to persuade you that it is more likely true than not true that she was denied tenure because of her sex or because of her strike activity or because of some combination of the two.” (Emphasis added).

The three “taint” remarks were contained in two paragraphs immediately following the above, which discussed not the meaning of “because of,” but described the university’s prerogative to make bad, but not illegal, decisions. Later in the instruction, in describing the law about “pretext,” the court also stated three times that the jury’s function was to determine whether the University’s reason was so unworthy of belief that it was probable that one or more of the illegal reasons were the “true reasons” or “real reasons” for denying Brown tenure.

The concept of a “true” or “real” reason suggests “but for” causation. The jury could not have decided that discrimination was the “true” reason for the University’s decision without concluding that but for discriminatory animus the University would have made a different decision regarding tenure for Professor Brown. The “taint” remarks were thus sandwiched between several statements which accurately defined the meaning of the words “because of” on the special interrogatory forms and several statements that sex must be the “true” or “real” reason for discrimination.

In that context, we do not see a likelihood that the three references to “taint” confused or misled the jury with respect to the applicable causation standard. B. Jury’s Role The University also complains that the district court’s instructions encouraged the jurors to substitute their own judgment about the merit of Brown’s tenure candidacy, in contravention of Kumar, instead of merely deciding whether the University im-permissibly discriminated against Brown.

The University complains both that the jury charge implied that the jury was to determine whether Brown deserved tenure, and that the court refused to give a requested instruction which would have made clear for the jury its role in reviewing the evidence. We see no merit to either of these arguments. First, the University complains about a portion of the jury instruction which included the following: Whether the plaintiff deserves tenure or not is not the test here, either. I would suppose that deserving people are sometimes awarded tenure and sometimes not.

Certainly, before you get — that is not the full test; that is certainly one thing you have to consider. Obviously, if she didn’t deserve tenure on any kind of objective basis, the university was quite right in turning her down. If you find that she did deserve tenure, she was qualified on an equal basis, then you have the question of whether she was turned down for one or two of these illegal reasons that I have mentioned. That is the key to the case. (Emphasis added.) We agree that the court would have erred had it told the jury that it should find for Brown if it found that she deserved tenure.

But this instruction did no such thing. On the contrary, it specifically states that “whether the plaintiff deserves tenure or not is not the test.” The emphasized portion reinforces this by informing the jury that it is not enough to find that she deserved tenure, but rather the jury must find that she was denied tenure because of her sex and not simply because the University made a mistake. We think this instruction correctly stated the law. The University also complains that the court erred by refusing to give a requested instruction.

The omitted instruction was: In determining whether the reasons for the tenure decision are obviously weak or implausible, you should not attempt to determine whether the opinions of scholars are correct or incorrect. A university has the discretion to evaluate and weigh the opinions of scholars as it sees fit. As long as Boston University’s evaluation of a candidate’s scholarship is supported by some of the scholarly opinion submitted to it, the University's evaluation of the candidate’s scholarship will not support a claim of discrimination.

We think the court could properly determine that the requested instruction, particularly the final sentence, went too far. It would virtually insulate the University from review of any tenure decision, including those based on impermissible discrimination.

The district court gave several instructions, both during the trial and in the charge, that sufficiently advised the jury that it was not to substitute its own judgment on the merits of Brown’s tenure candidacy for that of the University. “As long as the judge’s instruction properly apprises the jury of the applicable law, failure to give the exact instruction requested does not prejudice the objecting party.” McKinnon v. Skil Corp., 638 F.2d 270, 274 (1st Cir.1981) (quoted in Service Merchandise Company, Inc., 722 F.2d at 950). This is, of course, especially so when the requested instruction is itself incorrect.

V. The Contract Claim The University next argues that the district court erred in denying the University’s motion to dismiss Brown’s contract claim for lack of subject matter jurisdiction and in ruling that the contract gave Brown a judicially enforceable right to a discrimination-free tenure decision. A. Subject Matter Jurisdiction The University claims the district court lacked subject matter jurisdiction over Brown’s claim that her tenure denial violated the Agreement.

This result follows the University argues, from a 1986 National Labor Relations Board (“Board”) decision that the University need not bargain with the

Chapter as its faculty members were “supervisors” rather than employees. ' This ruling, the University maintains, deprived the federal courts of subject matter jurisdiction under

Section 301(

a) of the Labor Management Relations Act (“Act”), because the Agreement could no longer be regarded as is one between an employer and a labor organization representing employees. This court recently has described the labor dispute at Boston University as follows. On October 18, 1974, the Union filed a petition for representation with the Board, seeking certification as the collective bargaining agent for a unit composed of all regular full-time faculty members at the University except for those in the Schools of Law, Dentistry and Medicine.

The University objected to the appropriateness of the unit, alleging that the full-time faculty were excluded from coverage of the Act by virtue of either their supervisory or managerial status. Notwithstanding said objections, the Board ordered and held an election in which a majority of those employees presumably eligible voted in favor of being represented by the Union. ... [T]he Union was certified by the Board as the bargaining representative of the unit sought. The Union’s bargaining request was rejected by the University, leading to the filing of [unfair labor practice charges].

The [Board] ... ordered [the University] to bargain with the Union.... [T]his court ... affirmed the Board. Boston University Chapter, American Association of University Professors v. N.L.R.B., 835 F.2d 399, 400 (1st Cir.1987) (footnotes omitted). The University faculty thereafter went out on strike, but the strike was settled on April 13, 1979, when the University and the

Chapter entered into the Agreement, which expressly was made “subject to the final disposition” of the case then pending in the courts. On July 11, 1978, the University petitioned the Supreme Court for a writ of certiorari. On February 20, 1980, while [the] petition was still pending, the Supreme Court decided N.L.R.B. v. Yeshiva University, 444 U.S. 672 [100 S.Ct. 856, 63 L.Ed.2d 115] (1980), ... which in substance holds that under given factual circumstances university faculty members shall be considered managerial employees excluded from coverage by the Act.

On March 3, 1980 the University’s petition was granted and the judgment of this court recalled and remanded for further consideration in light of the ruling in Yeshiva. Trustees of Boston University v. N.L.R.B., 445 U.S. 912 [100 S.Ct. 1271, 63 L.Ed.2d 597] (1980). Id. On April 17, 1981, following the procedure set out in the Agreement, the University informed Professor Brown that it was denying her tenure. Brown then filed this action in the Massachusetts Superior Court, alleging a breach of the Agreement. The University removed the action to federal district court, pursuant to

Section 301(

a) of the Act, 29 U.S.C. § 185(a). Brown subsequently amended her complaint to in-elude claims under Title VII and

Chapter 151B. On September 30, 1986, the Board ruled on remand from the Supreme Court that full-time faculty at Boston University are managers/supervisors, not employees subject to the Act, and dismissed the charge against the University. Trustees of Boston University, 281 N.L.R.B. No. 115, 123 L.R.R.M. 1144 (1986). Almost a full year later, the jury trial in Brown’s case took place. The jury returned a verdict for Brown on her contract claim on July 28, 1987. On September 22, 1987, before the district court had ruled on the Title VII and

Chapter 151B claims, the University filed with the district court a motion to dismiss the contract claim for lack of subject matter jurisdiction. The University argued that since it was now evident that the Agreement was not a “contract between an employer and labor union representing employees,”

Section 301(

a) no longer provided the district court with subject matter jurisdiction over Brown’s contract claim. Moreover, the University argued, the district court was forbidden to enforce the contract, pursuant to

Section 14(

a) of the Act, which provides that “no employer subject to this Act shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.” 29 U.S.C. § 164(a) (1982). On September 23, 1987, the district court denied the University’s motion, ruling that since there was federal subject matter jurisdiction over Brown’s Title VII claim, the court would exercise pendent jurisdiction over the contract claim, treating it as a Massachusetts state law claim.

Soon thereafter, a panel of this court affirmed the Board’s ruling that Boston University was not required to bargain with the Chapter. See Boston University Chapter, American Association of University Professors v. N.L.R.B., 835 F.2d 399 (1st Cir.1987). The time for the

Chapter to petition the Supreme Court for a writ of certiorari expired in April, 1988. In the present appeal, the University argues that the district court erred in exercising pendent jurisdiction over Brown's contract claim. We disagree. The district court plainly had federal question jurisdiction over Brown’s Title VII claim. See 28 U.S.C. § 1331 (1982).

A district court may exercise pendent jurisdiction over a state claim whenever it is joined with a federal claim which “derive[s] from a common nucleus of operative fact” and where the plaintiff “would ordinarily be expected to try [both the federal and state claims] in one judicial proceeding....” United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). In this case, the state claim alleging violation of the anti-discrimination clause of the contract exactly paralleled the federal Title VII claim.

It lay within the district court’s discretion, therefore, to exercise pendent jurisdiction over Brown’s contract claim. While apparently not contesting the preceding analysis, the University argues that the district court erred in enforcing the Agreement under state law. The University contends that

Section 14(

a) of the Act, by decreeing that no employer “shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law” (emphasis added), bars enforcement of the Agreement in this court under either state or federal law, because it now has been determined that the

Chapter is a “supervisors’ union” rather than an “employees’ union.” Therefore, the argument goes, enforcement of the Agreement would compel the University (the employer) to deem the faculty (supervisors) as employees, in contravention of

Section 14(a). There may be force to this argument (although we do not decide), but the University has waived the argument by raising too late. The issue is not jurisdictional; rather its foundations rest on the contention that Brown failed to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6).

Section 14(

a) does not purport to divest federal and state courts of jurisdiction over claims against supervisors. Rather it merely forbids courts to order employers to deem as employees those who actually are supervisors. The University’s argument is, therefore, that Brown brought her claim under an unenforceable agreement. [I]t is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction.

Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946) (quoted in Brule v. Southworth, 611 F.2d 406, 409 (1st Cir.1979)). Unlike a lack of subject matter jurisdiction — a defense that may be considered at any point in a judicial proceeding, see Fed.

R.Civ.P. 12(h)(3), — the defense of failure to state a claim is normally waived if not raised “at the trial on the merits” or before. Fed.R.Civ.P. 12(h)(2) (“A defense of failure to state a claim upon which relief can be granted ... may be made in any pleading ..., or by motion for judgment on the pleadings, or at the trial on the merits.”). Because the University did not raise the question whether

Section 14(

a) bars judicial enforcement of the Agreement until after the jury reached its verdict, it waived its right to assert this defense. See Black, Sivalls & Bryson, Inc. v. Shondell, 174 F.2d 587, 590-91 (8th Cir.1949) (defendant who raises defense of failure to state a claim for first time in motion for judgment notwithstanding the verdict has waived that defense); Brule v. Southworth, 611 F.2d 406, 409 (1st Cir.1979) (12(b)(6) defense cannot be raised for first time on appeal). See also Snead v.

Department of Social Services of City of New York, 409 F.Supp. 995, 1000 (S.D.N.Y.1975) (“the clear thrust of [Rule 12(h)(2) ] is that a failure to state a claim may be raised at any time before a disposition on the merits but not after”), vacated on other grounds, 425 U.S. 457, 96 S.Ct. 1630, 48 L.Ed.2d 88 (1976). Cf. Sulmeyer v. Coca Cola Co., 515 F.2d 835, 846 (5th Cir.1975) (a party who fails to raise issues “during the trial [is] not entitled to raise those issues in its motion for judgment n.o.v.”).

The University argues that even if its argument is not jurisdictional, it preserved this defense by specifically raising the defense of failure to state a claim upon which relief can be granted in its answer to Brown’s complaint. We disagree. A general defense that the complaint fails to state a claim ordinarily will not preserve unarticulated arguments in support of that defense. See Smeed v.

Carpenter, 274 F.2d 414, 418 (9th Cir.1960) (“The failure of appellee to bring to the trial court’s attention the particulars upon which it relies in its assertion that the complaint failed to state a claim upon which relief could be granted constitutes a waiver of its right to rely on that defense.”); C. Albert Sauter Co., Inc. v. Richard S. Sauter Co., Inc., 368 F.Supp. 501, 510-11 (E.D.Pa.1973) (same). Cf. Libertyville Datsun Sales v.

Nissan Motor Corp., 776 F.2d 735, 737 (7th Cir.1985) (where party raises specific argument for first time on appeal, it is waived even though “general issue” addressed by the argument was before the district court). Although in unusual circumstances, we may reach issues not timely raised, there are no such circumstances here. See In re Grand Jury Proceedings, 875 F.2d 927, 933 (1st Cir.1989) (absent plain error, failure to raise objection in district court deprives appellant of right to raise matter on appeal) (citing United States v.

Griffin, 818 F.2d 97, 99-100 (1st Cir.) cert. denied, 484 U.S. 844, 108 S.Ct. 137, 98 L.Ed.2d 94 (1987); United States v. Krynicki, 689 F.2d 289, 291 (1st Cir.1982)). See also Weaver v. Bowers, 657 F.2d 1356, 1361-62 (3d Cir.1981) (considered Rule 12(b)(6) motion, even though not raised until after trial, in the interests of “evenhandedness in the administration of justice”), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982). We do not see plain error in the district court’s exercise of pendent jurisdiction over Brown’s contract claim.

Nor are there any special circumstances here warranting deviation from our ordinary rule that, on appeal, we do not consider issues waived in the court below. On the contrary, it would be unjust to allow the University to prevail on the grounds asserted here. The Board’s original order was vacated almost seven years before the trial on the merits in this case, and the Board definitively ruled that the University was not required to bargain with the union almost a full year before the trial.

We can conceive of no legitimate reason for the University to have waited until the twelfth hour, after the jury reached a verdict against defendant on the claim in question, to move to dismiss on these particular grounds. The district court expressed outrage at the University’s conduct, characterizing as “reprehensible” the actions of the University in waiting until after a long and expensive trial to raise a “jurisdictional” issue, when the University had been aware of the Board’s ruling for almost a year before trial. Like the district court, we do not condone delaying tactics of this sort.

If the University preferred to go forward before a jury until after the jury decided against it, there is no injustice to making it abide by its choice. See Brule, 611 F.2d at 409 (“Defendants now wish to breathe new life into their waived defense of failure to state a claim by presenting it as a challenge to the court’s subject matter jurisdiction — the latter being an issue which, of course, neither the parties nor the court could waive. We see no merit in this approach.”). B. Enforceability of the Agreement The University also argues that the Agreement itself precludes judicial review of a tenure decision.

The district court ruled that

Article XI of the Agreement, the “No Discrimination” provision, afforded Brown a judicially enforceable right to a discrimination-free tenure decision. The district court reasoned that because the substance of a tenure decision is non-grievable, it would be superfluous to have included the non-discrimination clause if the parties had not intended to provide employees with a separate right to sue under the Agreement. The University’s argument on this appeal is grounded in

Article V.C.8 of the Agreement, which provides that “The decision of the Trustees shall be final and not subject to the grievance procedure.” The University argues that limitations on the arbitrability of a grievance, such as this, limit an employer’s substantive obligation, and correspondingly limit the jurisdiction of a court over an action for breach of contract. The University finds further support for its position in

Article II of the Agreement, which provides that the Trustees have full power and authority ... to elect ... professors ... and to determine the duties, salaries, emoluments, responsibilities and tenures of their respective offices.... Except as delegated by the provisions of the Agreement for its terms, all rights, powers, privileges, duties, responsibilities, and authority are retained by the Trustees. The University contends that these provisions indicate that the Trustees were to retain final authority in tenure decisions, and that these decisions were not to be subject to judicial review under the contract. We express no view on these assertions as a matter of contract

interpretation, because the University has waived this issue by raising it too late. Contrary to the University’s assertion in its appellate brief, it did not raise this issue in its pre-trial motion for partial

summary judgment. Although the University did argue on

summary judgment that the contract did not create a judicially-enforceable right to a discrimination-free tenure decision, it did so on grounds significantly different from those advanced before this court on appeal. In the motion for partial

summary judgment, the University argued that Brown was not entitled to bring an action in court because she had failed to follow the grievance procedures delineated in the Agreement. The University argued forcefully that Brown’s claim was not removed from the grievance procedure provided in the Agreement. The University also argued that

Article XI, the “No Discrimination” provision, did not create a right to discrimination-free employment decisions that could be enforced through a breach of contract action, but rather embodied the parties’ intention that discrimination claims would be channeled through the administrative procedures created by federal and state anti-discrimination statutes. The University’s present position, that the Agreement removes tenure decisions from the grievance mechanism and, a forti-ori, precludes judicial review of those decisions, was first framed in the University’s motion for judgment notwithstanding the verdict.

As this argument is most aptly characterized as a motion to dismiss for failure to state a claim, the University waived its right to raise the issue by bringing it after “the trial on the merits.” Shondell, 174 F.2d at 590-91; Fed.R.Civ.P. 12(h)(2). See

Section V.A, supra. VI. The Order to Grant Tenure We turn now to the matter of the district court’s order that the University reinstate Brown with tenure. Courts have quite rarely awarded tenure as a remedy for unlawful discrimination, and those that have, have done so under circumstances distinguishable from those here. The University argues that tenure is a significantly more intrusive remedy than remedies ordinarily awarded in Title VII cases, such as reinstatement or seniority, because a judicial tenure award mandates a lifetime relationship between the University and the professor.

The University further contends that due to the intrusiveness of tenure awards and the First Amendment interest in academic freedom, a court should not award tenure unless there is no dispute as to a professor’s qualifications. Thus, the University concludes, the district court should not have awarded tenure to Brown, because there existed a dispute as to her qualifications. We agree that courts should be “extremely wary of intruding into the world of university tenure decisions,” Kumar, 774 F.2d at 12, (Campbell, C.J., concurring).

However, once a university has been found to have impermissibly discriminated in making a tenure decision, as here, the University’s prerogative to make tenure decisions must be subordinated to the goals embodied in Title VII. The Supreme Court has ruled that the remedial provision of Title VII, 42 U.S.C. § 2000e-5 (1982), requires courts to fashion the most complete relief possible for victims of discriminatory employment decisions. Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280 (1975).

Once Title VII liability has been imposed, a court should deny “make whole” relief “only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.” Id. We see no reason to deny Brown such “make whole” relief here. We disagree with the University’s characterization of the tenure award as an infringement on its First Amendment right to determine for itself who may teach.

In often-quoted language, Justice Frankfurter defined academic freedom as “ ‘an atmosphere in which there prevail the four essential freedoms of a university — to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.’ ” Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S.Ct. 1203, 1218, 1 L.Ed.2d 1311 (1957) (Frankfurter, J., concurring in result) (emphasis added) (quoting from a statement of a conference of senior scholars from the University of Cape Town and the University of the Witwatersrand, including A. v. d. S.

Centlivres and Richard Feetham, as Chancellors of the respective universities). Academic freedom does not include the freedom to discriminate against tenure candidates on the basis of sex or other impermissible grounds. See Powell v. Syracuse University, 580 F.2d 1150, 1154 (2d Cir.1978). Our decisions in this area have formulated a university’s prerogatives similarly.

While we have been and remain hesitant to interfere with universities’ independent judgment in choosing their faculty, we have said that we will respect universities’ judgment only “so long as they do not discriminate.” Kumar, 774 F.2d at 12, (Campbell, C.J., concurring). The University also argues that the special needs of academic institutions counsel imposition of less restrictive alternative remedies. However, the University suggests none. Some amici suggest that Brown be reinstated for a three year probationary period, or be subjected to a non-discriminatory tenure decision.

Aside from the impracticality of the latter, well over eight years after the original decision, these suggestions fall far short of remedies which will make Brown whole. According to the jury’s verdict, she was offered the three year extension because of discrimination. The jury found that, “

[…]