# Dube v. State University of New York

> Court of Appeals for the Second Circuit · April 12, 1990 · 900 F.2d 587

URL: https://www.frixlaw.com/law-library/cases/8978812

## Case

- **Full name:** Professor Ernest F. DUBE, Professor William McAdoo, Professor Amiri Baraka, Professor Carolle Charles, Professor Leslie Owens, Haitian Student Organization, Latin American Student Organization International Student Organization, Caribbean Student Organization, and Third World Resources, Professor Ernest F. Dube v. The STATE UNIVERSITY OF NEW YORK, Clifton R. Wharton, Jr., Ex-Chancellor of the State University of New York, individually and in his official capacity Jerome Komisar, Acting Chancellor of the State University of New York, individually and in his official capacity John Marburger, President of the State University of New York at Stony Brook, individually and in his official capacity Homer A. Neal, Provost of the State University of New York at Stony Brook, individually and in his official capacity Robert Neville, Dean of Humanities and Fine Arts at the State University of New York at Stony Brook, individually and in his official capacity
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** April 12, 1990
- **Citations:** 900 F.2d 587; 1990 WL 44182
- **Precedential status:** Published
- **Opinion:** Concurrence by Mahoney
- **Judges:** Mahoney, Meskill, Miner
- **Cited by:** 65 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8978812

## Opinion text

MAHONEY, Circuit Judge,
generally concurring:
It is a little difficult to know how to label this separate opinion. Although I am in general agreement with Judge Meskill’s thoughtful opinion for the court, it is precisely aspects of the “result” that cause me some difficulty. It would thus be especially inappropriate to say that I concur in the “result;” I therefore “generally” concur.
Specifically, our cases seem to call for dismissal of an appeal for lack of appellate jurisdiction, rather than affirmance of a denial of summary judgment, where a de *601 fendant invokes qualified immunity but is required to go to trial because there exist material issues of fact with respect to that defense, see, e.g., United States v. Yonkers Branch-NAACP, 893 F.2d 498 , 502-04 (2d Cir.1990); Francis v. Coughlin, 891 F.2d 43 , 44 n. 1 (2d Cir.1989), as we determine to be the case here with respect to the defense of qualified immunity to Dube’s first amendment claim.
More fundamentally, the portion of Judge Meskill’s opinion which addresses qualified immunity concludes, inexplicably in my view, that “the defendants are not qualifiedly immune from section 1983 liability on Dube’s First Amendment claims,” and that as a result of this ruling, “the defense of qualified immunity is removed from the case.” Concededly, any defense of qualified immunity at trial would substantially, if not totally, overlap with defendants’ case on the merits. All that has happened, however, is that defendants’ motion for summary judgment, asserting the defense of qualified immunity to Dube’s first amendment claim, has been denied, and we have ratified that denial. The denial of a motion for summary judgment leaves the question at issue in the case, and does not, without more, decide that question in favor of the movant’s adversary.
With these qualifications, I join in Judge Meskill’s opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8978812. Public record. Not legal advice.