# Bennun v. Rutgers State University

> Court of Appeals for the Third Circuit · August 21, 1991 · 941 F.2d 154

URL: https://www.frixlaw.com/law-library/cases/8992470

## Case

- **Full name:** Doctor Alfred BENNUN v. RUTGERS STATE UNIVERSITY Board of Governors of Rutgers State University and Doctor Edward J. Bloustein, President (Civil Rights No. 84-4655) Dr. Alfred BENNUN v. RUTGERS STATE UNIVERSITY Board of Governors of Rutgers State University and Dr. Edward J. Bloustein, President, Rutgers State University (Civil Rights No. 85-3491) Dr. Alfred BENNUN v. RUTGERS STATE UNIVERSITY (Civil Rights No. 86-621). Rutgers, the State University Board of Governors of Rutgers, the State University and Dr. Edward J. Bloustein
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** August 21, 1991
- **Citations:** 941 F.2d 154; 1991 WL 134841
- **Precedential status:** Published
- **Opinion:** Dissent by Sloviter
- **Judges:** Becker, Cowen, Greenberg, Hutchinson, Mansmann, Nygaard, Roth, Scirica, Sloviter, Smith, Stapleton
- **Cited by:** 35 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8992470

## How later opinions describe it (automated extraction)

- holding that, even if one employee was “teaching-oriented” professor and plaintiff was “research-oriented professor, a comparison between the two can be made to determine if [the college’s] five objective criteria for advancement to full professor were evenly applied” — even i…

## Opinion text

SLOVITER, Chief Judge,
dissenting from the denial of a petition for rehearing, with whom Judge Roth joins.
I dissent from the denial of rehearing in banc in this case because I believe that the majority’s decision may be read to thrust the federal courts of this circuit into the subjective area of academic tenure and pro *181 motion decisions to an unwarranted and unprecedented degree.
I do of course accept the proposition that the tenure and promotion decisions of colleges and universities are subject to Title VII. See Kunda v. Muhlenberg College, 621 F.2d 532, 545 (3rd Cir.1980). I also accept the proposition that when an academic institution violates Title VII, the court is obligated to fashion an appropriate remedy. See id. at 549 . On the other hand, we cautioned in Kunda that,
it is clear that courts must be vigilant not to intrude into that determination, and should not substitute their judgment for that of the college with respect to the qualifications of faculty members for promotion and tenure. Determinations about such matters as teaching ability, research scholarship, and professional stature are subjective, and unless they can be shown to have been used as the mechanism to obscure discrimination, they must be left for evaluation by the professionals, particularly since they often involve inquiry into aspects of arcane scholarship beyond the competence of individual judges.
Id. at 548 . See also Gurmankin v. Costanzo, 626 F.2d 1115, 1125 (3d Cir.1980), cert. denied, 450 U.S. 923 , 101 S.Ct. 1375 , 67 L.Ed.2d 352 (1981).
In the present case, it would appear that this court may have abandoned the doctrine of restraint set forth in Kunda . In Kun-da, although we affirmed a judicially imposed requirement of tenure, the plaintiffs qualifications were not in dispute, and the court accordingly did not review the college’s assessment of her qualifications. In this case, Professor Bennun’s qualifications to be full professor were in dispute among the faculty and administration at Rutgers. Thus, from the limited record available to me on a petition for rehearing, it appears that the district court reassessed every decision made by Rutgers regarding Professor Bennun’s qualifications and concluded that the court’s assessment of the factors under review was superior to the university’s. If the court did so in lieu of deferring to the university’s ultimate resolution of that dispute, the district court would have gone far beyond the boundaries of review set out in Kunda .
I do not believe that it is proper or desirable for the courts of this circuit to become involved in substantive tenure and promotion decisions in the academic setting unless the evidence of discriminatory action is unmistakable. Because I believe that this opinion appears, at least on its face, to be in conflict with our prior restraint, I would grant the petition for rehearing in banc.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8992470. Public record. Not legal advice.