Petition — Jones v. Kneller
Supreme Court brief1980
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IN THE
Supreme Court of the United States
October Term, 1980,
JERE JONES, FRED KORN and DAVID MASSIE,
Petitioners,
v8.
JOHN W. KNELLER, individually and as President of Brooklyn
College, SHERMAN VAN SOLKEMA, individually and as former
Vice-President and Provost of Brooklyn College, ETHYLE R.
WOLFE, individually and as Dean of the School of Humanities,
Brooklyn College, SALVATORE CANNAVO, PAUL EDWARDS,
GERTRUDE EZORSKY, EDWARD KENT, ARNOLD KOSLOW,
ROBERT SCHWARTZ, PAUL TAYLOR, individually and as
present and former voting members of the Appointments Committee
of the Philosophy Department at Brooklyn College, DONALD R.
REICH, individually and as Vice-President and Provost of Brooklyn
College, and ROBERT GROSSMAN, individually and as Grievance
Officer and Special Assistant to the President of Brooklyn College
for Legal Affairs,
Respondents.
JERE JONES, FRED KORN and DAVID MASSIE,
Petitioners,
v8.
THE BOARD OF HIGHER EDUCATION OF THE CITY OF NEW
YORK, HAROLD JACOBS, as Chairman of the Board of Higher
Education, and ROBERT KIBBEE, as Chancellor of the City
University of New York,
Respondents.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Second Circuit.
:
MORTON ALPERT
Attorney for Petitioners
217 Broadway
New York, N. Y. 10007
(212) 349-2000
ALPERT & O’ ROURKE
Of Counsel
August 11, 1980
Supreme Court, U. $,
FILED
AEI8-1980
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980.
«&
JERE JONES, FRED KORN and DAVID MASSIE,
Petitioners,
vs.
JOHN W. KNELLER, individually and as President of
Brooklyn College, SHERMAN VAN SOLKEMA, indi-
vidually and as former Vice-President and Provost of
Brooklyn College, ETHYLE R. WOLFE, individually and
as Dean of the School of Humanities, Brooklyn Col-
lege, SALVATORE CANNAVO, PAUL EDWARDS, GER-
TRUDE EZORSKY, EDWARD KENT, ARNOLD KOSLOW,
ROBERT SCHWARTZ, PAUL TAYLOR, individually and
as present and former voting members of the Appoint-
ments Committee of the Philosophy Department at
Brooklyn College, DONALD R. REICH, individually and
as Vice-President and Provost of Brooklyn College, and
ROBERT GROSSMAN, individually and as Grievance Of-
ficer and Special Assistant to the President of Brooklyn
College for Legal Affairs,
Respondents.
JERE JONES, FRED KORN and DAVID MASSIE,
Petitioners,
vs.
THE BOARD OF HIGHER EDUCATION OF THE CITY OF
NEW YORK, HAROLD JACOBS, as Chairman of the
Board of Higher Education, and ROBERT KIBBEE, as
Chancellor of the City University of New York,
Respondents.
Petition for a Writ of Certiorari To The United States
Court of Appeals For The Second Circuit.
Questions Presented For Review.
Where the Court of Appeals for the Second Circuit af-
firmed the decision of the District Court granting respond-
ents’ motion under Rule 12 (b) (6) F. R. Civ. P. to dismiss
the amended complaint for failure to state a claim upon
which relief can be granted:
1. Does the First Amendment and 42 U.S.C. §1983 pro-
tect untenured teachers from denial of re-employment by a
public university for views expressed in a departmental
debate over the best way to teach educationally disparate
students in an open-admissions program?
iii.
2. Does a contractual right to pre-termination of
employment review procedures implicate the Fourteenth
Amendment for untenured teachers who claim that they
were denied re-employment because the decision makers
conducting the procedures were infected by bias in viola-
tion of federal due process?
3. If a valid claim is stated against respondents; should
this consolidated action also be remanded for trial against
the governmental entity, Board of Higher Education of
the City of New York, to permit evidentiary development
of petitioners’ allegations that it was implicated in the
deprivation of their First and Fourteenth Amendment
rights?
iv.
Table of Contents.
Page
Questions Presented For Review................. ii
EE ee erp eee eee ee Te er ree ree l
RE Pe ey ee rr eer re |
EE fps hohe 004 nbn mabe ebes * REESE |
Constitutional and Statutory Provisions.......... |
IE Sha nek s Cakes (000d es een ked heeds eaves 2
Reasons for Granting the Writ................... 5
I Sa ee eee ne Tee ee Ter ere 8
Index to Appendix.
ER 50> oki Fe Wb oak oC RAW Ae ee la
en hi gk seth hs bee R ReneS ie es 3a
as arent Be bia 6 ek Oe ew ah eae we 20a
oe aN aed cade bas wane we «Rae a
V.
Table of Authorities.
CASES.
Page
Board of Regents v. Roth, 408 U.S. 564 (1972)..... 7
Eichman v. Ind. State Univ. Bd. of Trustees, 597 F.
re oe ee Brrr nr rere 6
Gibson v. Berryhill, 411 U. S. 564 (1973) .......... 7
Givhan v. Western Line Consol. School District, 439
a Ls owing ae we ke ee ae an 5,6
Hortonville Joint School District No. 1 v. Horton-
ville Education Association, 426 U. S. 482
ee, COR GE obs oak aaah om tock 7
In re Murchison, 349 U. S. 133 (1955). ............ 7
Mt. Healthy City Board of Education v. Dovle, 429
— & RES, Se er a 5,6
Perry v. Sindermann, 408 U. S. 274 (1977)......... 5,7
Pickering v. Board of Education, 391 U. S. 563
Ra a ueee cena de: Sib bne ae 5, 6,7
Scheuer v. Rhodes, 417 U. S. 232 (1974). .......... 6
STATUTES.
Civil Service Law §203, McKinney’s Consol. Laws
SED IE SRG IR Nl ie ae a 2
co ee ee 2,3
vi.
Ree Re oe
A A ee
a | ee
Se is UT ENS « Vodice Weews paeeeed be hele
OTHER AUTHORITIES.
U. S. Constitution:
Parties.
The names of the parties are as indicated in the caption
of the case in this Court.
Opinions Below.
The opinion of the Court of Appeals for the Second Cir-
cuit is unreported as yet and appears in Appendix A, infra.
The opinion of the United States District Court for the
Eastern District of New York is reported at 482 F. Supp.
204 (1979) and appears in Appendix B, infra.
Jurisdiction.
The judgment of the Court of Appeals was rendered
and entered on May 21, 1980 (Appendix A, p. 1a). This
petition for certiorari was filed within 90 days from that
date. The jurisdiction of this Court is invoked under 28 U.
S. C. 1254 (1).
Constitutional and Statutory Provisions.
UNITED STATES CONSTITUTION.
Amendment I:
‘*Congress shall make no law * * * abridging the
freedom of speech.’’
Amendment XIV:
‘*(NJor shall any State deprive any person of life,
liberty or property, without due process of law
*“* #9?
2
STATUTES AND RULES.
Title 42 U. S. C. §1983, 17 Stat. 13:
‘*Every person who, under color of any statute,
ordinance, regulation, custom, or usage of any
State or Territory, subjects or causes to be sub-
jected, any citizen of the United States or other per-
son within the jurisdiction thereof to the depriva-
tion of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or
other proper proceeding for redress.’’
Rule 12 (b) (6) F. R. Civ. P.:
‘** * * the following defenses may at the option
of the pleader be made by motion:
‘“* * * (6) failure to state a claim upon which
relief can be granted. * * *”’
Civil Service Law §203, McKinney’s Consol. Laws of
N.Y.:
‘*Public employees shall have the right to be
represented by employee organizations to negotiate
collectively with their public employers in the deter-
mination of their terms and conditions of employ-
ment, and the administration of grievances arising
thereunder.’’
Statement.
The jurisdiction of the United States District Court for
the Eastern District of New York was invoked under Title
28 U. S. C. §1343 to bring these actions under the First
3
and Fourteenth Amendments and Title 42 U. S. C. §§ 1983
and 1985 (3). After filing and service of a complaint'
against the individual respondents, a second complaint
was filed and served against the Board of Higher Educa-
tion of the City of New York and its officials which con-
tains substantially identical allegations to the earlier one.’
The actions were consolidated and dismissed by the
District Court pursuant to Rule 12 (b) (6) F. R. Civ. P.’
The Court of Appeals for the Second Circuit affirmed in a
memorandum decision (Appendix A).
Petitioners had been untenured teachers in the
Philosophy Department of Brooklyn College—part of the
City University of New York—which is a public institu-
tion. They had been so employed for several years when in
1975 they were denied re-employment upon the expiration
of their annual contracts. Respondents include several
senior members of the Philosophy Department and of-
ficers of the College of whom some were empowered by a
collective bargaining agreement (Appendix D) to evaluate
and recommend petitioners for reappointment (Appendix
D, pp. 55a-58a) or to conduct grievance procedures (Ap-
pendix D, pp. 58a-60a).
‘An amended complaint was subsequently allowed and is
reproduced in Appendix C, infra.
?To avoid unnecessary duplication, the second complaint is not
reproduced in the Appendix.
*The Court declined to treat the motion as one for summary judg-
ment although it referred in its opinion to a collective bargaining
agreement which though not annexed to the complaint had been sub-
mitted with petitioners’ brief.
4
The background to the lawsuit is found in the 1969 deci-
sion of the City University of New York to abandon its
former stringent admissions policy in favor of one of open
admissions. The resultant increase in class size and wide
disparity in educational background of the student body
convinced petitioners that the faculty had an obligation to
adapt its teaching methods to the needs of incoming
students. Consequently, although there was no college or
departmental policy requiring any particular method of in-
struction, petitioners utilized and were vocal in advocating
to their colleagues a method of instruction requiring the
teachers to direct each student in the preparation of a jour-
nal—written practice at dealing with philosophical prob-
lems. This was in contrast to the traditional lecture
method used by senior members of the department which,
though less demanding of a teacher’s time, did not, in peti-
tioners’ judgment, meet the problems of students with
limited academic experience and diverse ethnic back-
grounds.
Thus, a debate began within the Philosophy Depart-
ment between petitioners and the tenured senior faculty
represented by several respondents, spilling over to include
the Administration, over the fundamental social and
pedagogical question of how best to teach educationally
limited students in order to promote the success of an
open-admissions program.
The debate culminated in a series of retaliatory actions
by the senior faculty which were calculated to cause peti-
tioners to be denied re-employment. They acquired con-
trol of the departmental Appointments Committee and the
chairmanship, thereby isolating petitioners; they tampered
with petitioners’ files and official evaluation materials so
as to damage their candidacies for reappointment and
tenure (Appendix C, p. 42a, 410;.p. 49a, 452; p. 50a, 460);
5
they assigned persons known to be hostile to petitioners’
pedagogic views to observe and evaluate their teaching and
written work (Appendix C, p. 41a, 46; p. 42a, 48; p. 44a,
425; p. 45a, 931); they manipulated deadlines and
withheld access to materials so that petitioners were
hampered by insufficient preparation time for the evalua-
tion process leading to reappointment (Appendix C, p.
4la, (6; p. 42a, 49; p. 47a, 444); they corrupted contractu-
ally granted evaluation and grievance procedures which
they themselves conducted (Appendix C, p. 47a, 4445, 47;
p. 49a, 44 53, 55, 57; p. 50a, 460; Appendix D, pp.
55a-60a). Additional retaliatory acts are described in that
portion of the amended complaint headed ‘‘Overt Acts’’
(Appendix C, pp. 40a-50a).
Reasons for Granting the Writ.
1. By dismissing this action at the pleading stage, the
courts below fail to follow the admonition of the Supreme
Court that in cases involving claims by teachers of loss of
employment in retaliation for the exercise of their First
Amendment rights, summary disposition without a full
factual exploration of the issue is improper. Perry v.
Sindermann, 408 U. S. 274 (1977); Givhan v. Western
Line Consol. School District, 439 U. S. 410 (1979).
The need for trial is established not only by petitioners’
entitlement to prove that they were denied re-employment
in retaliation for the exercise of First Amendment rights,
but also because of the complicated balancing of interest
formulae enunciated by the Supreme Court in such cases
as Pickering v. Board of Education, 391 U. S. 563 (1968);
Mt. Healthy City Board of Education v. Doyle, 429 U.S.
274 (1977) and Givhan v. Western Line Consol. School
District, supra. From the face of the complaint, as in most
6
cases of this kind, the factual elements of the balancing
equation cannot be fully explored in advance of trial. The
issue is not whether petitioners will ultimately prevail, but
whether they are entitled to offer evidence to support their
claims. Scheuer v. Rhodes, 417 U. S. 232 (1974).
2. This case presents an important First Amendment
question of whether a departmental debate among college
teachers, which subsequently involved the college ad-
ministration, as to the best way to teach educationally
disparate students in an open-admissions program of a
publicly-supported university is constitutionally protected
expression. The courts below deprecate the controversy by
characterizing it as ‘‘bickering’’ and distinguish it from
the kind of private speech afforded protection in Givhan
v. Western Line Consol. School District, supra. Yet, the
Seventh Circuit in Eichman v. Ind. State Univ. Bd. of
Trustees, 597 F. 2d 1104 (7th Cir. 1979), applied the
Givhan rationale to an untenured teacher’s claim that he
was denied employment in retaliation for circulatang an in-
terdepartmental memorandum critical of the Universiiy’s
practices regarding class scheduling and curriculum in its
German Department.
In New York, where there is controversy over the va-
lidity of an open-admissions policy,‘ the issue of how best
to teach its students is certainly as important as the debate
in Pickering as to how much money should be spent on
athletics, or in Mt. Healthy as to whether a school’s dress
code may be described to a radio station. The District
Court’s conclusion, based on its reading of the complaint,
that the controversy was nothing more than an academic
dispute with professional colleagues, was an impermissible
basis for dismissal.
“See T. Gross, Academic Turmoil: The Reality and Promi
Open Education, Doubleday (1980). ‘* ities
7 j
3. This case presents an important Fourteenth Amend-
ment question as to whether a collective bargaining agree-
ment, sanctioned by state law,’ which provides required
steps for review, evaluation and grievances in contempla-
tion of reappointment of untenured teachers is a constitu-
tionally protected property interest entitling petitioners to
an unbiased consideration of their candidacies for reap-
pointment. The District Court concluded that a challenge
to the procedural fairness of review procedures actually
afforded petitioners would open to constitutional litiga-
tion a number of claims foreclosed by the Supreme Court
in Board of Regents v. Roth, 408 U. S. 564 (1972), and
Perry v. Sindermann, 408 U. S. 593 (1972).
However, this case differs from Roth and Perry, supra,
in that uere we have contractual provisions for evaluation
and grievance procedures that must precede the final deci-
sion whether to reappoint petitioners. It is claimed that the
very process by which the decision to refuse reappoint-
ment was reached was carried out in bad faith and was in-
tentionally corrupted at each level of consideration by
reason of the fact that those respondents who conducted
the procedures were animated by hostility and acting in a
retaliatory manner. Compare Hortonville Joint School
District No. 1 v. Hortonville Education Association, 426
U. S. 482 (1976). See Pickering v. Board of Education, 391
U. S. 563, 578, n. 2 (1968). It is well established that a hearing
by a biased decisionmaker violates due process. Jn re Mur-
chison, 349 U. S. 133 (1955); Gibson v. Berryhill, 411 U.
S. 564 (1973). Certainly, a factual hearing is required to
determine petitioners’ claim that the decision to terminate
their employment was so infected by bias as to nullify it as
a matter of federal due process.
*See Civil Service Law, §203, McKinney’s Consol. Laws of N. Y.
at page 2, supra.
Conclusion.
This Court should grant the petition for certiorari and
hear the issues raised in this important area of civil rights.
Respectfully submitted,
ALPERT & O’ROURKE,
Attorneys for Petitioners,
217 Broadway,
New York, N. Y. 10007
(212) 349-2000
la
APPENDIX A.
Decision.
UNITED STATES COURT OF APPEALS,
SECOND CIRCUIT.
At a Stated Term of the United States Court of
Appeals, in a~d for the Second Circuit, held
at the United States Court House, in the Ci-
ty of New York, on the twenty-first day of
May, One Thousand Nine Hundred and
Eighty.
Present:
Honorable J. Edward Lumbard,
Honorable Walter R. Mansfield,
Honorable William H. Mulligan,
Circuit Judges.
JERE JONES, FRED KORN and DAVID MASSIE,
Plaintiffs-Appellants,
against
JOHN W. KNELLER, individually and as President of
Brooklyn College, SHERMAN VAN SOLKEMA, indi-
vidually and as former Vice-President and Provost of
Brooklyn College, ETHYLE R. WOLFE, individually and
as Dean of the School of Humanities, Brooklyn Col-
lege, SALVATOR CANNAVO, PAUL EDWARDS, GER-
TRUDE EZORSKY, EDWARD KENT, ARNOLD KOSLOwW,
2a
ROBERT SCHWARTZ, PAUL TAYLOR, individually and
as present and former voting members of the Appoint-
ments Committee of the Philosophy Department at
Brooklyn College, DONALD R.REICH, individually and
as Vice-President and Provost of Brooklyn College and
ROBERT GROSSMAN, indiviiually and as Grievance Of-
ficer and Special Assistant to the President of Brooklyn
College for Legal Affairs,
Defendants-Appellees.
Dkt. No. 80-7069
Plaintiffs, former instructors in the Philosophy Depart-
ment of Brooklyn College, appeal from a judgment of the
United States District Court for the Eastern District of
New York ordered by Judge Edward R. Neaher in his deci-
sion dated December 18, 1979, dismissing their action
under the First and Fourteenth Amendments of the Con-
stitution and 42 U.S.C. §§ 1983, 1985(3), which sought a
declaration that they were unlawfully dismissed in retalia-
tion for exercise of their constitutional rights and in viola-
tion of their First and Fourteenth Amendment rights, and
other relief.
The judgment of the district court is affirmed, substan-
tially for the reasons set forth in Judge Neaher’s well-
reasoned and carefully considered opinion dated
December 18, 1979.
J. EDWARD LUMBARD, U.S.C.J.
WALTER R. MANSFIELD, U.S.C.J.
WILLIAM H. MULLIGAN, U:S.C.J.
3a
APPENDIX B.
Memorandum and Order.
UNITED STATES DISTRICT COURT,
EASTERN DISTRICT OF NEW YORK.
JERE JONES, FRED KORN and DAVID MASSIE,
Plaintiffs.
against
JOHN W. KNELLER, individually and as President of
Brooklyn College, et ai.,
Defendants.
75 C 1898
78 C 1780
Appearances:
Alpert, O’Rourke & Alpert, Attorneys for Plaintiffs By
Morton Alpert, Esq.
Allen G. Schwartz, Esq., Corporation Counsel, City of
New York, Attorney for Defendants By Ilene J. Brown,
Esq.
NEAHER, District Judge.
4a
Plaintiffs are former instructors in the Philosophy
Department of Brooklyn College. They have brought
these civil rights actions pursuant to 42 U.S.C. §§ 1983
‘and 1985(3) and the First and Fourteenth Amendments,
alleging that they were unlawfully dismissed because of
their exercise of constitutionally protected rights. Defen« -
ants are officials and instructors of Brooklyn College
(‘‘the college’), the City University of New York
(‘““CUNY’’), of which the college is a part, and the Board
of Higher Education of the City of New York (‘‘BHE’’).
Plaintiffs seek compensatory and punitive damages, as
well as declaratory and injunctive relief.
The amended complaint in No. 75 C 1898 is materially
identical to the subsequently filed complaint in No. 78 C
1780, except for the latter’s claim against BHE and its of-
ficials under Monell v. Department of Social Services of
the City of New York, 436 U. S. 658 (1978). The actions
have been consolidated for all purposes and are now
before the court on defendants’ motion to dismiss the
complaints for failure to state a claim upon which relief
can be granted pursuant to Rule 12 (b) (6), F.R.Civ.P.
At the outset, the court declines to treat the motion as
one for summary judgment pursuant to Rule 56,
F.R.Civ.P., on the ground that defendants’ brief contains
facts and arguments outside the complaints. Defendants’
intention to move against the complaints under Rule 12(b)
is apparent and the motion will be considered accordingly.
In this regard, the issue here is not whether plaintiffs
will ulitmately prevail but whether they are entitled to of-
fer evidence in support of their claims. Scheuer v. Rhodes,
416 U. S. 232, 236 (1974); Lipsky v. Com. United Corp.,
551 F. 2d 887, 895 (2 Cir. 1976). Therefore, all well-
pleaded material allegations will be accepted as true and
the complaints will be construed in favor of the complain-
_ing parties, Cruz v. Beto, 401 U. S. 319, 323 (1972);
Jenkins v. McKeithen, 395 U. S. 411, 421-22 (1969),
Sa
recognizing that there cannot be a dismissal unless it ap-
pears beyond doubt that plaintiffs can prove no set of
facts in support of their claims which would entitle them
to relief. Conley v. Gibson, 355 U. S. 41, 45-46 (1957). See
generally Scheuer v. Rhodes, supra, 416 U. S. at 237. Ap-
plying these standards, we find dismissal appropriate.
The complaints of approximately 40 pages each recite in
great detail the series of events that allegedly led to the
non-renewal of plaintiffs’ contracts of employment and
upon which they base their claims of constitutional
deprivation. The facts as alleged are related here in greater
detail than is our custom since plaintiffs’ claims are not
readily discernible and, in fact, fall victim of literary ex-
cesses which expose the controversy between the parties as
nothing more than ‘‘mere bickering’’ among teachers, a
claim not recognized to be of constitutional magnitude.
Plaintiffs’ allegations, read in their best light, reveal
that the underlying disagreement between the parties
originated in a difference of opinion over teaching
method. Plaintiffs advocated the ‘‘journal’’ method of
teaching, which involved periodic grading of students’
journals. Defendants, on the other hand, supported the
‘*lecture’’ method of instruction in which the teacher
would have only infrequent examinations to grade and an
occasional paper to consider. The journal method al-
legedly left the teachers less time to pursue scholarly
endeavors than the lecture method, which allegedly en-
couraged the teachers’ academic pursuits but sacrificed the
interests of the students. Thus, the complaint alleges a
fundamental disagreement over the best method of in-
struction in the college’s philosophy department, which
plaintiffs contend compelled them to voice criticism of
various personalities.
One of the advocates of the journal method was Elmer
Sprague, who in 1972 was vice-chairman of the philosophy
department. In late spring 1972, the chairman of the
6a
department, Martin Lean, made it known that he was go-
ing to spend a year at the University of Southern Califor-
nia. Defendants Salvator Cannavo, Paul Edwards, Ger-
trude Ezorsky, Edward Kent, Arnold Koslow and Paul
Taylor, all members of the faculty, feared that if Sprague
became chairman in Lean’s absence the journal method
would be adopted for those teaching in the department.
They therefore petitioned defendant John W. Kneller, the
president of the college, to conduct an election to fill the
acting chairman position. Kneller stated that it was the
responsibility of the president to designate an acting chair-
man but that he would consider the results of an informal
election held by faculty members within the department.
The informal election resulted in Sprague defeating Kent
by a one vote margin, and he was subsequently named ac-
ting chairman by Kneller.
During Sprague’s tenure as acting chairman, he engaged
in various acts which resulted in alienation of the faculty
defendants. For example, as acting chairman he was a
member of the college-wide personnel and budget com-
mittee, which voted on the final recommendations for pro-
motion at the college. Kent failed to receive sufficient
votes to be promoted to associate professor. Cannavo,
Koslow and Ezorsky all failed to gain sufficient votes to be
promoted to full professors. They all blamed Sprague for
their failure to gain promotions. In addition, Sprague in-
curred the wrath of Edwards by insisting on enforcing a
school regulation which denied him the opportunity of
teaching at the New School, an adult education institution
in New York City.
In May 1973, elections for department chairman and
membership on the appointments committee were con-
ducted. The faculty defendants banded together and en-
couraged a majority of the faculty to back their candidate,
Kent, for chairman. They were also successful in electing
four members of their faction, Cannavo, Ezorsky, Koslow
7a
and Taylor, to the appointments committee. By motion
that carried by a vote of seven to four, with Sprague ab-
Staining, the committee elected defendant Robert
Schwartz, who would not join the faculty until the fall of
1973, to replace Ezorsky on the committee for 1973-74,
since she was taking a leave of absence that year. Sprague
reported the election results to Kneller but questioned
whether Schwartz could properly be elected to replace
Ezorsky since he was not yet a member of the faculty. He
also questioned whether Kent should be confirmed as
chairman. Kneller subsequently assigned defendant Sher-
man Van Solkema, who was vice-president and provost of
the college at the time, to investigate the circumstances ex-
isting in the department and to recommend a course of ac-
tion.
In May 1973, Van Solkema solicited and received views
of Kent’s capabilities from various members of the depart-
ment, including plaintiffs, on the promise that there would
be no reprisals for their candid judgments and that their
reappointment and tenure applications would be decided
by an outside board of review. Plaintiffs were among the
faculty members who were of the opinion that the depart-
ment should be placed in receivership before permitting
Kent to become chairman.
Van Solkema reported the results of his investigation to
Kneller and on May 31, 1973, Kneller announced that (1)
Kent would only be designated as ‘‘Interim Chairman’”’
and would not be confirmed as chairman; (2) he was ap-
pointing a search committee for a permanent chairman;
and (3) Schwartz could not replace Ezorsky on the ap-
pointments committee because he was not yet a member of
the faculty. Thereafter the committee decided to postpone
election of Ezorsky’s replacement until the following fall.
In September 1973, the committee voted for Ezorsky’s
replacement. Schwartz, who by that time was a member of
the faculty, and Malcolm Brown, an associate professor
and sympathizer of plaintiffs, each received seven votes. A
8a
compromise was struck whereby Brown would serve as
member of the committee for the fall semester and
Schwartz for the spring.
At this same meeting the committee nominated two of
its members to fill the five-member search committee in-
stituted by Kneller. Cannavo and Edwards each received
eight votes, while Brown and Abigail Rosenthal, also a
plaintiff’s sympathizer, each received six votes. Sprague
asked Van Solkema to urge defendant Ethyle R. Wolfe,
‘dean of the school of humanities of which philosophy is a
department, to appoint Brown and Rosenthal so that both
teaching factions of the department would be represented
in the search committee. Van Solkema refused.
On October 3, 1973, Brown and plaintiff Jere Jones,
who were under consideration for reappointment, were
asked to submit written materials to the appointments
committee. Plaintiff David Massie, who was under con-
sideration for tenure, was not told to submit written
materials until the following day. Rosenthal, who had
already submitted written material, was specifically told
by both Kent and Taylor not to submit five chapters of a
book which she had written since the spring.
On October 5, 1973, the committee voted for reappoint-
ment of Brown, Kent, Korn, Massie, Wiseman and Caf-
fevtzis, but against Jones, Rosenthal and Smithurst.
Jones and Rosenthal subsequently instituted grievance
proceedings alleging political reprisal. Kneller granted a de
novo hearing and designated a college review committee,
to be chaired by Van Solkema, to review the records. Van
Solkema selected Hildegarde Wichert Five, a close friend
of Cannavo, to head a subcommittee. The subcommittee
conducted an investigation and report to the full commit-
tee, which then conducted a hearing at which Sprague was
permitted ten minutes to speak on behalf of Jones and
Rosenthal while Kent was allowed twenty minutes to speak
against them.
9a
The review committee upheld the decision not to reap-
point Jones and Rosenthal. The latter then filed a Step I
grievance, which Kneller denied in January 1974. A Step II
grievance resulted in an agreement between the Teachers
Union and the Administration in which the grievance was
remanded to Step I at the urging of defendant Robert
Grossman. Grossman was the grievance officer at the col-
lege and was involved at least to some extent in all deci-:
sions regarding plaintiffs’ status and acted as liaison be-
tween the parties and Kneller. Plaintiffs allege that the
move to remand to a Step I grievance was a scheme by
faculty defendants and Grossman to reassure the non-
reappointment of Jones and Rosenthal. But the alleged
scheme apparently failed when on June 13, 1974, Kneller
reappointed Jones and Rosenthal stating that ‘‘further
academic evaluation is warranted’’ in both cases.
However, on October 2, 1974, Jones and Rosenthal were
for a second time denied reappointment by the committee.
In March 1974, Massie submitted written material to the
committee with respect to his tenure application. Massie
also advised Kent that a book-length manuscript had been
submitted to seven scholars for review and that the com-
mittee should perhaps postpone consideration of his
tenure pending their responses. He supplied Kent with a
list of the scholars and the committee decided to postpone
voting on Massie’s tenure.
Thereafter, Massie discovered a letter from Kent to Pro-
fessor Van Heijenoort of Brandeis University, dated April
1, 1974, which solicited criticism of Massie’s manuscript.
Massie protested on the ground that Van Heijenoort was
personally hostile to him. Kent reassured him that Van
Heijenoort’s review would not be considered if negative.
On May 9, 1974, the Committee voted to deny Massie
tenure.
In the spring of 1974, Sprague and Brown met with
Kneller to discuss, inter alia, Kent’s qualifications to serve
as interim chairman, and on June 10 they submitted a
10a
memorandum setting forth reasons why he should not be
permitted to continue. In June 1974, Kneller removed
Kent and named Cannavo as acting chairman.
On October 1, 1974, Cannavo asked plaintiff Fred Korn
if he wanted to be considered for a certificate of con-
tinuous employment, somewhat akin to tenure, or for
associate professorship. Korn requested the former, but
on October 2, 1974, the committee voted not to recom-
_ mend Korn for a certificate.
The plaintiffs also allege that of considerable impor-
tance in their failure to gain reappointment and tenure was
the negative evaluations of their classroom technique sub-
mitted against them by faculty members. All of the
evaluators were chosen by Kent and Cannavo, as interim
and acting chairman respectively, and all were faculty
members named as defendants.
In December 1974, each plaintiff initiated a union
grievance. The college review committee set up by Kneller
for the de novo hearings was chaired by defendant Donald
R. Reich, who by this time had replaced Van Solkema as
vice-president and provost of the college. The review com-
mittee upheld the committee’s decisions to deny plaintiff’s
reappointment and at a Step I hearing in March 1975, that
decision was affirmed by Kneller. Plaintiff’s last day of
work pursuant to their contracts was August 31, 1975.
FIRST AMENDMENT CLAIMS
In Pickering v. Board of Education, 391 U. S. 563
(1968), a teacher was discharged for writing a letter to a
local newspaper criticizing the school board’s handling of
certain bond issue proposals and its allocation of financial
resources between educational and athletic programs. The
Court held that in determining whether a government
employee’s speech is constitutionally protected, ‘‘the in-
terests of the [employee], as a citizen, in commenting upon
lla
matters of public concern’’ must be balanced against ‘‘the
interests of the State, as an employer, in promoting the ef-
ficiency of the public services it performs through its
employees.’’ Jd. at 568.
In a later case, the Court projected that view even fur-
ther, holding that a public employee is not entitled to
reinstatement even when constitutionally protected con-
duct plays a ‘‘substantial’’ part in a decision to terminate
the employee, where the employer can show that termina-
tion would have occurred even in the absence of the pro-
tected conduct. Mt. Healthy City Board of Education v.
Doyle, 429 U. S. 274, 287 (1977).
Viewing the allegations of this complaint liberally as we
must, it is manifest that the claims of constitutional viola-
tion asserted are insufficient on their face. Plaintiffs do
not claim they were denied reappointment for speaking
publicly or privately in criticism of college policies. What
is SO apparent on the face of the complaint is an attempt to
draw the court:into a stale dispute admittedly between
‘*two factions in the department [who] did have a constant
disagreement as to the most appropriate method of
teaching certain classes and certain students.’’ Plaintiffs’
Memorandum of Law at 19. The conceded ‘‘conflict and
dissension between two factions in the department’’—
again to quote plaintiffs, id. at 13—plainly amounts to
nothing more than ‘‘bickering’’ among academic col-
leagues and hence cannot give rise to a violation of First
Amendment rights. See Pickering v. Board of Education,
supra; Chitwood v. Feaster, 468 F. 2d 359 (4 Cir. 1972).'
'We have considered in this connection the latest Supreme Court
decision, Givhan v. Western Line Consolidated School Dist., 99 S.Ct.
693 (1979), which plaintiffs recently called to the court’s attention.
That case, however, dealt with a teacher’s private encounters with a
school principal in which she voiced criticism of employment policies
and practices which she considered racially discriminatory. That situa-
tion is essentially different from the interfactional controversy in-
volved here.
12a
If it were otherwise, the door would be opened for
countless appeals to federal judges to act as mediators in
academic disputes—a task this court considers itself par-
ticularly unadapted to perform.
The Court of Appeals for this Circuit sitting en banc has
recognized that not every claim asserted by a teacher re-
quires an evidentiary hearing to determine the merits. In
East Hartford Ed. Ass’n v. Bd. of Ed. Etc. , 562 F. 2d 838,
856 (2 Cir. 1977) (en banc), the court declined to accord
First Amendment protection to a teacher’s symbolic
**speech,’’ i.e., his desire to wear a necktie. It stated:
“This final claim [that dress of this type
enhances his ability to teach] does not implicate the
First Amendment. It is merely an assertion that one
teaching technique is to be preferred over another.
It has no more to do with a constitutional interest
than would a claim that closer ‘rapport’ could be
achieved by arranging students’ desks in a circle
rather than in rows.’’ Jd. at 857 n. 5.
Although East Hartford Ed. Ass’n involved high school
education, it clearly cautions against federal court in-
tervention except when First Amendment rights are truly
in jeopardy as a result of offical actions. Because teaching
is by definition an expressive activity, every dispute over
the best method of classroom instruction would raise First
Amendment issues calling for federal court intervention.
See East Hartford Ed. Ass’n v. Bd. of Ed., supra, 562 F.
2d at 859.
Since plaintiffs have failed to allege anything more than
an academic dispute with professional colleagues, their
claims for relief under §1983 and the First Amendment
must be dismissed.
13a
FOURTEENTH AMENDMENT DUE PROCESS CLAIMS
Plaintiffs’ right to maintain any due process claims
depends, of course, upon whether their interest in con-
tinued employment rises to the level of ‘‘property’’ or
‘‘liberty’’ protected by the Fourteenth Amendment.
Simard v. Board of Education of Town of Groton, 473 F.
2d 988, 992 (2 Cir. 1973). In Board of Regents v. Roth,
408 U. S. 564 (1972), and Perry v. Sindermann, 408 U. S.
593 (1972), the Court considered the interest of non-
tenured teachers like plaintiffs. It concluded that to
demonstrate a deprivation of liberty, a plaintiff must show
that the reasons given for denial of tenure would damage
his standing in the community or foreclose him from tak-
ing advantage of other employment opportunities. A
property interest would be properly asserted only if plain-
tiff demonstrates more than a unilateral expectation of
continued employment; he must show some legitimate
claim of entitlement to it by pointing to concrete State
rules or regulations or a well-established joint under-
standing amounting to a de facto tenure program. See
Simara W™Board of Education of Town of Groton, supra,
473 F. 2d at 992.
Plaintiffs do not, and apparently cannot, allege that
they have a property interest in re-employment and tenure
under Roth. Nor do they allege that any de facto tenure
program existed upon which they can claim a property in-
terest in their continued employment under Perry. Plain-
tiffs, moreover, have apparently conceded that they have
been deprived of no liberty interest. The complaint fails to
allege that anything defendants have done has seriously
damaged plaintiffs’ standing in the community or has im-
posed a stigma or other disability on them that has
foreclosed their ability to take advantage of other employ-
ment opportunities. Roth, supra, 408 U. S. at 573. See
Wahba v. New York University, 492 F. 2d 96 (2 Cir.), cert.
l4a
denied, 419 U. S. 874 (1974); Simard v. Board of Educa-
tion of Town of Groton, supra; Russell v. Hodges, 470 F.
2d 212 (2 Cir. 1972).
In Roth, the Court made it clear that the stigma to
which it referred must involve moral turpitude, for exam-
ple that which attaches to a charge of dishonesty or im-
morality. 408 U.S. at 573. The fact that a discharge might
make a person less attractive as an employee or have a
deleterious effect upon his future employment oppor-
tunities does not give rise to a right to a pre-termination
hearing. Jd. at 474 n.13. And, more recently, the Court
added yet another gloss to the Roth cases. It made it clear
that the liberty interest recognized by Roth cannot be in-
fringed upon without a showing that the public employer
publicized the reasons for the termination. Bishop v.
Wood, 426 U. S. 341 (1976). See also Board of Curators v.
Horowitz, 435 U.S. 78, 83 (1978); Codd v. Velger, 429 U.
S. 624 (1977); Longarzo v. Anker, 578 F. 2d 469 (2 Cir.
1978). Here, the allegations of the complaint simply do
not state a claim of deprivation of liberty under Roth. See
LaBorde v. Franklin Parish School Board, 510 F. 2d 590
(5 Cir. 1975) (decision not to renew teacher’s contract
because of dissatisfaction with teaching methods and
classroom technique did not state a claim under Roth).
Accord Blair v. Board of Regents, 496 F. 2d 322, 324 (6
Cir. 1974); Russell v. Hodges, supra; Jablon v. Trustees of
California State College, 482 F. 2d 997 (9 Cir. 1973), cert.
denied, 414 U. S. 1163 (1974).
Plaintiffs argue, notwithstanding, that they have a
property interest in a fair hearing, which they claim arises
out of a bargaining agreement between plaintiffs’ union
and the BHE. The agreement assertedly grants non-
tenured teachers the right of review and confrontation in
the evaluation of their job status. Plaintiffs’ Brief in Op-
position at 26-27.
We do not believe that any constitutional right to due
process recognized under the Roth and Pervv line of cases
15a
supports plaintiffs’ claim. These cases involved a public
employee’s right to a pre-termination hearing if a decision
to terminate would deprive him of a property or liberty in-
terest within the meaning of the cases. Here, plaintiffs
have not alleged a deprivation of either property or liberty
sufficient to withstand a motion to dismiss. Accordingly,
it would be somewhat anomalous to conclude that a con-
tractual right to review and confrontation actually af-
forded plaintiffs did not accord with established concepts
of due process. In the court’s view, this would open to
constitutional litigation a number of claims foreclosed by
the decisions in Roth and Perry. See Eichman vy. Ind. State
Univ. Bd. of Trustees, 597 F. 2d 1104, 1108 (7 Cir. 1979).
Cf. Longarzo v. Anker, 578 F. 2d 469 (2 Cir. 1978). Since
plaintiffs have pointed to no property or liberty right pro-
tected by the Fourteen Amendment, their claims of viola-
tions of substantive and procedural due process are also
dismissed. See Webster v. Redmond, 599 F. 2d 793 (7 Cir.
1979); Eichman v. Ind. State Univ. Bd. of Trustees, supra,
597 F. 2d at 1108.
CONSPIRACY UNDER 42 U. S. C. §1985 (3)
The deficiency of plaintiffs’ §1985 (3) pleading is readily
apparent. In Griffin v. Breckenridge, 403 U.S. 338 (1971),
the Court concluded that
‘(t]he language requiring intent to deprive equal
protection, or equal privileges and immunities,
means that there must be some racial or perhaps
otherwise class-based, invidiously discriminating
animus behind the conspirators’ action. The con-
spiracy, in other words, must aim at a deprivation
of the equal enjoyment of rights secured by the law
to all.’’ 403 U. S. at 102.
l6a
The language has been interpreted to require discrimina-
tion between classes based on racial bias, national origin
or religion, Perrotta v. Irizarry, 430 F. Supp. 1274, 1278
(S.D.N.Y.), aff’d, 573 F. 2d 1294 (2 Cir. 1977), citing
Hahn v. Sargent, 523 F. 2d 461 (1 Cir. 1975); Arnold vy.
Tiffany, 487 F. 2d 216 (9 Cir. 1973), cert. denied, 415
U. S. 984 (1974); Western Telecasters, Inc. v. California
Federation of Labor, 415 F. Supp. 30 (S.D. Cal. 1976),
and the class must be ‘‘well defined’’ and ‘‘a traditionally
disadvantaged group.’’ Santiago v. City of Philadelphia,
435 F. Supp. 136, 156 (E.D. Pa. 1977).
Although the complaint alleges a lengthy series of so-
called overt conspiratorial acts, it fails entirely to set forth
any allegation of class-based discriminatory animus.
Whatever the scope of a §1985 (3) action, which is cur-
rently undergoing an evolutionary process, see Great Am.
Federal S. & L. Ass’n v. Novotny, 99 S.Ct. 2345 (1979);
Regan v. Sullivan, 557 F. 2d 300, 307-08 (2 Cir. 1977), the
court is of opinion that the allegations of this complaint
are insufficient, see Ellentuck v. Klein, 570 F. 2d 414 (2
Cir. 1978); Kletschka v. Driver, 411 F. 2d 436 (2 Cir.
1969); Gordon v. Anker, 444 F. Supp. 49 (S.C.N.Y.
1977); Morpugo v. Bd. of Higher Ed. in City of New
York, 423 F. Supp. 704 (S.D.N.Y. 1976), notwithstanding
plaintiffs’ contention that a class of three members of a
minority faction of a college department toward which
‘invidious animus”’ is directed satisfies the section’s re-
quirements. Plaintiffs’ §1985 (3) claims are therefore
dismissed.
MONELL CLAIMS
Finally, the complaint under docket number 78 C 1780
asserts liability on the part of the Board of Higher Educa-
tion of the City of New York and its officials under the
theory of Monell v. Department of Social Services of the
City of New York, 436 U. S. 658 (1978). In Monell, the
17a
Court concluded that a governmental entity could be held
liable if ‘‘action pursuant to official municipal policy of
some nature caused a constitutional tort.’’ Jd. at 691.
Liability does not arise under §1983, however, on a
respondeat superior theory. Dominguez v. Beame, slip op.
3409, 3417 (2 Cir., June 28, 1979). Thus,
‘fa local government may not be sued under §1983
for an injury inflicted solely by its employees or
agents. Instead, it is when execution of a govern-
ment’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may
fairly be said to represent official policy, inflicts the
injury that the government as an entity is responsi-
ble under §1983.’’ 436 U. S. at 694.
And plaintiffs bear the burden of showing first that the
governmental entry maintained or practiced an un-
constitutional or unlawful ‘‘policy’’ or ‘‘custom,’’ and
second that the policy or custom ‘‘caused’’ or was the
‘‘moving’’ force behind the violation. Dominguez v.
Beame, supra, slip op. at 3418. Finally, we assume for
purposes of this discussion that Monell is applicable not
only to plaintiffs’ §1983 claims but also to their §1985 (3)
allegation. See Owens v. Haas, slip op. 3647, 3654 (2 Cir.,
July 9, 1979); Heimbach v. Village of Lyons, slip op. 2387
(2 Cir., April 26, 1979).
Under the court’s rulings, above, it is clear there can be no
liability under Monell’s rationale. Moreover, plaintiffs do
not, and apparently cannot, allege that any of de-
fendant’s actions were undertaken in ‘‘execution of a
government’s policy or custom.’’
Accordingly, defendants’ motion to dismiss the con-
solidated complaints is granted.
SO ORDERED.
18a
The Clerk of Court is directed to enter judgment
dismissing the complaints and is further directed to for-
ward copies of this memorandum and order to counsel for
the parties.
EDWARD R. NEAHER
i. a a Se
Dated: Brooklyn, New York
December 18, 1979
19a
Judgment.
UNITED STATES DISTRICT COURT,
EASTERN DISTRICT OF NEW YORK.
e
JERE JONES, FRED KORN and DAVID MASSIE,
Plaintiffs,
against
JOHN W. KNELLER, individually and as President of
Brooklyn College, ef al.,
Defendants.
75 C 1898
78 C 1780
®
A memorandum and order of Honorable Edward R.
Neaher, United States District Judge, having been filed on
December 20, 1979, granting defendants’ motion to
dismiss the consolidated complaints, and directing the
Clerk of the Court to enter judgment dismissing the com-
plaints, it is
ORDERED AND ADJUDGED that the plaintiffs take
nothing of the defendants; that the defendants’ motion to
dismiss the consolidated complaints is granted; and that
judgment is hereby entered dismissing the complaints.
RICHARD H. WEARE
Clerk of Court
Dated: Brooklyn, New York
December 20, 1979
20a
APPENDIX C.
Amended Complaint.
UNITED STATES DISTRICT COURT,
EASTERN DISTRICT OF NEW YORK.
e
JERE JONES, FRED KORN and DAVID MASSIE,
Plaintiffs,
against ,
JOHN W. KNELLER, individually and as President of
Brooklyn College, SHERMAN VAN SOLKEMA, individu-
ally and as former Vice-President and Provost of
Brooklyn College, ETHYLE R. WOLFE, individually and
as Dean of the School of Humanities, Brooklyn Col-
lege, SALVATOR CANNAVO, PAUL EDWARDS, GER-
TRUDE EZORSKY, EDWARD KENT, ARNOLD KOSLOW,
ROBERT SCHWARTZ, PAUL TAYLOR, individually and
as present and former voting members of the Appoint-
ments Committee of the Philosophy Department at
Brooklyn College, DONALD R. REICH, individually and
as Vice-President and Provost of Brooklyn College and
ROBERT GROSSMAN, individually and as Grievance Of-
ficer and Special Assistant to the President of Brooklyn
College for Legal Affairs,
Defendants.
Civil Action No. 75 Civ. 1898
Plaintiffs demand a Jury Trial
2la
Plaintiffs, by their attorneys, Alpert & O’Rourke, as
and for their amended complaint, respectfully allege:
JURISDICTION
1. The jurisdiction of this Court is invoked under Title
28, United States Code, Section 1343. This action arises
under the First and Fourteenth Amendments of the Con-
stitution of the United States of America and Title 42,
United Dates Code, Sections 1983 and 1985(3).
PARTIES
2. Plaintiffs, Jere Jones (‘‘Jones’’), Fred Korn
(‘‘Korn’’) and David Massie (‘‘Massie’’) are former
members of the Philosophy Department at Brooklyn Col-
lege.
3. Defendant, John W. Kneller (‘‘Kneller’’) is President
of Brooklyn College. Kneller has the prime responsibility
for the proper administration of Brooklyn College in ac-
cordance with the By-Laws of the Board of Higher Educa-
tion and in accordance with State Law. Kneller is sued in
his individual and official capacities.
4. Defendant, Sherman Van Solkema (‘‘Van
Solkema’’) was the Vice-President and Provost at
Brooklyn College during the period from Fall 1972
through Spring 1974. As such he was responsible for im-
plementing the By-Laws and Resolutions of the Board of
Higher Education and carrying out directives of the Presi-
dent and acting as Deputy for the President. Presently he
is a Professor in the Department of Music. He is sued in
his iridividual and official capacities.
5. Defendant, Ethyle R. Wolfe (‘‘Wolfe’’) is the Dean
of the School of Humanities at Brooklyn College. As such
22a
she is responsible for the administration and coordination
of policies and procedures as they concern the School of
Humanities. The Philosophy Department (‘‘Department’’)
is part of the School of Humanities (‘‘School’’). She is
sued in her individual and official capacities.
6. Defendants, Salvator Cannavo (‘‘Cannavo’’), Paul
Edwards (‘‘Edwards’’), Gertrude Ezorsky (‘‘Ezorsky’’),
Edward Kent (‘‘Kent’’), Arnold Koslow (‘‘Koslow’’),
Robert Schwartz (‘‘Schwartz’’) and Paul Taylor
(‘‘Taylor’’) are members of the Department at Brooklyn
College and are present and former members of the Ap-
pointments Committee of the Department. Unless other-
wise described herein, these seven defendants are
designated as the ‘‘defendant-faculty’’. They are sued in
their individual and official capacities.
7. Defendant, Donald R. Reich (‘‘Reich’’) is Vice-
President and Provost of Brooklyn College from
September, 1974 to present. As such he was responsible
for implementing the By-Laws and Resolutions of the
Board of Higher Education and carrying out directives of
the President and acting as Deputy for the President.
Reich is sued in his individual and official capacities.
8. Defendant, Robert Grossman (‘‘Grossman’’) was
the Grievance Officer for Brooklyn College during the
years 1972 to 1976. As such he was responsible for con-
ducting hearings and making recommendations to the
President on all Step I grievances. At Step II grievance
hearings he represented the College. He is presently
Special Assistant for Legal Affairs to President Kneller.
He holds a Higher Education Officer line at Brooklyn Col-
lege. He is sued in his individual and official capacities.
23a
STATEMENT OF FACTS
9. Brooklyn College (‘‘College’’) is one of ten tax-sup-
ported tuition-free ‘‘senior’’ institutions of higher educa-
tion which form a part of the City University of New York
(‘*CUNY’’). CUNY is under the supervision of the Board
of Higher Education pursuant to the Education Laws of
the State of New York.
10. The plaintiffs joined the Faculty of the Department
at the College in 1970 and 1971 and were reappointed each
year until August 31, 1975, when the decision not to reap-
point them for the year 1975-1976 became effective.
MISSION OF THE DEPARTMENT
11. The central mission of the College is to provide
undergraduate education leading to the bachelor’s degree.
Thus the chief mission of the Department is to provide a
range for the curriculum of a liberal arts college. The
Department’s minuscule M.A. program, and its members’
occasional participation in the Philosophy PH.D. pro-
gram at the Graduate Center are no more than ancillary to
the Department’s responsibility for undergraduate
teaching. The plaintiffs were of the conviction that
undergraduate teaching had first claim on their time and
energies.
12. The plaintiffs found that teaching at the College
was affected by continuously increasing class size and by
increasing diversity in the academic background and
preparation of the students. The ‘‘open enrollment’’
policy brought to the College students of diverse cultural
backgrounds, with differing expectations about the nature
and meaning of a college education. As class size and stu-
dent diversity increased, cumbersome bureaucratic pro-
cedures evolved to deal with the resulting administrative
24a
and academic problems. This educational environment
alienated both students and faculty and seriously impaired
the educational process. Plaintiffs found that to meet their
teaching responsibilities effectively, they had to re-think
and to re-evaluate traditional pedagogical methods.
LECTURE METHOD VERSUS JOURNAL METHOD
13. Large classes are most easily taught by the lecture
method, where evaluation of students is by occasional ex-
aminations and term papers. However, the lecture-
examination method of instruction presupposes that
students have similar academic preparation and expecta-
tions. Since such similarity does not exist at the College,
the lecture method does, however, enable the instructor to
evade the pedagogical problems of student diversity and
overcrowded classes, and frees him to pursue scholarly ac-
tivities upon which promotion and tenure in the CUNY
system largely deperd=In this way, the educational in-
terests of the students are sacrificed to the career ambi-
tions of the faculty.
14. The plaintiffs found the lecture method unsatis-
factory for the conditions existing at the College and in-
troduced another method of teaching philosophy. It is a
method of individualized instruction that is responsive to
the needs of the students, but one that makes great
demands on the instructor’s time and availabililty. In this
method each student works on a series of assignments of
increasing difficulty. The student works in a bound com-
position book (called a ‘‘Journal’’) that is collected and
read by the instructor a number of times throughout the
semester. A one-to-one relationship between student and
teacher is thereby created. The instructor is able to
monitor the student’s progress, give detailed criticism, and
to make suggestions designed to help the student in his on-
going philosophical thinking. In this way each student in a
25a
Class receives individualized instruction; each is able to
work at his own pace, and assignments can be tailored to
the student’s particular needs. This journal method has
proven to be an effective way to overcome the problems of
large classes and diversity in academic preparation.
15. The journal method, however, makes great
demands on the instructor. He must collect and grade the
journals frequently, typically at least five or six times a
semester, and the student is also free to hand in his journal
for comment at any time. Journals must be read and
returned as quickly as possible so that the student’s
momentum in the learning process is maintained. Because
each journal must be read carefully and given individual
criticism, the use of this method with large classes entails
many hours of work each week outside of class, in addi-
tion to the time normally given to class preparation.
Moreover, the nature of the journal assignments is such
that it is necessary to confer with students about their
journal work, often at great length. Thus, the instructor
must make himself available to his students for much mere
time than the officially required office hours. (College
regulations require that each full-time member of the
faculty hold three office hours per week; the journal
method requires that about four times this number of
hours be made available to students for individualized
consultation outside the classroom). Thus the journal
method of instruction involves both the student and
teacher in the learning process in a way never approached
by the lecture method.
PLAINTIFFS’ COMMITMENT TO COLLEGE LIFE
16. Beyond the use of the journal method, the plaintiffs
have tried to participate in, and help create, the intellec-
tual life of the College. The three plaintiffs have (without
remuneration) taught tutorials (for college credit) and
26a
unofficial courses to interested students. Further, because
they spent their time on campus, they were able to par-
ticipate in various academic activities of the Department
and of the College, such as attending seminars to hear
papers by scholars from other universities and by members
of the College faculty, and attending meetings of the
Philosophy Club to hear student discussions and papers
presented by the students in the Department.
DEFENDANT-FACULTY’S INDIFFERENCE TO
COLLEGE LIFE
17. In sharp contrast, except for their teaching duties
and administrative functions, the defendant-faculty have
been distinguished by their absence from the campus.
Moreover, some of them have sought, and in some cases
obtained, teaching schedules that keep their time on the
campus to an absolute minimum to facilitate their interests
and activities outside the College. The assurance of such
preferential treatment in scheduling and class assignments
for the defendant-faculty became a source of conflict with
the Department. The defendant-faculty have also been
grossly remiss in their obligations to attend philosophy
papers at the College given both by their colleagues and
outside scholars, and to attend student philosophy papers
and seminars sponsored by the students’ Philosophy Club.
Moreover, the defendant-faculty have continued to use the
lecture method of instruction in their classes, and have ap-
parently made no attempt in their teaching to deal with
their overcrowded classes and the increasing diversity in
the academic preparation and ethnic background of their
students.
SPRAGUE AND THE JOURNAL METHOD
18. The plaintiffs were not alone in their desire to teach
27a
philosophy by the journal method. One of their col-
leagues, Elmer Sprague (‘‘Sprague’’) had in 1970 been re-
examining his teaching of philosophy and came to the con-
clusion that the journal method could provide students of
philosophy with plenty of opportunity to do philosophy
by participating in a written dialogue with the teacher.
19. For Sprague, the journal method had another vir-
tue. It afforded at least one educational experience in
which the student is taken seriously as an individual. For
the space of a term, the student has a teacher continuously
interested in the student’s intellectual progress. And in an
institution as alienating as the College, Sprague welcomed
the student’s surprise and joy at being taken seriously.
20. Apart from Sprague, those who _ regarded
undergraduate teaching as their primary commitment to
the College were non-tenured, junior faculty; those who
were not greatly concerned with undergraduate teaching
were, for the most part, tenured, senior faculty. Sprague’s
long-held conviction that undergraduate teaching was the
primary duty of the faculty, his support of the journal
method, and his view that the faculty should participate
fully in the educational life of the College, presented a
serious threat to the senior faculty’s interest in keeping
their time on campus at a minimum.
THE DEFENDANT-FACULTY BAND TOGETHER
21. As events unfolded, the defendant-faculty saw fit to
band together to protect their interests. In the late Spring
of 1972, when it was learned that Martin Lean, Chairman
of the Department, was going to spend a year at the
University of Southern California, a petition was drafted
and forwarded to Kneller requesting an election to fill the
Acting Chairman position. A petition for such purpose
was unprecedented in the history of the Department at the
28a
College. Sprague was Vice-Chairman of the Department
at that time and would by tradition have become Acting
Chairman. The petition was signed by seven members of
faculty rank of the Department (including six of the
defendant-faculty). The petition was not shown to the
plaintiffs, Malcolm Brown or Abigail Rosenthal, all of
whom except for plaintiff Korn had faculty rank and were
eligible to sign the petition.
22. Kneller denied the request stating that Lean had not
vacated his post and that the standard procedure was for
the President to designate the Acting Chairman in the
form of a recommendation to the Board of Higher Educa-
tion (‘‘BHE’’). Kneller agreed to receive the results of any
informal election before making his recommendation.
SPRAGUE DEFEATS KENT
23. On May 8, 1972, the Department conducted its in-
formal election. The result was Sprague 7, Kent 6. Sprague
was thus declared the Department’s choice for Kneller’s
recommendation to the BHE for Acting Chairman of the
Department for the Academic year 1972-73.
SPRAGUE BECOMES ANATHEMA TO
DEFENDANT-FACULTY
24. During the Academic year 1972-73, with Sprague as
Acting Chairman of the Department, the defendant-
faculty concluded that Sprague was unacceptable to them
in such a position of authority. As Acting Chairman of the
Department, Sprague was a member of the College-Wide
Personnel and Budget Committee presided over by
Kneller. It was the responsibility of this committee to vote
on the final recommendations for promotion in the Col-
lege. At the Committee’s annual meeting to decide on pro-
motions in the Fall of 1972, Sprague, when questioned by
29a
Kneller, reported that Kent had been voted reappointment
for 1973-74 by a vote of only 3-2 in the Department’s Ap-
pointments Committee. Kent thereupon failed to receive
enough votes in the College-Wide Personnel and Budget
Committee to be promoted to Associate Professor. Fur-
ther, under questioning by Dean of Faculties, Sprague also
reported to this Committee that Cannavo did not have a
contract to publish his manuscript and that his
bibliography otherwise consisted of one jointly-authored
article. Cannavo thereupon fa‘led to gain enough votes in
the Committee to be promoted to Full Professor. Each
filed but lost grievances on their failure to be promoted.
Both Kent and Cannavo blamed Sprague for their failure
to gain promotions.
25. Kent and Cannavo were not the only defendant-
faculty who were opposed to Sprague. Both Koslow and
Ezorsky opposed Sprague and for the same reason, viz,
Sprague was a member of a college-wide committee on
promotion in 1971 which refused to recommend Koslow
or Ezorsky for promotion to Full Professor on the
grounds that neither had published a book, which was one
of the assumed and applied criteria for such promotion.
26. Edward was also opposed to Sprague because,
while Sprague was Acting Chairman, he instisted on en-
forcing the multiple position regulations with regard to
Edward’s teaching at the New School which was in con-
flict with his College duties, and because Sprague insisted
that both senior and junior faculty should take their
proper share of the undergraduate teaching load and
Department duties such as committee work and making
teaching observations.
30a
DEFENDANT-FACULTY RESOLVES TO CONTAIN
SPRAGUE
27. By the Fall of 1972, the defendant-faculty knew
that they must take strong action against Sprague if they
were going to continue their privileged ways at the Col-
lege. Since Sprague was a tenured Full Professor and had
the support of the majority of the Junior Faculty, it
became necessary to isolate him and to nullify his in-
fluence in the Department. This could be accomplished by
denying Sprague, or any member not aligned with the
Defendant-faculty, the Chairmanship of the Department
or membership on its Appointments Committee.
28. The week preceding the triennial election Sprague
published a list of the faculty eligible to vote for Chairman
in the upcoming election. The list included the name of
Michael Smithurst because the Dean of Faculties had in-
formed Sprague that Smithhurst’s line entitled him to
vote. Koslow objected and went to the Dean of Faculties
who then reversed his decision.
29. With the triennial election for Department Chair-
man and Appointments Committee coming up in May,
1973, the defendant-faculty put into motion their plan to
isolate Sprague. They lined up their candidate for chair-
man—Kent—and seven agreed to vote for him, giving him
a majority (since there were only twelve voting members of
faculty rank). They next set about to line up the Appoint-
ments Committee to which four members would be
elected, the Chairman sitting as the fifth member. The
membership of the Appointments Committee was to in-
clude only those associated with Kent, though this violated
the long-standing practice in the Department that there be
representation of both majority and minority factions on
the Appointments Committee.
3la
THE CABAL TAKES CONTROL
30. As expected, Kent was elected Chairman by a vote
of 7-5. Cannavo, Ezorsky, Koslow and Taylor were
elected members of the Appointments Committee. Ezor-
sky then moved and Cannavo seconded that the Depart-
ment should at that time elect a replacement for her on the
Appointments Committee for the Academic year 73-74
since she had requested, and Kneller was recommending,
special leave for her for that year. The vote was 7-4 in
favor of the motion, Sprague abstaining.
31. Edwards then moved and Ezorsky seconded that
the list of those eligible for election to the Appointments
Committee be enlarged to include Emily Michael and
Robert Schwartz who were to join the Department in the
Fall of 1973. Sprague ruled the motion out of order,
stating that neither was eligible for election, pursuant to
the By-Laws of the BHE. Koslow appealed the chair’s rul-
ing; Taylor seconded the appeal. The vote on the appeal
was 7-4, the appeal being successful. Michael and
Schwartz were then added to the list of those eligible and
Schwartz was elected as Ezorsky’s replacement by a vote
of 7-4 with one abstention.
32. Sprague reported the results of the election to
Kneller and questioned whether Schwartz could properly
be elected as replacement for Ezorsky and whether Kent
should properly be confirmed as Chairman. Kneller then
assigned Van Solkema to investigate the circumstances ex-
isting in the Department and to recommend a course of ac-
tion.
PLAINTIFFS COMPLAINT TO THE
ADMINISTRATION
33. In May, 1973, Van Solkema interviewed the faculty
to get their views on Kent’s becoming Chairman. In asking
32a
them to speak freely, Van Solkema promised each of the
nontenured faculty who had voted against Kent that there
would be no reprisals for their candid judgments expressed
to him, and that their reappointment and tenure applica-
tions would be decided by an outside board of review.
They told Van Solkema that in their view Kent was profes-
sionally, morally and emotionally unfit to be Chairman
and that the Department should be placed in receivership.
THE ADMINISTRATION RESPONDS FAVORABLY
34. Van Solkema reported to Kneller the results of his
investigation and on May 31, 1973, Kneller met with the
Department. He made three announcements: 1) Kent
would not be confirmed as Chairman; he would, however,
be designated ‘‘Interim Chairman’’ until a permanent
chairman could be selected; 2) he was instituting a search
committee for a permanent chairman; and 3) Schwartz
could not properly be a candidate to serve as Ezorsky’s
replacement on the Appointments Committee because he
was not yet a member of the faculty.
35. That same day Sprague called for nominations at
the meeting of the Department to elect a replacement for
Ezorsky. At that time a motion was made and seconded to
postpone the election of a replacement for Ezorsky until
the Fall. The motion carried by a vote of 7-5.
36. In September, 1973, the Department met to elect a
replacement member for Ezorsky on the Appointments
Committee. Schwartz and Brown each received 7 votes
(Schwartz having joined the faculty as of September 1,
1973). A compromise was offered and accepted. Each
would serve a semester on the Appointments Committee,
Brown in the Fall and Schwartz in the Spring.
37. At this meeting the Department voted for two
members to serve on the five-member Search Committee
33a
instituted by Kneller to recruit a permanent Chairman for
the Department. Cannavo and Edwards both received 8
votes; Brown and Rosenthal received 6 votes. Sprague
then met with Van Solkema and requested him to urge
Wolfe to appoint Brown and Rosenthal in order to have
both the majority and minority factions of the Depart-
ment represented on the Search Committee. Van Solkema
refused to do so.
THE CABAL SETS INTO MOTION ITS PLAN TO
RETALIATE
78. During the week preceding the meeting of the new
Appointments Committee on October 3, 1973, Massie,
Jones and Brown were called in separately to Kent’s of-
fice. Massie and Jones were warned that four of the junior
faculty lines were endangered for sudden budgetary
reasons. Brown was warned that some lines were en-
dangered. But the talk of losing four lines was dropped
when, shortly before the October 3, 1973 Departmental
meeting Sprague challenged Kent’s assertion of a ‘‘budget
crisis’’ and called Wolfe to check. The ‘‘crisis’’ was of-
ficially ended with Kent’s announcement at the Depart-
ment meeting of October 3, 1973 that Wolfe had informed
him that there was no budgetary crisis.
39. On the afternoon of Wednesday, October 3, after
the Appointments Committee had held its first session (at
which no action was taken on reappointments) the request
was first made to Brown, Massie and Jones to submit writ-
ten material. There was a notable lack of effort on the part
of Kent, who was making the requests for written
materials, to assure that the materials got to the Commit-
tee in time to be read. Massie was not told until Thursday,
October 4 that written work had to be submitted. Only
Jones, Brown and Massie were asked to submit publica-
tions, manuscripts and work-in-progress. Rosenthal had
already submitted publications and work-in-progress to
34a
replace the material which had been submitted with her
Spring, 1973 promotion application, but she was
specifically told by both Kent and Taylor not to submit the
five chapters of a book on evil, which she had written since
the Spring.
40. On October 5, 1973, the Appointments Committee
voted to reappoint Brown, Kent, Korn, Massie, Wiseman
and Caffentzis and voted not to reappoint Jones, Rosen-
thal and Smithurst.
41. In the Spring of 1973, Robert Grossman was the
Grievance Officer at Brooklyn College. From the time of
the May 9, 1973 Triennial election for Chairman and Ap-
pointments Committee members until the plaintiffs’
employment at Brooklyn College was_ terminated,
Grossman was involved to a greater or lesser extent in
most, if not all, decisions and actions that directly or in-
directly affected the professional status of the plaintiffs
during their tenure at Brooklyn College.
42. Further, after the plaintiffs had left the College in
the Fall of 1975, seeking employment elsewhere,
Grossman continued to be involved in decisions and ac-
tions affecting the reputation and professional status of
the plaintiffs by assuming a position of responsibility in
the College’s efforts to persuade the American
Philosophical Association to remove a finding of censor-
ship against the Department of Philosophy.
43. Grossman’s position at the College was such that he
was the intermediary between the plaintiffs and defend-
ants to the President who relied on his good faith in
presenting the respective positions of the parties.
GRIEVANCES AND DE NOVO HEARING
44. Jones and Rosenthal then instituted grievances
35a
charging political reprisal. The Union requested a ‘‘De
Novo”’ hearing on the issue of whether or not Jones and
Rosenthal were ‘‘with merit’’.
45. Kneller granted the request and designated the Col-
lege Review Committee, under the chairmanship of Van
Solkema, to review the records. Van Solkema appointed a
Subcommittee of three to investigate and report. As
Chairman of the Subcommittee Van Solkema selected
Hildegarde Wichert Five (‘‘Five’’), a close friend and ally
of Cannavo.
46. The Subcommittee conducted its investigation and
reported to the full Committee. The full Committee al-
lowed Sprague to speak only for ten minutes on behalf of
Jones and Rosenthal, while Kent was allowed to speak for
twenty minutes against Jones and Rosenthal. Edward
Lutz, the Union’s representative requested time to address
the full Committee but his request was denied by Van
Solkema.
47. In December, 1973, the College Review Committee
upheld the action of the Department’s Appointments
Committee not to reappoint Jones and Rosenthal. In
January, 1974, Kneller denied the Step I grievance.
48. In January, 1974, Jones and Rosenthal initiated a
Step II grievance. The Union and the Administration
agreed to remand the Step II hearing to a Step I hearing
without prejudice to either side.
KENT REMOVED AS INTERIM CHAIRMAN
49. In late Spring, 1974, Sprague and Brown met with
Kneller to discuss the Jones and Rosenthal cases and to
discuss reasons why Kent ought not continue to serve as
Interim Chairman. Kneller requested Sprague and Brown
to set forth in writing the considerations that weighed
36a
against Kent continuing as Interim Chairman. On June 10,
1974, such a memorandum was delivered to Kneller.
50. On June 13, 1974, Kneller reappointed Jones and
Rosenthal, stating in his Step I Grievance Decision that it
is ‘‘the decision of the President that further academic
evaluation is warranted”’ in both cases.
51. Shortly thereafter, Kneller removed Kent as Interim
Chairman and named Cannavo Acting Chairman.
52. Earlier, in February 1974, Kent contacted Korn and
asked him to decide whether he wished to be considered
for a Certificate of Continuous Employment (‘‘CCE’’) as
a certified lecturer or whether he wished to wait until the
following Academic year and try for appointment as an
Assistant Professor. Korn told Kent, that given the choice,
he would choose the Assistant Professor category and,
therefore, that Kent should not consider Korn for the
CCE.
53. In March, 1974, Kent contacted Massie regarding
Massie’s tenure consideration by the Appointnients Com-
mittee and requested all of his written material. Massie
submitted manuscripts to Kent and advised Kent that a
book-length manuscript had been submitted to seven
scholars for review and that perhaps the Appointments
Committee might want to postpone consideration of his
tenure pending replies from those scholars. Kent re-
quested, and Massie supplied, a list of the scholars to
whom the manuscript had been sent. The Appointments
Committee postponed voting on Massie.
54. On March 19, 1974, Massie wrote Van Solkema ob-
jecting to the manner in which he was being considered for
tenure. Massie also sent copies of this letter to Kneller and
Wolfe.
37a
55. On April 1, 1974, Massie discovered a letter from
Kent to Van Heijenoort of Brandeis University asking for
criticism of Massie’s manuscript. Massie protested to Kent
that Van Heijenoort was personally hostile to Massie.
Nonetheless, Kent sent the letter and the book-length
manuscript to Van Heijenoort.
56. Shortly thereafter, Kent wrote Massie promising
that Van Heijenoort’s review would not be counted if it
were negative.
57. On May 9, 1974, the Appointments Committee
voted to deny tenure to Massie.
58. In the Spring of 1974, Vice-President and Provost
Sherman Van Solkema resigned his position and returned
to the Department of Music as full Professor. During this
same Spring the College retained the services of Donald R.
Reich as Vice-President and Provost and as full Professor
in the Department of Political Science. He reported for
duty in September, 1974.
59. Reich, upon assuming the office of Vice-President
and Provost in September of 1974, refused to intervene in
the controversy between the piaintiffs and the defendant-
faculty in violation of his duties and obligations. In
November, 1974, Reich involved himself in the affairs of
the Department of Philosophy by authorizing funds for
evaluations of Massie’s and Rosenthal’s manuscripts. Fur-
ther, in his official capacity as Chairman of the College
Review Committee, he chaired the College review Com-
mittee when it acted upon the tenure candidacy of Massie
and the Certificate of Continuous Employment candidacy
of Korn.
38a
60. In late September and early October, 1974, Can-
navo, as the new Acting Chairman, conducted the con-
tractual procedures of evaluation concerning the impend-
ing reappointment decision of Jones, Rosenthal and Korn
with the same disregard for academic due process as had
Kent during his tenure as Interim Chairman.
61. On October 1, 1974, Cantavo called Korn, asking
him to choose between being considered for CCE or As-
sistant Professor. On October 2, 1974, Korn delivered a
letter to Cannavo requesting consideration for CCE if it
could be done without jeopardizing his chances for ap-
pointment as Assistant Professor. On October 2, 1974,
Korn was not recommended for the CCE by the Appoint-
ments Committee.
62. On October 2, 1974, the Appointments Committee
voted to deny reappointment to Jones and Rosenthal.
63. On November 27, 1974, Kneller notified Jones and
Rosenthal of his decision not to reappoint them and also
notified Massie and Korn of his decision to deny them
tenure and a CCE, respectively.
64. In December, 1974, each of the plaintiffs initiated a
Union grievance. The Step I hearings took place in March,
1975 and the decision denying their grievances was handed
down in May, 1975. Their last day of work pursuant to
their contracts was August 31, 1975.
f
65. In the Spring and Fall of 1975, Reich involved
himself in decisions and actions affecting the representa-
tion and professional status of the plaintiffs by assuming
responsibility for the College’s efforts to persuade the
American Philosophical Association to remove a state
censureship against the Department of Philosophy.
39a
COUNT ONE
The previous paragraphs of this amended complaint are
hereby incorporated by reference into Count One as if
they were fully set forth.
For on or about April, 1972, up to and including August
31, 1975, the defendants willfully, purposefully and in
pursuance of a conspiracy denied and deprived the plain-
tiffs of rights guaranteed to them by the Constitution and
laws of the United States in violation of Title 42, United
States Code, Section 1983.
It was part of said conspiracy that the defendant-faculty
would and did endeavor by means of misrepresentation,
intimidation and coercion to force the plaintiffs to vote
for Kent for Chairman of the Department in the triennial
election in May, 1973, and that the defendant-faculty
would and did take control of the Chairmanship and the
other four seats in the Appointments Committee of the
Department.
Once in control of the Chairmanship and the Appoint-
ments Committee, the defendant-faculty agreed, in fur-
therance of the conspiracy, that they would, and subse-
quently they did set into motion a plan to bring about the
removal of the plaintiffs from the College for: a) opposing
Kent as Chairman; b) making appeals to Kneller not to
confirm Kent as Chairman; c) challenging the legality of
Schwartz’ election to the Appointments Committee; and,
most importantly, d) asking that the Department be placed
in receivership, which would have nullified all actions
taken at the May, 1973 election.
It was further a part of said conspiracy that, at Kneller’s
direction, Van Solkema would and did meet with Jones
and Massie in May, 1973, and get them to speak frankly
about the state of the Department and the unsuitability of
Kent as Chairman. Van Solkema would and did promise
Jones and Massie that they would be protected from
40a
political reprisal, that outside committees would be ar-
ranged to review their reappointment and tenure candi-
dacies and that he would remain personally accessible.
Reich and Grossman were members of the aforemen-
tioned conspiracy that would and did insure that Jones
was not reappointed, that Massie was denied tenure and
that Korn was not appointed as a lecturer with a Cer-
tificate of Continuous Employment.
It was part of said conspiracy that the defendants would
and did insure that Jones was not reappointed, that Massie
was denied tenure and that Korn was not appointed as a
lecturer with a CCE.
In furtherance of said conspiracy, Wolfe, Van Sokema,
Reich and Kneller would and did refuse to exercise their
authority to prevent the defendant-faculty from carrying
out their unlawful plan to remove the plaintiffs from the
College even after they had necessary and sufficient
knowledge of the dishonest tactics being used by the
defendant-faculty.
In furtherance of said conspiracy, the defendants would
and did prejudice the committees outside the Department
that reviewed their actions, including the School of
Humanities Personnel and Budget Committee and the
College Review Committee.
OVERT ACTS
Among the means by which the defendants would and
did carry out the aforesaid conspiracy were the following:
1. In April, 1972, the defendant-faculty produced and
signed a petition to Kneller requesting a departmental elec-
tion for Acting Chairman.
2. In early 1973, the defendant-faculty would and did
cause Cannavo to solicit a letter from outside the College
4la
recommending Robert Schwartz, a candidate for a posi-
tion in the Department, and discrediting the other can-
didate for the position sought by Schwartz. Cannavo
would and did solicit such a letter in violation of the con-
fidentiality rules pertaining to the Appointments Commit-
tee.
3. In May, 1973, the defendant-faculty would and did
attempt illegally to have Schwartz replace Ezorsky on the
Appointments Committee before Schwartz was even a
member of the faculty.
4. On May 31, 1973, after Kneller ruled that Schwartz
could not legally be elected to replace Ezorsky, the defend-
ant faculty would and did cause a postponement until Fall
of 1973 of the vote for a replacement for Ezorsky.
5. Kent would and did falsely represent in October,
1973, that there was a budget crisis affecting four junior
lines in the Department.
6. Kent would and did cause Cannavo to be the
observer of Jones’ teaching and Cannavo would and did
report unfavorably. Cannavo would and did withhold his
report from Jones until October 3, 1973. On that date
Jones meets with Kent and Cannavo and is shown the
teaching observation report five minutes before the Ap-
pointments Committee is scheduled to consider his reap-
pointment. At this meeting Kent conducts annual evalua-
tion conference simultaneously with post-observation
teaching conference.
7. Kent would and did cause Taylor to be the observer
of Rosenthal’s teaching and Taylor would and did report
unfavorably. Taylor’s report and Koslow’s report on his
Spring, 1973 observation of Rosenthal’s teaching would
be and are withheld from Rosenthal until October 3, 1973,
42a
when she is scheduled to meet with Kent for her annual
evaluation conference.
8. In October, 1973, Kent would and did assign himself
to be the observer of Korn’s teaching and Kent would and
did report unfavorably.
9. Jones and Rosenthal object to their unfavorable
teaching observation reports and demand reasonable time
to prepare rebuttals. The October 3, 1973 meeting to con-
sider reappointments is postponed to October 5, 1973. On
October 3, 1973, after the postponement Kent would and
did request that Jones, Brown and Massie submit
manuscripts and work-in-progress at 1 P.M. October 5,
1973, while both Kent and Taylor would and did advise
Rosenthal not to submit such materials.
10. On October 4, 1973, Cannavo would and did con-
tact Jones and offers to change observation report or do it
over. After Jones declines and restates his intention to
rebut the report, Cannavo would and did cause the .
Original observation to be changed in such a way as to
delete the obviously prejudicial remarks.
11. Of the seven candidates for reappointment, Kent
would and did invite only Jones and Rosenthal to confront
Appointments Committee at its meeting on Friday, Oc-
tober 5, 1973.
12. At Appointments Committee meeting of October 5,
1973, Koslow would and did raise the question of whether
Rosenthal knew German. Kent would and did then leave
the meeting to discuss the issue with Rosenthal and upon
returning to the meeting, Kent would and did falsely repre-
sent to the Appointments Committee that Rosenthal did
not know German.
43a
13. In October, 1973, Kent would and did falsely repre-
sent to the Appointments Committee that Michael
Smithurst had resigned and was going back to England
and that, therefore, they should not consider him for reap-
pointment.
14. On October 5, 1973, Appointments Committee
would and did vote to reappoint Brown, Massie, Kent,
Korn, Wiseman and Caffentzis and would and did vote
not to reappoint Jones, Rosenthal and Smithurst.
15. After Jones learns of Appointments Committee’s
vote, Van Solkema would and did refuse to see Jones thus
breaking his promise of accessibility, would and did refuse
to see Sprague who wants to discuss the non-
reappointments and would and did tell Lean that he does
not want to hear about the Philosophy Department.
16. In November, 1973, Kneller would and did choose
Van Solkema to chair College Review Committee
(‘‘CRC’’), which would act as a De Novo committee con-
sidering whether Jones and Rosenthal are ‘‘with merit’’,
even though Van Solkema had expressed prior negative
judgments about Jones and Rosenthal.
17. Van Solkema would and did appoint Fife, a close
friend and ally of Cannavo, to chair the three-man sub-
committee which would investigate and report to the full
De Novo Committee on the merits of Jones and Rosen-
thal.
18. In November, 1973, Kent would and did take Fife
through the Jones and Rosenthal personnel iiles and
would and did make false representations regarding the
contents of these files.
19. In November, 1973, Kent would and did make false
44a
representations to Frey-Wouters (another member of the
three-man subcommittee) regarding Rosenthal’s
knowledge of German.
20. As Chairman of the De Novo Committee, Van
Solkema would and did write a strong chairman’s report
recommending in December, 1973, that Kneller uphold the
actions of the Appointments Committee recomending the
nonreappointment of Jones and Rosenthal.
21. On January 17, 1974, Kneller would and did recom-
mend to the Board of Higher Education the nonreappoint-
ment of Jones and Rosenthal.
22. In the Spring of 1974, Kent would and did request
Korn to decide whether he wanted to be considered for a
CCE or Assistant Professor without advising Korn that if
he chose not to be considered for a CCE in the Spring
Semester, he could not do so in the Fall. In doing so Kent
would and did refuse to advise Korn that it was possible
for him to apply for both the position of lecturer with
CCE and Assistant Professor.
23. In March, 1974, the Appointment Committee
would and did vote not to recommend Korn for a CCE
even though Korn informed Kent that he did not want to
be so considered.
24. In the Fall of 1974, Cannavo would and did request
Korn to decide whether he wanted to be considered for a
CCE or Assistant Professor knowing that Korn could not
be considered for a CCE in the Fall.
25. In March, 1974, Kent would and did select Taylor
as observer of Massie’s teaching and Taylro would and did
report unfavorably.
45a
26. On March 6, 1974, Kent would and did falsely state
to Massie that Taylor’s retraction of his negative teaching
evaluation of Massie would be appended to Taylor’s
Original evaluation.
27. On March 1, 1974, Kent would and did inform
Massie that written materials must be submitted by March
10th, superseding the previous deadline of March 16th. On
March 4, 1974, Kent would and did further inform Massie
that written materials must be submitted by March 6th
because the Appointments Committee had to meet on
March 7th because of a ‘‘conflict in schedules.’’
28. On March 7, 1974, the Appointments Committee
would and did postpone consideration of Massie’s tenure
application after learning that Massie had sent a book-
length manuscript to seven scholars for review.
29. After the receipt of favorable reviews of Massie’s
manuscript, Kent would and did falsely represent to
massie that the ‘‘Administration’’ has ruled that outside
scholars’ reviews (‘‘tenure letters’’) of Massie’s
manuscript were not acceptable as material for considera-
tion by college committees.
30. Wolfe would and did call Massie at home on March
24, 1974, at 2 A.M., denying that she had made any such
ruling against ‘‘tenure letters’’ with regard to manuscripts.
31. In the Spring, 1973, Ezorsky would and did suggest
to a colleague that one sure way to deny Massie tenure
would be to request Van Heijenoort to write a letter un-
favorable to Massie.
32. In April, 1974, Kent would and did call Van Hei-
jenoort in Mexico requesting him to review Massie’s
manuscript.
46a
33. In April, 1974, Kent would and did falsely promise
to Massie that if the Van Heijenoort review were negative,
the Appointments Committee would not count it.
34. In April, 1974, Kent would and did send copies of
Massie’s manuscript to a number of outside scholars
without Massie’s permission, with a letter of transmittal
soliciting negative criticism.
35. In April, 1974, Massie was interviewed by CRC
subcommittee consisting of Fife and one other CRC
member. Cannavo would and did falsely interpret
Massie’s file for Fife.
36. In April, 1974, Van Solkema would and did direct
Massie not to discuss before the CRC the situation in the
department since he had already briefed them.
37. On May 9, 1974, Appointments Committee would
and did vote to deny tenure to Massie.
38. In June, 1974, after Kneller reappoints Jones and
Rosenthal and removes Kent as Interim Chairman, Wolfe
would and did block the appointment of Brown as Acting
Chairman and would and did cause Kneller to appoint
Cannavo as Acting Chairman of the Department.
39. In September, 1974, Appointments Committee
would and did write a letter to the BHE objecting to
Kneller’s interference with departmental autonomy.
40. In October, 1974, Cannavo would and did cause
Koslow to be the observer of Jones’ teaching and Koslow
would and did report unfavorably.
41. Cannavo would and did cause Edwards to be the
observer of Korn’s teaching and Edwards would and did
report unfavorably.
47a
42. Cannavo would and did attempt to have Edwards,
then Ezorsky, then Koslow observe Rosenthal’s teaching,
when Edwards disqualified himself and none of the others
was acceptable to Rosenthal, Cannavo would and did
cause Taylor to observe Rosenthal’s teaching.
43. In October, 1974, the Appointments Committee
would and did vote not to reappoint Rosenthal prior to the
observation of her teaching, even though Kneller had
stated in reappointing her on June 16, 1974, that ‘‘further
academic evaluation is warranted.”’
44. On October 2, 1974, Cannavo would and did
schedule Jones’ teaching observation conftience thirty
minutes prior to when he was to be considered for reap-
pointment. The Appointments Committee would and did
vote to deny Jones reappointment.
45. In October, 1974, Cannavo would and did cause
Korn’s teaching observation report to be withheld from
him until after the Appointments Committee and the
School Personnel and Budget Committee had acted un-
favorably on his candidacy.
46. In October, 1974, Cannavo would and did attempt
to prejudice the College Review Committee by sending to
each member of the College Review Committee a copy of
a ‘‘privileged’’ letter from Jones and Rosenthal to their at-
torney.
47. In the Fall of 1974, Cannavo and Ezorsky would
and did attempt to cause the Union not to prosecute
grievances on behalf of the plaintiffs and other members
of the Department.
48. On November 27, 1974, Kneller would and did deny
reappointment to Jones and Rosenthal, would and did
48a
deny a Certificate of Continuous Employment to Korn,
and would and did deny tenure to Massie.
49. On May 27, 1975, Kneller would and did deny the
Step I grievance of Jones, Korn, Massie and Rosenthal.
50. Among the means by which Reich and Grossman
participated in the aforesaid conspiracy were the follow-
ing:
A. While Vice-President and Provost, Reich was made
fully aware of the existing situation in the Department of
Philosophy but took no action, made no attempt to in-
vestigate or correct the situation.
B. Letter from Massie and Jones, May 21, 1975, re-
garding the critical report on the operations of the
Philosophy program at the Graduate Center and its
relevance to the Philosophy Department at the College.
C. Letters (2) from Sprague to Reich, Fall of 1974, re-
garding the political situation in the Philosophy Depart-
ment and stating the case for Jones, Massie and Korn.
D. Letter from Korn to Reich, Fall of 1974, objecting
to the Appointment’s Committee handling of Korn’s can-
didacy for a Certificate of continuous Employment.
E. Letter from Jones to Kneller (forwarded by Kneller
to. Reich for action) December 17, 1974, raising funda-
mental problems with the procedures on joint appoint-
ments.
51. Reich chaired the College Review Committee at the
time when the Jean Roane letter was sent to the Commit-
tee members by Cannavo during the week of October 7,
1974. Reich would and did refuse to strike consideration
of that letter from the record.
49a
52. Reich chaired the College Review Committee at the
time when Paul Edwards, acting for the Appointments
Committee, transmitted in November, 1974, the so-called
“Second Van Heijenoort letter’ to the College Review
Committee. Reich would and did refuse to strike con-
sideration of that letter from the record.
53. Reich authorized the spending of some $400.00 to
obtain evaluations of Massie’s manuscripts in November,
1974. Reich would and did authorize the spending of these
funds after Massie had been denied tenure, and before he
filed a grievance.
54. Reich would and did direct the response of the Col-
lege to the censureship of the Philosophy Department and
in so doing did misrepresent the plaintiffs’ situation at the
College.
55. Grossman, in his role as hearing officer for the Col-
lege, reached decisions against the plaintiffs without con-
ducting an investigation into the charges other than asking
the the defendant-faculty to respond, and in his role as
hearing officer for the College, would and did fail to set
up impartial investigative procedures.
56. Grossman, in his role as a hearing officer for the
College, would and did render a decision against Korn
which included facts known by him to be false.
57. Grossman, in his role as representative of the Col-
lege at Step II grievance level, did on May 2, 1974
maliciously induce an agreement between the College and
Jones and Rosenthal which he knew would cause the
failure of both to be reappointed in the future.
58. Grossman, at Step II grievance level, did on May 2,
1974 obtain Union Agreement to return Jones and Rosen-
thal to Step I, by deceiving the Union into believing that
50a
the President wanted Jones and Rosenthal reappointed.
At the same time, he obtained agreement from the Ap-
pointments Committee to return Jones and Rosenthal to
Step I on his representation that failure to do so would
result in either Jones or Rosenthal being reappointed at
Step II.
59. Grossman, as Legal Assistant to the President, did
aid and abet Wolfe in the preparation of her letter of
March 30, 1975 to the American Philosophical Associa-
tion which misrepresented the plaintiffs’ situation at the
College.
60. Grossman conspired with the defendant-faculty to
insure that the denial of tenure to Massie would not be
reversed by the Appellate Grievance Procedures by caus-
ing negative reviews of Massie’s manuscript to be made
after the record was established before the evaluating com-
mittees and before review by the grievance procedures.
COUNT TWO
The previous paragraphs of this amended complaint are
hereby incorporated into Count Two as if they were fully
set forth.
From May, 1972, through August, 1975, the defendants
took certain actions the natural consequence of which
denied and deprived the plaintiffs of rights guaranteed to
them by the Constitution and Laws of the United States in
violation of Title 42, United States Code, Section 1983.
COUNT THREE
The previous paragraphs of this amended complaint are
hereby incorporated into Count Three as if they were fully
set forth.
From on or about April, 1972, up to and including
August 31, 1975, the defendants willfully, purposefully
Sla
and in pursuance of a conspiracy deprived the plaintiffs of
the equal protection of the laws and the privileges and im-
munities secured to a citizen by the Constitution and Laws
of the United States, in violation of Title 42 United States
Code, Section 1985 (3).
Among the means by which the defendants would and
did carry out the aforesaid conspiracy are those Overt Acts
listed under Count One.
COUNT FOUR
The previous paragraphs of this amended complaint are
hereby incorporated into Count Four as if they were fully
set forth.
Each of the plaintiffs had a valid contract with the Col-
lege for the Academic year ending August 31, 1974, and
the defendants knew that these contracts existed.
Some time after May, 1973, and without reasonable
justification, the defendants deliberately set into motion a
series of events the natural consequence of which was 1) to
interfere with the plaintiffs obtaining the benefits of their
contracts and 2) to cause the Board of Higher Education
to refuse (a) to renew the contracts of Jones and Korn and
(b) to grant tenure to Massie, all of which substan-
tially damaged the plaintiffs financially and profession-
ally.
RELIEF
WHEREFORE, plaintiffs respectively request judgment
against the defendants and each of them, as follows:
A) Declaring and confirming that the defendants’ acts
complained of herein are illegal and unconstitutional;
B) Declaring and confirming that the plaintiffs have
been denied the equal protection of the law;
52a
C) Declaring and confirming that the privileges and im-
munities of the plaintiffs have been abridged;
D) Declaring and confirming that the plaintiffs’ right to
free speech has been denied and deprived;
E) Delaring and confirming that the defendants inten-
tionally interfered with the plaintiffs’ contracts with the
College;
F) Ordering and compelling the defendants to make
whole the plaintiffs herein, including, but not limited to,
providing reinstatement, tenure, appropriate back pay and
financial compensation in an amount to be proved at trial,
and providing other affirmative relief necessary to insure
that the defendants never again infringe upon, and deny
and deprive these plaintiffs from exercising their constitu-
tionally protected right to free speech;
G) Awarding the plaintiffs, and each of them, compen-
satory and punitive damages from the defendants and
each of them;
H) Awarding the plaintiffs and each of them from the
defendants, and each of them, court costs and reasonable
attorneys’ fees.
I) Such other and further relief as to the Court may ap-
pear to be just and equitable.
Dated: New York, New York
ALPERT & O’ROURKE
By: MORTON ALPERT, Member of the Firm
Attorneys for Plaintiffs
Office & P. O. Address
217 Broadway
New York, New York 10007
Phone: (212) 349-2000
53a
APPENDIX D.
Relevant Parts Of Agreement Between The Professional
Staff Congress/CUNY And The Board Of Higher
Education Of The City Of New York
PREAMBLE
AGREEMENT entered into this day of
September, 1973, by and between the BOARD OF HIGHER
EDUCATION OF THE CITY OF NEW YORK (hereinafter
referred to as the ‘‘Board’’, and the PROFESSIOSNAL
STAFF CONGRESS /CUNY (hereinafter referred to as the
**PSC’’),
WITNESSETH:
WHEREAS, the Board has had a long-standing policy
that there exists an academic community of interest ~ithin
the City University of New York (‘“‘CUNY’’) and that such
community of interest includes the Instructional Staff,
and
WHEREAS, the Board has been recognized as a ‘‘Public
Employer’’ consistent with the terms and provisions of the
Public Employees’ Fair Employment Act of the State of
New York, and
WHEREAS, the Board elected to come under the rules of
procedure and regulations of the New York State Public
Employment Relations Board, and
WHEREAS, a secret ballot election was conducted by the
New York State Public Employment Relations Board and
WHEREAS, the members of the Instructional Staff in the
unit hereinafter set forth freely selected the PSC as their
54a
‘representative for the purposes of collective negotiations
and the settlement of grievances, and
WHEREAS, the Board and the PSC subscribe to the
following concepts of Academic Freedom:
(a) The teacher is entitled to full freedom in research
and in the publication of the results, subject to the ade-
quate performance of his other academic duties; but
research for pecuniary return should be based upon an
understanding with the authorities of the institution.
(b) The teacher is entitled to freedom in the classroom
in discussing his subject, but he should be careful not to
introduce into his teaching controversial matter which has
no relation to his subject.
(c) The college or university teacher is a citizen, a
member of a learned profession, and an officer of an
educational institution. When he speaks or writes as a
citizen, he should be free from institutional censorship or
discipline, but his special position in the community im-
poses special obligations. As a man of learning and an
educational officer, he should remember that the public
may judge his profession and his institution by his ut-
terances. Hence, he should at all times be accurate, should
exercise appropriate restraint, should show respect for the
opinion of others, and should make every effort to in-
dicate that he is not an institutional spokesman.
(d) The above principles are recognizes as applicable to
non-teaching members of the Instructional Staff, in-
cluding counselors, to the extent their duties include
research and publication of results, the selection of library
or other educational materials or the formation of
academic policy.
NOw, THEREFORE, it is agreed:
ARTICLE 1
RECOGNITION
1.1 The PSC is recognized by the Board of Higher
55a
Education for the effective period of this Agreement as the
exclusive collective negotiating representative under the
Public Employees’ Fair Employment Act for there persons
in the following titles: ,
Professor
Associate Professor
Assistant Professor
Instructor
ARTICLE 2
BOARD—PSC RELATIONS
2.1 The Board and the PSC agree to maintain the
academic character of the University as an institution of
higher education.
2.2 The entire Agreement between the parties consists
of the terms herein stated, and this Agreement terminates
all prior Agreements and understandings. All Bylaws,
policies and resolutions of the Board, and all Governance
plans an‘4 practices of the Colleges and of the depart-
ments, as currently in effect, or as the same may be
hereafter adopted, supplemented or amended, shall be
subject to the said stated terms of this Agreement.
2.3 Nothing contained in this Agreement shall be con-
strued to diminish the rights granted under the Bylaws of
the Board to the entities and bodies within the internal
structure of CUNY so long as such rights are not in con-
flict with a stated term of this Agreement.
ARTICLE 18
PROFESSIONAL EVALUATION
18.1 The evaluation of the professional activities of all
employees in a public institution of higher education is
essential to the maintenance of academic and professional
standards of excellence. The purpose of professional
evaluations shall be to encourage the improvement of in-
dividual professional performance and to provide a basis
56a
for decisions on reappointment, tenure and promotions.
An evaluation of professional activities shall be based on
total professional performance. Written evaluations shall
be on file for all employees.
18.2 (a) Evaluation of a member of the teaching faculty
shall be based on total academic performance, with
especial attention to teaching effectiveness, including, but
not limited to, such elements as
Classroom instruction and related activities;
Administrative assignments;
Research;*
Scholarly writing;
Departmental, college and university assignments;
Student guidance;
Course and curricula development;
Creative work“ in individual’s discipline;
. Public and professional activities in field of spe-
cialty.
*It is understood that Lecturers (full-time) shall not be
required to have a research commitment.
(b) Teaching observation, as described below, is one
factor in total evaluation of academic performance of the
teaching staff.
1. At least once during each academic semester, non-
tenured and non-certified members of the teaching staff
shall be observed for a full classroom period. One obser-
vation shall take place during any scheduled class during
the first ten weeks of a semester. The employee shall be
given no less than 24 hours of prior notice of observation.
Tenured and certificated members of the teaching staff
may be observed once each semester.
2. (a) Each department P & B committee shall
designate a panel, the size to be specified by the Chairman,
of department observers (which shall include members of
the P & B committee). The department chairman shall
schedule the members of this panel to conduct observa-
tions as necessary. Each observer shall submit, through
Ce SPY SYS}
57a
the department chairman, a written observation report to
the department P & B committee within one week of the
observation. These observation reports shall be considered
by the committee in its total evaluation of the employee.
(b) The department chairman shall schedule a post-
observation conference for the employee within two weeks
after receipt of the written observation report. The post-
observation conference shall include the employee, the
observer and either a member of the P & B committee or a
member of the department with the rank of tenured
Associate Professor or tenured Professor to be assigned by
the chairman.
(c) Following the post-observation conference, the
assigned P & B representative or the assigned senior
faculty member shall prepare a record of the discussion in
memorandum form for submission to the chairman. The
original conference memorandum shall be placed in the
employee’s personal file. The employee may have a copy
of this document provided a signed receipt is tendered.
The observation report shall be placed in the personal file.
(d) In the event that the observation or post-
observation conference is not held within the time
stipulated herein, the employee shall, within 10 working
days thereafter, file an ‘‘observation/conference request
form’’ with the chairman. A copy of the form shall be sent
to the appropriate dean and the Office of the President.
Failure of the employee to file within the stipulated time
the ‘‘observation conference request form’’ shall bar the
employee from subsequent complaint regarding such
failure. Upon the receipt of the request form the college
shall cause appropriate remedial action to be taken, in-
cluding, if necessary, scheduling of an observation and/or
observation conference by the Dean or President or their
designee.
18.3 Annual Evaluations:
(a) Members of the teaching faculty: At least once each
year, each employee other than tenured full professors
58a
shall have an evaluation conference with the department
chairman or a member of the departmental P & B commit-
tee to be assigned by the Chairman. Tenured full pro-
fessors may be evaluated. At the conference, the
employee’s total academic performance and professional
progress for that year and cumulatively to date shall be
reviewed. Following this conference, the chairman or the
assigned member of the P & B shall prepare a record of the
discussion in memorandum form for inclusion in the
employee’s personal file. Within 10 working days after the
conference, a copy of the memorandum shall be given to
the employee. Where the overall evaluation is unsatisfac-
tory, the memorandum shall so state. The employee in
such case shall have the right to endorse on the memoran-
dum a request to appear in person before the department
P & B.
ARTICLE 20
COMPLAINT, GRIEVANCE AND ARBITRATION
20.1 Intent: The Board and the PSC agree to use their
best efforts to encourage the informal and prompt settle-
ment of complaints and grievances which may arise be-
tween the PSC, the employees, and the Board. The orderly
process hereinafter set forth will be the sole method used
for the resolution of all complaints and grievances.
20.2 Definitions: A complaint is an informal claim by
an employee in the bargaining unit, or by the PSC of im-
proper, unfair, arbitrary or discriminatory treatment.
A complaint may, but need not, constitute a grievance.
Complaints shall be processed through the informal pro-
cedure herein set forth.
A grievance is an allegation by an iii or the PSC
that there has been:
(1) a breach, misinterpretation or improper application
of a term of this Agreement; or
(2) an arbitrary or discriminatory application of, or a
59a
failure to act pursuant to the Bylaws and written policies
of the Board related to the terms and conditions of
employment.
20.3 Informal Procedure for Handling Complaints:
Any employee in the bargaining unit may present and
discuss his complaint either with or without a represent-
ative of the PSC. Similarly, a representative of the PSC
may present and discuss a complaint on behalf of any
employee or group of employees with the head of the
department involved and shall be entirely informal. Any
settlement, withdrawal or disposition of a complaint at
this informal stage shall not constitute a binding precedent
in the settlement of similar complaints or grievances.
20.4 Formal Procedure for Handling Grievances:
Grievances may be filed by an employee in the bargaining
unit on his behalf, or by the PSC on its behalf, or on
behalf of any employee or group of employees in the
bargaining unit. Grievances involving employees in more
than one college of the University may be filed by the PSC
initially at Step 2 of the grievance procedure.
A grievance must be filed by an employee or the PSC
within thirty (30) days after the PSC or the employee on
whose behalf the grievance is filed became aware of the ac-
tion complained of, except that grievances concerning
failure to reappoint shall be filed within twenty (20) work-
ing days of the scheduled date for notice of reappointment
or non-reappointment. Any grievance or informal com-
plaint not processed in accordance with the time limits
specified herein shall be deemed waived by the grievant.
A grievance must be stated in writirg setting forth the
basis therefor with reasonable particularity, including a
designation of the Article of the Agreement, the Section of
the Bylaws, or the written policy of the Board relied upon,
and the remedy requested.
Step 1. Grievances shall be filed with the President of
the College affected or his designee. The President or his
designee shall, within fourteen (14) calendar days of the
60a
receipt of the grievance, meet with the grievant and a
representative of the PSC for the purpose of discussing the
grievance. The President or his designee shall, within four-
teen (14) calendar days after the grievance meeting, issue
his decision with reasons in writing to the grievant and the
PSC.
Step 2. If the grievance has not been settled at Step 1,
then within seven (7) calendar days after receipt of the
written decision of the President of the College or his
designee, or the expiration of the time limits for making
such Cecision, the grievant or the PSC may submit the
grievance in writing to the Chancellor or his designee,
‘together with a copy of the decision of the President of the
College affected, or his designee. The Chancellor or his
designee shall, within fourteen (14) calendar days of the
receipt of the grievance meet with the grievant and a
representative of the PSC for the purpose of discussing the
grievance. The Chancellor or his designee shall, within
fourteen (14) calendar days after the grievance meeting,
mail his disposition with reasons in writing to the grievant
and the PSC by certified mail, return receipt requested.
Step 3. If the grievance has not earlier been settled, or if
the Chancellor’s disposition has not been issued within the
time limits above set forth, the person or persons who sub.
mitted the grievance at Step 2 may appeal the Step 2 deci-
sion to Arbitration by serving written notice to that effect
by certified mail, return receipt requested, directed to the
Chancellor or his designee and to the American Arbitra-
tion Association within fourteen (14) calendar days after
mailing of the Step 2 decision, or the last date for the
mailing thereof. Arbitration shall be conducted in accor-
dance with the rules of the American Arbitration Associa-
tion and the laws of the State of New York, subject to the
provisions of paragraph ‘‘20.5’’ hereof.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.