Petition — Jones v. Kneller

Supreme Court brief1980

Ask Donna

What actually matters in this document.

Text

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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.