Amicus Curiae Brief — Zagano v. Fordham University

No. 90-319

—

Supreme Court, US.

bee jg ge 2

SEP 18 1990

JOSEPH F. SPANPOL, UR,

In The

_

Supreme Court of the United States

October Term, 1990

7X

7:

PHYLLIS ZAGANO

-against-

/

Petitioner,

FORDHAM UNIVERSITY and GEORGE N. GORDON,

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7

Respondents.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Secend Circuit

4

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BRIEF OF FREE SPEECH ADVOCATES AND

PRESSWATCH AS AMICI CURIAE IN SUPPORT

OF THE PETITION FOR A WRIT OF CERTIORARI

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» 4

CHARLES E. RIcE

Counsel of Record for

Free Speech Advocates and

Presswatch, Amici Curiae

Notre Dame Law School

Notre Dame, Indiana 46556

(219) 239-5667

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

BEST AVAILABLE COPY

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1990

PHYLLIS ZAGANO,

Petitioner, Docket No. 90-319

MOTION FOR LEAVE

TO FILE BRIEF

AMICUS CURIAE

Vv.

FORDHAM UNIVERSITY

and GEORGE N. GORDON,

ee ee ee ee ee ee ee ee

Respondents.

Free Speech Advocates, of New Hope,

Kentucky, and Presswatch, of Needhan,

Massachusetts, respectfully move for

leave to file the annexed brief as amici

curiae in this case. The consent of the

attorney for the petitioner has been

obtained. The consent of the attorney

for the respondents was requested but

refused.

The interest of movants in this case

arises from their special concern for the

preservation of the right of parties

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involved in disputes to use their right

of speech to enlist others in aid of

their cause. In its decision, the United

States District Court emphasized what it

called "Dr. Zagano's various highly in-

flammatory letters to Fordham alumnae and

friends." Petition for Writ of

Certiorari, 9a. Those letters were solic-

itations of verbal and moral support by

or on behalf of the impecunious petition-

er who had been arbitrarily terminated

from her teaching position and who found

herself without financial resources to

defend herself against the university and

its law firm. Movants are engaged in the

defense, in the public forum and in

litigation, of precisely the sort of

financially overmatched free speech liti-

gants typified by petitioner. Movants

deplore the district court's use of peti-

tioner's efforts, and the efforts of

3 «

others on her behalf, to raise money to

finance her defense of her career as a

factor in determining the outcome of the

litigation in which she engaged. If this

precedent is allowed to endure, the de-

fense of free speech and related rights

in litigation will become even more clear-

ly an enterprise for the wealthy and

well-funded than it is today.

In addition, this case involves a

federal court's interference with state

administrative proceedings. Movants are

concerned with the preservation of such

avenues in cases involving free speech

and related rights. Here, especially,

petitioner's (and others') exercise of

- 4-

free speech rights resulted in an

improper injunction of State proceedings.

Dated: September 14, 1990

Respectfully submitted,

Charles E. Rice

Counsel for Free Speech

Advocates and Presswatch,

Amici Curiae

Notre Dame Law School

Notre Dame, Indiana 46556

(219) 239-5667

‘tine

Page

INTEREST OF AMICI CURIAE ...... 2

STATEMENT OF THE CASE .....e-.-e. 4

SUMMARY OF THE ARGUMENT ...... 7

pS rt |: 5 ne ae ee oe ee ee oe ee fae 2 ee

I. Certiorari Should Be Granted

Because the Standards For

Denying Voluntary Dismissal

and Enjoining Ongoing State

Proceedings Implicit in the

Decisions Below Impermissibly

Abridge Litigants' First

Amendment Rights ........ 8

CONCLUSION . . «© «© «© «© © © © «© «© « #f

APPENDIX .. +. ++«e-e«-+-+«« « « « Aa

SUPREME COURT OF

THE UNITED STATES

No. 90-319

October Term 1990

PHYLLIS ZAGANO,

Petitioner,

-against-

FORDHAM UNIVERSITY and

GEORGE N. GORDON,

Respondents.

BRIEF OF FREE SPEECH ADVOCATES AND

PRESSWATCH AS AMICI CURIAE IN SUPPORT

OF THE PETITION FOR A WRIT OF

CERTIORARI

Pursuant to Rule 37.2 of the Rules

of this Court, Free Speech Advocates

and Presswatch submit this brief as

amici curiae in support of the petition

for a writ of certiorari to the United

States Court of Appeals for the Second

Circuit.

INTEREST OF AMICI CURIAE

Free Speech Advocates is a legal de-

fense group dedicated to protecting, pre-

serving and defending the right of public

witness and speech on interests of public

concern.

Presswatch publishes a fortnightly

newsletter that advocates balanced treat-

ment in the media of public issues. Press-

watch is also concerned in this case of

the treatment of a university professor,

who, it appears, was unlawfully discrimi-

nated against on the basis of her involve-

ment in "Catholic matters and affairs."

Free Speech Advocates and Presswatch

each have a special interest in the safe-

guarding of the First Amendment rights of

those persons who, as litigants, exercise

qaTeer -

such rights in advocating their causes and

enlisting others in support of such

causes. Such exercise should not be per-

mitted to factor into a court's determina-

tion either of the merits of a litigant's

case or of a litigant's procedural

rights. In this case, it is the view of

these amici that the courts below impermis-

sibly abridged petitioner's First Amend-

ment rights, in effect penalizing petition-

er for the exercise of such rights and

chilling the exercise of such rights by

others. Specifically, the decisions of

the courts below in this case, as grounds

for dismissal of the petitioner's claims

with prejudice, cited various communica-

tions by petitioner (and others) in sup-

port of her cause as a basis to deny her

the opportunity to present her claims. It

is submitted that the use of such constitu-

tionally protected communications as a

significant, if not deciding, factor to

deny petitioner any forum to determine her

claims was an impermissible encroachment

on petitioner's First Amendment rights, as

well as a denial of due process of law.

STATEMENT OF THE CASE

In this case, petitioner, Phyllis

Zagano, requested that the district court,

where she had filed a Title VII action,

dismiss her case without prejudice so that

ongoing, prior proceedings brought by and

before a State agency, the New York State

Division of Human Rights, could be

completed. These proceedings, in which

the State was the complainant, arose from

the same acts of discrimination and retali-

ation as underlied petitioner's federal

action. The State proceeding -- which had

been commenced first, in which probable

cause had been found that discriminatory

and retaliatory acts took place, and in

which practically all of the State's case

had been heard -- entailed a significantly

broader spectrum of remedial action (not

limited to private relief) than the feder-

al action. Rather than permitting the

State proceedings to be completed, the

district court not only denied petition-

er's motion for voluntary dismissal, but

enjoined altogether the State proceeding,

depriving Prof. Zagano (and the State) of

any forum to determine serious and merito-

rious claims of discriminatory and retalia-

tory acts by Fordham University and its

we ew

department chairman, George N. Gordon.

What is of greatest concern to these

amici is that a significant, if not

deciding, factor in the determinations of

the district court and the court of ap-

0 © ee

peals was Prof. Zagano's communications in

support of her cause directed at persons

whose support, financial and otherwise,

Prof. Zagano sought to engage, and communi-

cations between and among third parties in

support of Prof. Zagano.

SUMMARY OF ARGUMENT

This Court should grant the petition

for a writ of certiorari because the deci-

sion of the district court, as affirmed by

the Second Circuit, impermissibly abridges

litigants' First Amendment rights, inas-

much as a Significant, if not deciding,

factor in denying petitioner's motion for

voluntary dismissal, as well as dismissal

with prejudice and injunction of indepen-

dent State proceedings, was the exercise

of petitioners’ (and others') free speech

rights.

ARGUMENT

I. Certiorari Should Be Granted Because

the Standards For Denying Voluntary

Dismissal and Enjoining Ongoing State

Proceedings Implicit in the Decisions

Below Impermissibly Abridge Litigants'

First Amendment Rights.

While purporting to invoke certain

"factors" for voluntary dismissal set

forth in a Magistrate's decision from the

Eastern District of New York, + the

district court primarily relied on its

negative views of certain letters that

Prof. Zagano had written over time to

various persons seeking support for her

cause, ¢ and even more, on letters by

lposteve Ltd. v. Marauszwki, 110

F.R.D. 257 (E.D.N.Y. 1986) (Scheindlin,

Mag.).

2prof. Zagano's letters, modest in

number, were written to selected alumni

Fordham University and others with

interest in the issues involved in the

case, to raise funds for legal expenses

of

in

third parties commenting unfavorably on

the public position Fordham University had

taken in the controversy. Referring to

such third party letters (A 1-11),° the

district court stated "as I skimmed

through the various letters that [Fordham]

President O'Hare has annexed to his

affidavit, you certainly get a strong

flavor, arguably, cf vexatiousness." (A

23)

Having introduced this notion, the

district court then unfairly leapt to the

conclusion that "the lawsuit has certainly

support of her cause and to gather moral

support. The letters, while written with

zeal, were factually accurate and not

inflammatory.

3parenthetical references preceded

by "A" are to the Appendix to this brief,

while parenthetical references followed by

"a" are to the appendix to the petition.

All matters in the Appendix hereto are

from the joint appendix before the Court

of Appeals for the Second Circuit.

- 10 -

turned into an instrument of vexation in

the hands of the plaintiff with these

letters that are being written to alumni

. . - all of it harassing and almost an

extortive kind of measure from their face

o « «” (285 Fae record of the case is

quite clear, however, that the district

court was not basing this view on letters

written by Prof. Zagano, but rather, let-

ters written by third parties.

In particular, in support of its

conclusions, the district court cited a

letter by someone affiliated a non-profit

family-life organization (The Couple to

Couple League International Inc.) to a

Richard J. Bennett (apparently a former

trustee of Fordham University) expressing

the author's views on the Zagano

controversy. (A 15-17) The district

court's tersely stated view of this

(third-party) letter was "That stinks." (A

- l1l-

28) Then, the court concentrated on anoth-

er letter offered by respondents' counsel

from a Rev. Patrick A. Heelan, S.J. toa

fellow Jesuit priest, Rev. Vincent Potter,

S.J., which quite bluntly expresses

Heelan's personal views on the

controversy. (A 35-36) Though this letter

was written by a non-party, the court

became highly exercised over it, attribut-

ing it to Prof. Zagano: "He [the author]

is obviously not writing this having made

it up out of thin air. This is not rain

that fell on his head, somebody gave him

this information." (A 29)

The district court used these letters

against Prof. Zagano as a basis to dismiss

her action. Indeed, in this regard, the

court stated: "[(T)his is relevant, it

seems to me, if credited, on the issue of

whether or not Dr. Zagano has a right at

this point to drop this suit and walk away

- 12 -

from it without cost to her but a terrible

cost to you [respondents], and it is cer-

tainly some evidence -- Voltaire, vexa-

tious as he might have wanted to have

been, would have recognized that this [the

Heelan letter] is defamatory, and there-

fore not privileged by the First

Amendment." (A 30) Further, the court

made repeated, and indiscriminate, refer-

ence to the various letters in connection

with its decision: "Now, these letters to

the trustees, to the alumni, to the

president, 4 to Mr. Heelan asking him to

write further> -- .. .I1 assume there

4there were no letters by Prof.

Zagano to the president or trustees of

Fordham (or to any faculty, as the court

elsewhere stated in error (25a)) regarding

the controversy.

“There were no letters by Prof.

Zagano to "Mr. [sic] Heelan asking him to

write further." This was conjecture by

the district court.

- 13-

was an accompanying letter saying,

"Patrick [Heelan], write me a letter, do

me a favor.' [The letter] creates a cir-

cumstantial prima facie case that she is

using the publicity of this to further her

goals in what we all could conclude, if we

get down to Heelan's letter, is a wholly

impermissible way. You don't go around

calling the adversary lawyer a liar and

this and that and the other."© (A 32;

see also 3a ("I read these letters to the

university about how 'I am going to give

money to her defense fund and therefore

cut it back from my usual gift to the

University', based upon her very provoca-

tive mailings, even if justified, to alun-

ni and trustees," referring to yet another

SEvidently Fr. Heelan expressed his

doubts concerning the credibility of one

of Fordham's attorneys as to the cause of

delay in the State proceedings.

- 14 -

third party letter.) )

It is offensive to any First Amendment

consideration that a court may use communi-

cations by third parties, let alone commu-

nications by a party, as the basis to

label a litigant as "vexatious" and there-

by deny voluntary dismissal and dismiss

that litigant's case with prejudice, with-

out any trial, and enjoin independent

State proceedings.

The district court's adverse reaction

to the various letters sympathetic to

Prof. Zagano's cause was also in apparent

disregard of the context in which those

letters were written. In its glancing

review, the district court failed to take

into account the fact that the Zagano

non-reappointment, Prof. Gordon's notori-

ous Screw publications, and Fordham's

publicly-proclaimed defense of "a tenured

faculty member's decision to publish in

- 15 =-

Screw" as "an exercise of academic

freedom" had long since been the subject

of emotional intra-Fordham and public

debate and controversy. On its part,

Fordham never shied from espousing its own

position through the media. Indeed it

appears that any letter-writing was precip-

itated by Fordham's president writing

early on to National Review about the

controversy. J.A. O'Hare, S.J., “Fordham

Fracas II", National Review, Sept. 20,

1985, at 9 (letter to editor asserting

Prof. Zagano's case to be without founda-

tion and stating that a tenured faculty

member's decision to publish in Screw

"could and would be defended as an exer-

- 16-

cise of academic freedom.") (A 1-11)?

(Prof. Zagano was responding precisely to

7upr. Phyllis Zagano's Quarrel with

Fordham University," (statement issued by

the Office of the President of Fordham

defending the merits of its position)

(Sept. 1987) (A 18-22); see also, e.g., F.

Canavan, S.J., “Fordham Fracas", National

Review, Aug. 23, 1985, at 6 (letter to

editor by Fordham political science

professor); J.A. O'Hare, S.J., "Commentary

on Fordham 'reckless'", Waterbury

Republican, Sept. 25, 1985 (letter to

editor by Fordham president regarding

Zagano controversy); J. Frawley, At

°

Prof, National Catholic Register, Nov. 25,

1985, at 1, 12, 13 (statements by Fordham

political science professor (F. Canavan,

S.J.), chairman of Communications

Department (T. Curran), vice president for

academic affairs (R. Doyle, S.J.),

communications professors (R. Dengler,

S.J., G. Gordon and J. Phelan) and

19esident (J.A. O'Hare, S.J.)); E.

Maillet, Fordham Case Pits Sleaze Against

Scholarship: Academic Freedom But for

Whom?, Eastern Okiahoma Catholic, Oct. 26,

1986, at 5, 18 (statement by Fordham

president (J.A. O'Hare, S.J.)) and The Ram

(Fordham publication), Apr. 18, 1985, at

1, 7, May 2, 1985, at 1, March 20, 1986,

at 1 (statements by Fordham's president,

executive vice president, defendant

Gordon, sociology professor and Fordham's

attorney).

-17<-

that issue in the letters that the dis-

trict court labelled "vexatious.")

It is indeed ironic that the district

court chose to castigate one party for

supposed participation in a sometimes-

heated public controversy, but disregarded

the fact that the other party (Fordham)

had turned the controversy into a "media

event" by repeated public airing of its

position. As repugnant as the use of the

exercise of free speech is as a factor

determining a litigant's right to volun-

tary dismissal, it is even more repugnant

when the other side to the controversy is

somehow regarded as exempt from similar

scrutiny, as appears to have been the case

here. It is precisely the point of the

First Amendment to protect this type of

speech, so that controversial speech will

not be silenced ina free society.

- 18 -

The district court's dismissal with

prejudice did not end the district court's

imposing penalties for the exercise of

First Amendment rights by Prof. Zagano and

others. The district court also used this

as a factor in enjoining the State

proceedings, cynically stating in its

injunction decision that "Dr. Zagano's

various highly inflammatory letters to

Fordham alumnae [sic] and friends demon-

strate that the mere existence of any

pending lawsuit gives her -- as she sees

it -- the right to continue such

communications." (9a) It is not the exist-

ence of a lawsuit that gave Prof. Zagano

the right to communicate about the

controversy. It is the Constitution that

gave her such right.

The district court then used an injunc-

tion to silence Prof. Zagano. Ironically,

the court thus denied Prof. Zagano (and

- 19 =

the State) the only remaining forum for

resolving the controversy on its merits.

While the Second Circuit did not dwell

upon the various letters to the degree

that the district court did, it fully

acquiesced in the district court's reason-

ing and noted in its affirmance that

"Zagano had carried on a campaign seeking

public support for her cause, including

numerous communications to Fordham alumni

and others, many of whom contacted Fordham

officials on her behalf... . Near the

time of the January [1989] conference she

also led at least one supporter to believe

that while she was eager to go to trial in

the federal case, defendants' counsel was

engaged in delaying tactics to avoid such

a trial and to run up exorbitant legal

bills." (18a-19a) (The court of appeals'

reference to Prof. Zagano's supposed

action appears to be conjecture on its

- 20 -

part.) The court of appeals also acqui-

esced in the district court's conclusion

(based on its antipathy toward the various

letters) that "the action was an

‘instrument of vexation' against Fordhan."

(19a) The court of appeals was equally

content to permit legitimate exercise of

First Amendment rights to factor into, if

not determine, a voluntary dismissal

motion, a dismissal with prejudice without

a trial, and a wholesale injunction of

proceedings by the State, thereby denying

a last chance at final resolution on the

merits.

These amici urge the Court to grant

certiorari to review the precedents set by

the district court and the court of

appeals, which precedents are antithetical

to the First Amendment rights of

litigants. This case would enable a feder-

al court t6 Gétermine motions under Fed.

- 21-

R. Civ. P. 41 on the basis not only of a

litigant's communications in support of

his or her case, but on the basis of the

communications of third parties, to the

severe detriment of the litigant, includ-

ing the loss of substantive rights.

CONCLUSION

Free Speech Advocates and Presswatch,

as amici curiae, respectfully request this

Court to grant the petition for a writ of

certiorari to review the action taken by

the courts below which was impermissibly

based in significant part on the exercise

by petitioner (and others) of rights se-

cured by the First Amendment, and also

because the courts below unfairly denied

petitioner any forum to resolve meritori-

ous claims and improperly enjoined State

proceedings, in which the State was

- 22 «

complainant, in an unlawful interference

with the State's police power.

Dated: September 14, 1990

CHARLES E. RICE

Counsel of Record for

Free Speech Advocates and

Presswatch, Amici Curiae

Notre Dame Law School

Notre Dame, Indiana 46556

(219) 239-5667

Al

PHYLLIS ZAGANO LEGAL FUND

Box 248 FDR STATION

NEW YORK, NEW YORK 10150

Dear Fordham Alumnus:

Fordham University says it is not a

Catholic school. It is a Jesuit school.

Maybe that's why its new President,

Joseph A. O'Hare, S.J. dares to defend a

faculty member who attacks decency and

religion in pornographic magazines.

When I was an assistant professor of

communications at Rose Hill, my chairman,

George N. Gordon, wrote blasphemously in

SCREW, the weekly anti-Catholic tabloid

of pornography that "Jewish liberals

shall all feel guilty, because only one

who ever lived had a mother who was a

virgin."

Father O'Hare finds this acceptable and

defensible under "academic freedom."

He's said so -- in National Review

magazine (Sept. 20, 1985, p. 9). I am

sure you agree with me that it is not.

George Gordon's anti-religious statement

above is just one example of many from

his writings, including his writings in

SCREW magazine which continued well after

he tole me I would not be reappointed to

the faculty of Fordham because I was, in

his words, "too involved in Catholic

matters and affairs" and "some don't like

st.*

Official Fordham may not like faculty

A2

members involved in Catholic affairs, but

I am sure you do. At great saving of

time and money, I could have abandoned

the principle and walked away. But I

have filed a suit in Federal court to ask

for reinstatement and compensation. Will

you join me in this effort to make

Fordham reaffirm itself as Catholic? I

need help with my legal expenses to

pursue this principled case, and anything

you send me will be used for that purpose

only. What you send Fordham this season

will help defend George Gordon.

Please, let's both help Fordham be

Fordham.

Sincerely,

/s/ Phyllis Zagano

Phyllis Zagano

A3

PHYLLIS ZAGANO LEGAL FUND

Box 248 FDR STATION

NEW YORK, NEW YORK 10150

212 755-0051

December 1, 1986

Dear Bishop:

By now you have no doubt heard that when

I was an assistant professor of

communications at Fordham University my

chairman, George N. Gordon, was writing

editorials in SCREW, the weekly

anti-Catholic tabloid of hard core

pornography. During the summer of 1983

Gordon told me I would not be reappointed

to the communications faculty because I

was, in his words, “too involved in

Catholic matters and affairs," and “some

do not like it." Shortly after, he wrote

in SCREW magazine that "Jewish liberals

shall all feel guilty because only one

who ever lived had a mother who was a

virgin."

This shocking attitude is underscored by

the fact that part of my "too Catholic"

"matters and affairs" was my academic

research into the media's reaction to the

1983 NCCB letter on war and peace. In

fact, I've used a mailing label prepared

for that study to write to you today. At

great saving of time and money, I could

have abandoned the principle and walked

away. But I have filed a civil suit in

Federal court to ask for reinstatement

A4

and compensation. Will you join me in

this effort to restore values to

education? I would clearly prefer to be

back full time at my academic research,

but I need help with my legal expenses to

pursue this principled case.

Sincerely,

Phyllis Zagano

P.S. In a separate action, the New York

State Division of Human Rights has found

"probable cause" that Fordham

discriminated against me because of my

sex and religion, and will soon order a

public hearing on the matter.

A5

PHYLLIS ZAGANO LEGAL FUND

Box 248 FDR STATION

NEW YORK, NEW YORK 10150

Dear Member of the President's Club:

I am told that at a recent President's

Club meeting, Mr. Richard Bennett, in

response to a question about my situation

as regards Fordham, said in substance "We

took care of that a long time ago." I am

writing to tell you that this is

inaccurate.

As you may know, when I was an

assistant professor of communications at

Fordham University my chairman, George N.

Gordon, was writing editorials in SCREW,

the weekly anti-Catholic tabloid of hard

core pornography. During the summer of

1983 Gordon told me I would not be

reappointed to the communications faculty

because I was, in his words, “very much

engaged in Catholic matters and affairs,"

and “some do not like it." My department

had voted 2 against and 3 abstain on the

matter of my reappointment. Shortly

after, he wrote in SCREW magazine that

"Jewish liberals shall all feel guilty

because only one who ever lived had a

mother who was a virgin." As you

probably know, obscene pornography is not

protected speech under the First

Amendment. I personally brought Gordon's

writing to the attention of a Fordham

administrator in September, 1983, yet

Gordon continued as department chairman.

In fact, he continued to write in SCREW.

Please be advised that Gordon is still at

A6é

Fordhan.

The Fordham president who presided

over my final days at Fordham, Joseph A.

O'Hare, S.J. has written that Gordon's

SCREW statements "could and would be

defended as a right of academic freedom"

(National Review, Sept. 20, 1985, p. 9).

He is presently circulating a statement

which argues in part that “another

Catholic woman" was recommended for

tenure "at approximately the same time."

Yet the woman received tenure well after

I filed my 3 internal grievances (one of

which -- on the matter of a Merit Raise

-- was upheld by the Faculty Grievance

Committee).

At great saving of time and money, I

could have abandoned the principle and

walked away. After extensive

investigation, the New York State

Division of Human Rights found “probable

cause" that Fordham discriminated against

me because of my sex and religion, and in

March, 1986 ordered a public hearing.

Fordham has caused such unreasonable

delays that this hearing on the State's

findings will not begin until October 26,

1987, if then. Fordham has also been

delaying its provision of witnesses to

the U.S. Department of Labor, which is

conducting a separate investigation under

Title 38 USC.

I have also filed a civil suit in

Federal court to ask for reinstatement

and compensation, and a number of loyal

alumni have assisted me in this effort.

I need help with my legal expenses to

pursue this principled case, and I need

responsible individuals to continue

A7

speaking the truth about this situation.

Anything you can do to help me will no

doubt help build a better Fordham.

Sincerely,

/s/Phyllis Zagano

A8

PHYLLIS ZAGANO LEGAL FUND

Box 248 FDR STATION

NEW YORK, NEW YORK 10150

Dear Fordham Alumnus:

As you may know, when I was an

assistant professor of communications at

Fordham University my chairman, George N.

Gordon, was writing editorials in SCREW,

the weekly anti-Catholic tabloid of hard

core -- that is, legally obscene --

pornography. During the summer of 1983

Gordon told me 1 would not be reappointed

to the communications faculty because I

was, in his words, “very much engaged in

Catholic matters and affairs," and "some

do not like it." Shortly after, he wrote

in SCREW magazine that "Jewish liberals

shall all feel guilty because only one

who ever lived had a mother who was a

virgin." I brought this to the attention

of a Fordham administrator in September,

1983, yet Gordon continued as department

chairman and continued to write in

SCREW. He is still at Fordham.

The Fordham president who presided

over my final days at Fordham, Joseph A.

O'Hare, S.J. has written that Gordon's

SCREW statements "could and would be

defended as a right of academic freedom"

(National Review, Sept. 20, 1985, p. 9).

As you probably know, obscene pornography

is not protected speech under the First

Amendment.

My case against Fordham is so clear

that the New York State Division of Human

Rights, after extensive investigation,

found “probable cause" that Fordham

AQ

discriminated against me because of my

sex and religion, and in March, 1986

ordered a public hearing. Fordham caused

such unreasonable delays that the State

did not begin to present its findings

until October 26, 1987, when the Fordham

attorney objected strongly to the

presence of onlookers. At a public

hearing!!! The public hearing continued

on January 7, 1988, but Fordham requested

and obtained cancellation of the second

hearing day. When my attorney was

unavoidably delayed on April 6, Fordham

first asked to cross-examine me without

him present, and then tried to have the

entire hearing day cancelled. Fordham

did cancel half of the May 6 hearing, but

despite Fordham's delays, a hearing is

scheduled for June 17, 1988. Please join

me then on the 10th Floor of 55 West

125th Street, New York City, beginning at

10:00 a.m.

Fordham has also been quite

uncooperative in the U.S. Department of

Labor's separate investigation under

Title 38 USC, regarding the Fordham

Communication Department's objection to

my Naval Reserve commission.

I have also filed a civil suit in

Federal court to ask for reinstatement

and compensation, and may alumni have

assisted me in this effort. I need help

with my legal expenses to pursue this

principled case, and I need responsible

individuals to continue speaking the

truth about this situation. Anything you

can do to help me will no doubt help

build a better Fordhan.

Sincerely,

/s/ Phyllis Zagano

A10

PHYLLIS ZAGANO LEGAL FUND

Box 248 FDR STATION

NEW YORK, NEW YORK 10150

Dear Fordham Alumnus:

When I was an assistant professor of

communications at Fordham University my

chairman, George N. Gordon, was writing

editorials in SCREW, the weekly

anti-Catholic tabloid of hard core --

that is, legally obscene -- pornography.

In July, 1983 Gordon told me I would not

be reappointed to the communications

faculty because I was "very much engaged

in Catholic matters and affairs," and

"some do not like it." Shortly after, he

wrote in SCREW magazine that "Jewish

liberals shall all feel guilty because

only one who ever lived had a mother who

was a virgin." I brought this to the

attention of a Fordham administrator in

September, 1983, yet Gordon continued as

department chairman and continued to

write in SCREW. He is still at Fordhan.

The Fordham president who presided

over my final days at Fordham, Joseph A.

O'Hare, S.J., has written that Gordon's

SCREW writings "could and would be

defended as a right of academic freedom"

(National Review, Sept. 20, 1985, p. 9).

As you probably know, obscene pornography

is not protected speech under the First

Amendment.

My case is so clear that the New York

State Division of Human Rights, after

extensive investigation, found "probable

cause" that Fordham discriminated against

me because of my sex and religion, and in

All

March, 1986 ordered a public hearing.

Fordham caused such unreasonable delays

that the State did not being to present

its findings until October 26, 1987, when

the Fordham attorney objected strongly to

the presence of onlookers. At a public

hearing!!! The public hearing has

continued, but so have Fordham's delaying

tactics. Despite the delays, hearings

are scheduled for March 9 & 10 and April

6 & 7, 1989. Please join me then on the

10th floor of 55 West 125th Street, New

York City, beginning at 10:00 a.m.

I have also filed a civil suit in

Federal court to ask for reinstatement

and compensation, and many alumni have

assisted me in this effort. I need help

with my legal expenses to pursue this

principled case (to my mind, Fordham has

not explored settlement possibilities in

good faith) and I need responsible

individuals to continue speaking the

truth about this situation. If you

cannot assist me financially, perhaps you

could contact Thomas F. X. Mullarkey, the

Chairman of the Fordham Board of

Trustees, to express your opinion on this

matter. Anything you can do to help me

will no doubt help build a better

Fordhan.

Sincerely,

/s/Phyllis Zagano

Thomas F.X. Mullarkey, Esq., FCO'S54,

LAW'59

Lazard Freres & Co., 1 Rockefeller Plaza,

NY, NY 10020 (212) 373-6277, (212)

489-6600

FAX 212-974-2825

Al2

October 6, 1988

Mr. Thomas F.X. Mullarkey, Esq.

FCO'54, LAW '59

Lazard Freres & Co.

1 Rockefeller Plaza

New York, New York 10020

Dear Mr. Mullarkey:

I am sure you are aware of the

information Phyllis Zagano has sent to

Fordham alumni.

I realize the facts as presented by Ms.

Zagano are one sided and I was inclined

to ignore them. However, eight years of

Jesuit training prevailed and I find it

necessary to at least question the

institution that has occupied a special

place in my heart since before I entered

the Prep in 1942.

I cannot find fault with an

administration that allows George Gordon

to teach at Fordham, even if Ms. Zagano's

charges are true. I suppose I would have

to question a decision that moved anyone

with those "credentials" to a position of

power.

Of far greater importance to me are the

charges that Ms. Zagano was discriminated

against on the basis of sex (I have eight

daughters) and that somehow she was

discriminated against for being an active

Catholic. I also find it unbelievable

Al13

that the Fordham I knew would object to a

woman holding a Naval Reserve Commission.

At first blush the charges seem ludicrous

and absurd. However, as a faithful

alumnus I must ask for some sort of

explanation of the situation. I would

feel foolish splitting next year's

donation between Fordham and Phyllis

Zagano's legal fund.

Yours very truly,

AMDG

P.S. I am glad it is you and not I that

has to read these letters.

Al14

ECUMENICAL CHRISTIAN MINISTRIES, INC.

THE ECUMENICAL CAMPUS CENTER

SIXTH AND ELM, HAYS, KANSAS 67601

"Protestant Ministry Serving the Campus

Community of Fort Hays State University"

October 4, 1988

Thomas F. X. Mullarkey, Esq.

Lazard Freres & Co.

1 Rockefeller Plaza

new York, NY 10020

Dear Mr. Mullarkey:

As a friend of Phyllis Zagano I

respectfully ask that you exercise your

authority as Chairman of the Board of

Fordham University to resolve as

expeditiously as possible the protracted

dispute between Dr. Zagano and the

University. Although I am acquainted

with this matter only from Dr. Zagano's

perspective, I can assure that continued

foot-dragging tactics do not enhance the

perception of Fordham as an institution

that respects and pursues truth wherever

it may lead.

I have enclosed a statement I

prepared on Dr. Zagano's behalf. Thank

you for your consideration and for your

willingness to make appropriate

interventions.

Very truly yours,

cc: Phyllis Zagano

Al15

The Couple to Couple League

International, Inc.

.-- building healthy marriages through

natural family planning

July 12, 1988

Richard J. Bennett

10 Maple Drive

North Caldwell, NJ 07006

Dear Mr. Bennett:

The case of Fordham University versus

Phyllis Zagano has dragged out now for

over five years, and I ask of you that as

a trustee of Fordham you instruct Father

O'Hare to reappoint Professor Zagano and

to stop the stalling on the legal

hearings. I want to quote what I wrote

to Father Joseph A. O'Hare on October 5,

1987.

“Over the last 25 years I have seen

ample indications of middle

management problems within the

Church, but the fact that your

Situation is not unique does not make

it any less unjust. I suspect that

someplace in the Constitution of

Fordham University is some lofty

statement about the pursuit of truth

and justice, maybe even something

about the development of personal

character along Christian lines.

in your middle management you have

someone who writes for a pornographic

magazine and then from that

perspective blocks the re-appointment

Al16

of a qualified person who is known to

support the teaching of the Roman

Catholic Church. Such prejudice and

discrimination would be intolerable

at a secular university; it should be

unthinkable at a University that

still chooses to be thought of as

somehow Catholic. With all the talk

about peace and justice in the world

today and especially in the American

Church, how can it be that you allow

so much injustice and unrest in the

case of Phyllis Zagano?"

Pope Paul VI coined the phrase

"Justice is another name for peace." By

the same token, injustice is the primary

cause of discord and war. Injustice is

of two types - - substantive and

procedural, and Fordham appears guilty of

both by the initial firing (technically

non-reappointment) and by stalling in an

apparent effort to wear down the

suppliant. Well, what if you should

succeed in breaking her" What if you

cause something within her to snap? Will

you then be satisfied? Will you then

congratulate yourself that Fordham did

rightly by not renewing her contract

because, after all, anyone who can't take

5, 7, 10 years or whatever of

psychological warfare shouldn't be

allowed to teach at Fordham?

The next time you read a survey

showing that people don't trust big

business management, you have only to

look in the mirror to discern why.

During these past few days, the prophet

Pibotn

Al17

Hosea has been read at Mass, and his talk

about the rich and powerful grinding the

weak into the ground is all too

applicable to the present case.

I know not if you are Catholic or

care a whit about Catholic teaching, but

if your going to be a trustee of a

nominally Catholic institution you should

know at least this much: the purpose of

all Catholic teaching about social

justice is to secure justice and peace

for the individual person. Even if you

should believe that Ms. Zagano received

substantive justice by being de facto

fired, do you in the depth of your heart

believe she is receiving procedural

justice by the University dragging this

matter out for over five years?

Justice is another name for peace.

Please act accordingly.

Sincerely,

A18

FORDHAM UNIVERSITY

BRONX, N.Y. 10458

Office of

THE PRESIDENT

Dr. Phyllis Zagano's Quarrel with

Fordham University

The decision not to reappoint Dr. Phyllis

Zagano, when her contract as an assistant

professor in the Department of

Communications expired at the end of the

school year 1983-84, was made in the

spring of 1983. This decision was taken

by the administration upon the

recommendation of a departmental

committee consisting of the then chairman

and other senior members of the

department. The deans of the Graduate

School of Arts and Sciences and Fordham

College concurred in that recommendation.

During the last year of her contract,

1983-84, Dr. Zagano appealed this

decision directly to the administration

and through various faculty committees.

The administration asked her department

to review her case once again. The

department did so and and again

recommended against reappointment, by an

even stronger margin. A second faculty

committee that reviewed the case found no

reason to amend or set aside the decision

not to reappoint her. Similarly, the

faculty grievance committee that reviewed

her case concluded that there had been no

Alg

violation of Dr. Zagano's academic

freedom.

Peer evaluation is an essential part of

decisions made concerning faculty members

at American academic institutions. It is

not uncommon for faculty members who are

denied reappointment or denied tenure to

claim that one or another form of bias

influenced these evaluations. As a

result, universities are continually

involved in litigation with former

faculty members who claim that the

decisions made in their cases were the

result of one or another kind of

bias--racist, sexist, religious, ethnic,

etc. Dr. Zagano's case is somewhat novel

only because of the grounds on which she

charges bias; she claims that the then

chairman of her department told her that

she would not be reappointed because she

was "too involved in Catholic matters and

affairs."

If this were the case, it would be a

strange anomaly, since Fordham University

is proud of its Catholic heritage and

Catholic identity. Dr. Zagano's account

of her conversation with her chairman,

however, is disputed by the only other

participant in that conversation.

Whatever the truth of this dispute, other

members of the departmental committee

that recommended against her

reappointment would deny most vigorously

that such considerations entered into

their judgment. I should point out that

the same department, which included two

senior members who are Jesuit priests,

A20

recommended for tenure at approximately

the same time another Catholic woman.

Dr. Zagano's case is now being heard in

several different Federal and State

tribunals. I cannot comment on these

proceedings, but I should point out that

the determination of the New York State

Division of Human Rights that Dr. Zagano

cites was a very preliminary ruling that

merely provides that a hearing be held on

her claim. To date, there has been no

finding in any tribunal that the charges

made by Dr. Zagano have any validity.

Along with pressing her case in these

various tribunals, Dr. Zagano has also

been engaged in a campaign to discredit

the University by focusing attention on

Dr. George Gordon, who was the chairman

of her department at the time the

decision was made. She points to the

fact that some of Dr. Gordon's research

before he came to Fordham was

questionable and that during the summer

and fall of 1983, he published three

short op-ed pieces in Screw magazine.

She also claims that I have defended Dr.

Gordon's publication in Screw as an

exercise of academic freedom.

The presence of Dr. Gordon at Fordham is,

of course, an entirely separate matter

from the question of Dr. Zagano's

qualification for reappointment.

Nonetheless, I hasten to provide some

clarifications about Dr. Gordon since Dr.

Zagano has persistently attempted to make

him the central issue. Dr. Gordon was

A21

hired as a full professor with tenure in

1981. His extensive publication record

up to that time was available to those

faculty members who considered his

appointment, and one of these was Dr.

Zagano herself. When his op-ed pieces in

Screw magazine came to the attention of

the University administration in the fall

of 1983, Dr. Gordon was told that his

choice of publication was offensive to

many administrators and faculty at

Fordham University. Since that time, no

further writing by Dr. Gordon has

appeared in Screw magazine.

When I assumed the office of President in

July 1984, the issue of Dr. Zagano's

reappointment was being reviewed by a

special faculty committee. A few weeks

later, I received the report of that

committee indicating that it had found no

justification for Dr. Zagano's claims of

bias. I accepted the finding of that

committee. I saw no reason to reopen a

case that had been reviewed several times

by the previous administration and

various faculty committees.

A year later, in summer of 1985, the

issue of Dr. Gordon's publication in

Screw magazine once again became public,

as Dr. Zagano sought to identify the

issue of her own reappointment with the

question of Dr. Gordon's suitability to

teach at Fordham. The issue of Dr.

Gordon's choice of publication in 1983

had been addressed in a reasonable way,

it seemed to me, by the previous

administration in January 1984. I saw no

A22

reason to reopen this case a year and a

half later, particularly when our

University counsel points out that Dr.

Gordon's choice of publication would

probably not be considered by American

courts sufficient ground for the

dismissal of a tenured professor. While

I would not and did not defend Dr.

Gordon's choice of publication as a

legitimate exercise of academic freedon,

I recognized that many others would.

Furthermore, I have seen no evidence in

the three years that I have been

President of anything less than

professional conduct on the part of Dr.

Gordon. In fact, from time to time I

receive from students and faculty

unsolicited expressions of respect for

his teaching and other contributions to

the University.

I look forward to the resolution of this

controversy in the various tribunals in

which it is being judged. Such a

resolution would make it possible for Dr.

Zagano to get on with her life and for

the President of Fordham University to

turn his attention to more interesting

and more constructive projects than

repeatedly rehearsing a dispute that took

place four years ago, before I had

assumed the office of President.

Meanwhile, I regret that this unhappy

episode has been the occasion for the

dissemination of so much misleading and

mistaken information about Fordham.

Joseph A. O'Hare, S.J

September 1987

A23

TRANSCRIPT OF DISTRICT COURT PROCEEDINGS

MARCH 15, 1989

[11] THE COURT: Any indications of

vexatiousness. I [12] don't know what the

good judge in the Eastern District -- who

was it?

MR. POTH: I think it was a

magistrate, your Honor.

THE COURT: A magistrate?

MR. POTH: I'm pretty sure it was a

magistrate. Shinewein.

THE COURT: A district judge made

that the order of the court and got it

published in West, is that what it

amounts to?

MR. POTH: I don't know. The Federal

Reporter shows a magistrate's decision,

your Honor.

THE COURT: Whatever the word

"indications" means, if you read, as I

skimmed through the various letters that

President O'Hare has annexed to his

affidavit, you certainly get a strong

flavor, arguably, of vexatiousness.

Those letters are --

MR. POTH: Your Honor, have you read

parts of our reply memorandum?

THE COURT: No, you tell me about

that.

A24

MR. POTH: Shall I do that now?

THE COURT: Letters to the faculty,

to the alumni --

MR. POTH: Not only to faculty.

THE COURT: "I want money to pursue

this [13] principled case in the federal

court. I have filed a civil suit in the

federal court and, alumni, I need help in

my legal expenses to pursue this

principled case," which is our case. I

assume she got a kitty from some people.

MR. POTH: It wasn't a kitty, your

Honor. She got a very small amount of

money.

THE COURT: A very small pussy cat.

MR. POTH: Indeed, sir.

THE COURT: She is really going after

him. She says this guy Gordon is

outrageous for writing the Screw

Magazine.

MR. POTH: I couldn't agree more.

THE COURT: Is that not vexatious to

write such things to the alumni of the

college?

MR. POTH: I will point out two

things. It so happens that I spent some

time as staff counsel of the American

Civil Liberties Union and I have some

familiarity with Freedom of Speech

A25

cases. This to me is a prime example,

ana the words in the defendant's -- I

guess it is in Father O'Hare's affidavit,

that these people, the alumni, were

recipients of her provocative material,

that's what Voltaire and Thomas Paine

were always accused of.

THE COURT: Maybe they were

vexatious, too, in the name of Freedom of

Speech, and protected.

MR. POTH: As an ex civil liberties

lawyer, I [14] don't agree with the union

on everything it does today, to settle

that question, but it still is a

constitutional right we have to protect.

THE COURT: Explore possibility in

good faith.

MR. POTH: There is a New York Times

editorial, don't read it now, but would

you read it at sometime, that hits the

nose exactly. It is this miserable

program I have never seen that some woman

complained to the radio stations that it

was terrible and the advertisers

apparently took heed.

The New York Times points out that

exactly, that that is exactly what it

should be. It says if the advertisers

hereto translate that to the alumni,

particularly the most generous givers, if

they choose to heed such protests that's

their business, and this is the whole

purpose of free speech. This is one area

in which fF do have some expertise.

A26

THE COURT: I couldn't agree with you

more. I do not disagree with you at all,

but the University at this point is

saying we want these issues resolved to

get this behind us.

MR. POTH: That's another issue, sir.

THE COURT: And that's what they are

saying. Now, they may lose the case,

they may win the case, but they say, we

are tired of these letters, we are tired

of alumni [15] writing to the president

saying, “Am I going to have to split my

gift to Fordham next year between the

University and Phyllis Zagano's defense

fund?"

MR. POTH: I thought all of those

reply letters that Father O'Hare included

-were excellent letters.

THE COURT: They were, but the

University wants the issue resolved.

MR. POTH: The ones that came back I

thought were great.

THE COURT: They are fine letters,

but they want a resolution.

MR. POTH: If I could finish. I

agree with you, but it so happens that

the University never raised the question

of hurry or speed for going to trial

immediately in this case until late

December of last year.

es

A27

Ms. Soyster, and I am not saying this

critically at all, joined with me, or

acquiesced, in the filing of, I don't

remember at this point how many requests

for adjournment of pretrial conferences,

your Honor, that you had set.

There was never any complaint either

by this court or by Ms. Soyster until

late December when I asked Ms. Soyster,

"What should we do about the federal

court case? Shall we adjourn it again?"

and she said, "No," and that was the

first time we really started to press

forward.

{16} So if we are talking about delay,

Judge, delay is a factor only post

December 15, whenever the last settlement

conference was.

THE COURT: This letter writing

campaign I gather began last fall?

MR. POTH: It goes back much further

than that.

THE COURT: Some of the letters here

seem to be October.

MR. POTH: Could be, yes. I have not

seen, obviously, all the letters that my

brother --

THE COURT: They are in the papers.

MR. POTH: I know. Before I had not

seen all of the letters that my client,

who tends to do things on her own, had

A28

written, and I'm sure she has written a

lot more than just the ones that are

there.

THE COURT: This starts off, to

Richard Bennett, trustee, "The Phyliis

Zagano case has dragged out five years,

as of lst July. I ask you as trustee to

instruct the president to reappoint her

and stop stalling on the hearings. That

stinks."

If I was trustee of the University I

would be saying to O'Hare, "What's up?"

And at that point he would call up his

lawyer and say, "What's up?" And at that

point she comes into the courtroom and

says, "I want a trial."

MR. POTH: What was the date of that

letter, your [17] honor? ....

[28] THE COURT: Do you have any of those

letters to you?

[29] MR. SOYSTER: I have one of them

with me.

THE COURT: May I see it, please?

MR. SOYSTER: Certainly. It is a

letter to the academic vice president of

Fordham which describes my bad behavior.

THE COURT: Who is Reverend Potter?

MR. SOYSTER: He is the academic vice

president of Fordham and one of my

primary contacts in terms of legal

£0480 rasinbweontaiions itive ids ial ania eeeeaiaaamaatas

-A29

representation of the University.

(Pause)

THE COURT: Mr. Poth, have you looked

at the second paragraph of this thing?

MR. POTH: It shocks the hell out of

me.

THE COURT: The second paragraph

says, "If there is no negotiated

settlement and the case goes to court,

and Phyllis Zagano's lawyers are ready to

go to court" -- here we are.

MR. POTH: Your Honor, I have nothing

to do with this letter whatsoever. I am

shocked by it. Patrick Heelan, who is a

name fresh to me in any event --

THE COURT: He obviously is not

writing this having made it up out of

thin air. This is not rain that fell on

his head, somebody gave him this

information.

MR. POTH: I am shocked by it myself.

THE COURT: Where did he get this

information? [30] From Mrs. Zagano?

MR. SOYSTER: I know where he got

it: Dr. Zagano, of course. The

chronology he refers to as if it is an

official document which she prepared.

MR. POTH: It says at the botton,

"copies of other papers that Dr. Zagano

A30

sent me. Best wishes for the New Year."

Father Heelan, who is a Jesuit, Judge, I

believe is or was Dr. Zagano's -- help me

on this factually if you know -- superior

or department head when she, Zagano, was

a teacher or an assistant professor,

whatever her title was, at the StonyBrook

campus, where Heelan is.

MR. SOYSTER: More to the point,

though, your Honor, is the fact that

Father Potter is a philosopher and now

the academic vice president of Fordhan.

These are professional colleagues and

very serious allegations, and I might

add, I hope unnecessarily, entirely

erroneous allegations are being made from

someone who is a person you normally

would take seriously. This is the kind

of thing.

I didn't put these on the paper

because what is happening to me is not an

issue. What is happening to Fordham and

to Father O'Hare is an issue.

THE COURT: No, but this is relevant,

it seems to me, if credited, on the issue

of whether or not Dr. Zagano has a right

at this point to drop this suit and walk

away from it without cost to her but a

terrible cost to you, and [31] it is

certainly some evidence -- Voltaire,

vexatious as he might have wanted to have

been, would have recognized that this is

defamatory, and therefore not privileged

by the First Amendment.

MR. POTH: I'm not sure of that, your

flew Ped OD AAR LEW

A31

Honor. There is a lot of case law on

that one.

THE COURT: You cannot go around

saying that a lawyer is lining her

pockets and is a liar to the president of

the University.

MR. POTH: Your Honor, I was merely

speaking to the First Amendment

question. As I said twice before, this

shocks me, shocks the bejesus out of me.

_THE COURT: In any event, I am

marking this exhibit as Court's Exhibit 1

this date, being a letter of Patrick

Heelan, State University StonyBrook,

dated January 12 of 1989, to Reverend

Vincent Potter, Fordham University. We

will put a tag on that.

(Court Exhibit 1 marked for

identification)

THE COURT: It seems to me that this

is based upon something obviously that

Mrs. Zagano --

MR. POTH: It says so here.

THE COURT: -- furnished him and told

him and exhibits a state of mind in

several directions, including the fact

that she purports to say that she wants

to go to trial today.

[32] MR. POTH: I don't know that it says

that.

A32

THE COURT: Paragraph 2: "Phyllis

Zagano's lawyers are ready to go to

court." You may not be ready to go to

court, but she is.

MR. POTH: Judge, I'm not too sure

that's any more accurate a statement than

anything else that I read in this

particular piece of paper.

MR. SOYSTER: If I could continue

[44] THE COURT: Now these letters to the

trustees, to the alumni, to the

president, to Mr. Heelan, asking him to

write further --

MR. POTH: From Mr. Heelan.

THE COURT: No, she sent him a

chronology and [45] other things, I

assume there was an accompanying letter

saying, "Patrick, write me a letter, do

me a favor."

MR. POTH: I thought you said this

letter.

THE COURT: -- creates certainly a

circumstantial prima facie case that she

is using the publicity of this to further

her goals in what we all could conclude,

if we get down to Heelan's letter, is a

wholly impermissible way. You don't go

around calling the adversary lawyer a

liar and this and that and the other.

MR. POTH: I agree with that

A33

absolutely.

THE COURT: My question to you is, at

some point, and I want to quickly say to

you, there is an attorney/client

privilege here that you may wish to

assert, but I would like to know what she

said to you about why she is not going

forward today.

You probably said to her, "Phyllis,

this judge Owen, I have been before him,

he is awful hard nosed about this thing.

He has set this trial day, he has told me

we are going, and I am telling you that

there is a risk here that he is going to

chuck this case out."

I am not asking you to tell me that

that was what was said, but that's a

conversation that probably happened.

MR. POTH: Obviously I can't say that

or even nod my head, but I'm going to

tell you something else, sir, I have been

trying for sometime to convince her that

we ought [46] to file a motion to

dismiss. I probably should have --

THE COURT: Why didn't she?

MR. POTH: Could I finish, your

honor?

THE COURT: Do you want to tell me

what she said or do you not want to tell

me?

MR. POTH: Obviously, I cannot,

A34

because of the attorney/client privilege,

tell you what she said, no.

The next thing in my notes is I was

going to tell you what exactly happened.

THE COURT: Did she say anything to

you that was to be communicated to me?

Because then there is no longer a

privilege.

MR. POTH: No, Judge, she certainly

did not.

THE COURT: Did she say, "You tell

the judge so and so and so and so," and

if she said that, obviously there is no

privilege.

MR. POTH: She likes you, Judge, so

she did not say anything of that sort, to

be transmitted to you.

THE COURT: My question is, if she

wants to go forward, here is the day.

MR. POTH: Your Honor, if I could

finish I think I can answer what you are

asking.

I endeavored to persuade her for some

time, and I will claim fault on my part

in this, I should have done it sooner,

there is no doubt. I suppose early

January -- ... .-

EE oe He

IO Nt te et Nae ee ye a Re

eed

A35

StonyBrook

Department of Philosophy

State University of New York at Stony

Brook

Stony Brook, New York 11794-3750

January 12, 1989

Reverend Vincent Potter, S.J.

Fordham University

Bronx, NY 10458

Dear Vinnie,

I am enclosing the Chronology of the

Zagano-Fordham case which shows that the

unconscionable five and a half year

postponements are due to Fordham's

lawyer, not Zagano's. The profile of the

postponements suggests to me the

following conclusions: 1. that the lawyer

is lying in what she has told the

President and others about the cause of

the delay; 2. that her strategy is to

consume the resources of the plaintiff;

while 3. in a self-serving way, racking

up legal fees for herself. The

consequences are that, if and when the

case comes to a negotiated settlement,

Fordham will look worse and will have to

pay more for the more extended period of

personal injury.

If there is no negotiated settlement

and the case goes to court--and Phyllis

Zagano's lawyers are ready to go to

court--her side will try to prove that

the atmosphere of the Communications Arts

Department was poluted against women

A36

(track record of hirings, public

reputation in her profession, personal

conduct of members of the Dept., all

male, including Jesuit, ex-Jesuit,

anti-Jesuit, and non-Jesuit), against the

Catholic Church and Catholic morality

(Screw magazine; Gordon's Erotic

Communications, etc.), and against the

military of the USA (whatever it is, the

military are supporting it). As I said

to you, this is not an anti-Fordham case

but an anti-Communications Arts

Department case.

Having looked at the chronology of

the case, what it suggests to me is that

the Fordham lawyer has not served Fordham

well, that the Fordham lawyer may be

incompetent, that she may be

self-serving, and that she may have

misinformed the President about the

substance and handling of the case in

order to defend her own personal stake in

the proceedings. These are just the

hunches of one who has been involved in

Similar cases. I think it would be in

Fordham's interest to have the handling

of the case reviewed by a different

lawyer and one in whom Fordham has

confidence. But above all, everybody has

a stake in a speedy resolution.

I am enclosing a copy of the

Chronology and copies of some other

papers that Phyllis sent me. Best wishes

for the New Year!

Yours sincerely,

/s/ Patrick SJ

Patrick A. Heelan, S.J.