Petition for Writ of Certiorari — San Filippo v. Bongiovanni
Supreme Court brief1992
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No. 92-
y
JUL 20 1992
OFEICE OF THE aa
IN THE
Supreme Court of the United States
OcToBeR TERM, 1992
JOSEPH SAN FILIPPO,
Petitioner.
VS.
MICHAEL BONGIOVANNI, ANTHONY S.
CICATIELLO, ADRIENNE S. ANDERSON, DONALD
M. DICKERSON, FLOYD H. BRAGG, NORMAN
REITMAN, individually and as members of the Board of
Governors of Rutgers University, and RUTGERS,
THE STATE UNIVERSITY,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
LEON FRIEDMAN
Counsel of Record
Attorney for Petitioner
148 East 78th Street
New York, New York 10021
(212) 737-0400
QUESTIONS PRESENTED
l. Did the Court below properly hold,
consonant with the "void for vagueness" doctrine and the
need for fair warning under the due process clause, that
certain dismissal regulations at Rutgers, the State
University, dealing with standards of sound scholarship
and competent teaching covered activities not connected
with teaching and scholarship and therefore permitted
dismissal of a tenured professor, despite the fact that he
was accused of activities not involving teaching or
scholarship in any form?
y A Did the court below properly reverse the
decision of the district court which held that the Rutgers
regulations at issue, based upon their legislative history,
attempts at revision and their application in specific
cases were void for vagueness since they did not give fair
warning that the particular activities with which
petitioner was charged could lead to dismissal?
3. Did the Court below err by upholding the
validity and application of the regulations without
looking at any interpretive guides or permitting factual
development and evidence to determine the common
understanding of the University community with respect
to the reach of the regulations at issue?
4. Did the Court below commit error by not
applying this Court’s decision in Gentile v. State Bar of
evada, 111 S. Ct. 2720 (1991) which held that general
standards which contain classic terms of degree and have
no settled usage or tradition of interpretation cannot be
applied in situations where they do not give fair warning
that they can be applied in a given situation.
LIST OF PARTIES
The parties to this action are listed in the caption
of the case. None of the parties has any subsidiary or
parent companies.
TABLE OF CONTENTS
QUESTIONS PRESENTED
TABLE OF AUTHORITIES V
OPINIONS BELOW l
STATEMENT OF JURISDICTION l
STATUTES AND CONSTITUTIONAL
‘ PROVISIONS INVOLVED ]
STATEMENT OF THE CASE l
REASONS FOR GRANTING THE WRIT 21
I THE COURT SHOULD DECIDE
WHETHER THE VAGUENESS
DOCTRINE WAS MISAPPLIED
IN THIS CASE IN VIEW OF THE
COURT OF APPEALS’ CONCLUSION
THAT THE RULES REGULATING
TEACHING AND SCHOLARSHIP
COVER MORE THAN TEACHING
AND SCHOLARSHIP 21
I] THE LEGISLATIVE HISTORY OF
THE REGULATIONS, THEIR
DEFINITION IN OTHER RULES
AND THEIR INTERPRETATION
AND APPLICATION IN EARLIER
INSTANCES DEFINED THE
REGULATIONS IN A MANNER
CONTRARY TO THAT GIVEN BY
THE COURT OF APPEALS 26
CONCLUSION 30
APPENDIX A la
Opinion, United States
Court of Appeals for the
Third Circuit, dated
April 22, 1992
TABLE OF CONTENTS (Continued)
APPENDIX B
Opinion, United States
District Court, District
of New Jersey, dated
July 25, 1990
APPENDIX C
Order, United States
District Court, District
of New Jersey, dated
July 25, 1992
APPENDIX D
Consent Order Amending
July 25, 1990 Order to
Include 28 U.S.C. 1292(B)
Statement And Staying Action,
dated September 20, 1990
APPENDIX E
Order, United States Court
of Appeals for the Third
Circuit Granting Petitioner’s
Motion to Appeal, dated
December 19, 1990
36a
64a
66a
68a
TABLE OF AUTHORITIES
CASES
Page
Arnett v. Kennedy,
416 US. 134 (1974) 1, 20, 24
Bence v. Breier,
501 F.2d 1185 (7th Cir. 1974) pa
Bouie v. City of Columbia,
378 U.S. 347 (1964) 28, 29
Boutilier v. INS,
387 U.S. 118 (1967) 22
Cleveland Board of Education v. Loudermill,
470 U.S. 532 (1985) 24
Colten v. Kentucky,
407 U.S. 104 (1972) 19
Connally v. General! Construction Co..
269 U.S. 385 (1926) 19
Director, OWCP, U.S. Department of Labor v.
Mangifest, 826 F.2d 1318 (3d Cir. 1987) 3, 23
Gentile v. State Bar of Nevada,
111 S. Ct. 2720 (1991) 2, 24,
25, 30
Grayned v. City otf Rochtord,
408 U.S. 104 (1972) 21
Marin v. University of Puerto Rico,
377 F. Supp. 613 (D.P.R. 1974) 22
STATUTES
28 U.S.C. 1254(1)
28 U.S.C. 1292(b) 19
oo Wok. 1931
42 U.S.C. 1983 1,4
MISCELLANEOUS
Note, "Bringing the Vagueness
Doctrine on Campus,"
80 Yale L.J. 1261 (1971) 23
“The Pythoness," in
4 Penguin Book of French
Verse, (N.Y. 1959) 23
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
Petitioner Joseph San Filippo prays that a writ of
certiorari issue to review the judgment and opinion of
the United States Court of Appeals for the Third
Circuit.
OPINIONS BELOW
The opinion of the Court of Appeals (Appendix,
infra, la-34a) is reported at 961 F.2d 1125 (3d Cir.
1992). The opinion of the District Court is reported at
743 F. Supp. 327 (D.N.J. 1990) and is reproduced in
Appendix B at 36a-63a.
STATEMENT OF JURISDICTION
The judgment of the Court of Appeals was
entered on the date of the opinion, April 22, 1992. The
jurisdiction of this Court is conferred by 28 U.S.C.
1254(1). The jurisdiction of the district court over the
underlying cause of action is conferred by 42 U.S.C.
1983 and 28 U.S.C. 1331.
STATUTES AND CONSTITUTIONAL
PROVISIONS INVOLVED
The case was brought under 42 U.S.C. 1983.
Also involved is the Fourteenth Amendment to the
Constitution of the United States.
STATEMENT OF THE CASE
This case involves an important application of the
vagueness doctrine in the context of public employment,
as issue that this Court has not examined since Arnett v.
Kennedy, 416 U.S. 134 (1974). As noted below, review is
necessary in this Court because the Third Circuit,
reversing the District Court’s grant of summary
judgment, misapplied the Arnett standard and refused
to consider this Court’s most recent application of the
vagueness doctrine in Gentile v. State Bar of Nevada,
111 S. Ct. 2720 (1991). Review is also necessary because
the challenge arises in the context of university
regulations relating to the dismissal of tenured faculty
members in state universities, an issue which this Court
has never considered.
The Petitioner, Joseph San Filippo, was a
prominent Chemistry professor at Rutgers - the State
University of New Jersey, with a distinguished teaching
and scholarship record. But he was a thorn in the side of
the Chemistry Department because of his repeated
complaints about the violation of University, state and
federal regulations by senior members of his
department. In return, these senior members then
solicited charges against him, specifically that he had
allegedly "exploited" certain visiting co-employees of the
University from China by allowing them to work in his
3 The issue of the standards for dismissing tenured
faculty members throughout the nation has received
considerable attention recently. See "The Need for
Academic Tenure Reform," Los Angeles Times, July 4,
1992, B7 (dealing with standards for dismissing
professors); "Court Finds a Violation of a Professor’s
Rights," The New York Times, June 9, 1992, B3 (dealing
with successful lawsuit brought by dismissed tenured
professor); "Legal Woes on Campus Increase; Due
Process Questions Are Often at the Fore," National Law
Journal, June 8, 1992, Business Watch, p. 1 (dealing with
law suits brought by professors on due process grounds);
"Move to Dismiss a Tenured Professor is First at
Kansas," New York Times, October 25, 1989, B7: "The
Kansas case and a plan by the University of California
system to set public guidelines for the discipline and
dismissal of ‘grossly incompetent’ tenured faculty
members have raised concern among some professors
that such moves could expose them to personal reprisals
unconnected with how well they teach."
garden on spring weekends without pay. These co-
employees were not students enrolled at the school but
foreign nationals employed as researchers in Dr. San
Filippo’s laboratory. The charges against him were
reviewed by a faculty Senate panel and the University
administration, each concluding that he had violated the
"basic ethical tenets of the profession, including those
standards of professional ethics set forth in University
Regulation 3.91" and dismissed him from his tenured
position.
The only difficulty with this scenario is that the
"ethical" rules which he was alleged to have violated do
not provide for dismissal and are not subsumed in the
dismissal rules of the University, as both the District
Court and the Court of Appeals found (22a, 49a-51a).
Nevertheless, the Court of Appeals reversed the District
Court and upheld the dismissal by invoking other
regulations, permitting dismissal if a professor violates
"standards of sound scholarship and competent
teaching,’ although it was a given that his actions did not
involve teaching and scholarship as they were defined in
other regulations at the school (see pp.27-28 below).
The regulations at issue in this case were drafted
after many years of debate and effort at Rutgers
University (a state-supported university which is a "state
actor" for purposes of the due process clause). In 1967, a
joint faculty-administration committee revised certain
regulations dealing with the discipline and dismissal of
be It is uncontested that the "exploitation" charge
was the most serious charge brought against Petitioner.
The minor nature of the other charges, which are
discussed below at pp. 13-15, cast doubt on the bona
fides of the entire campaign.
. The ethical rules in University Regulation 3.91,
are quoted in fn. 11 of the Third Circuit decision, 19a.
4. The regulations relating to dismissal are laid out
in fn. 5 of the Third Circuit decision, 8a-10a.
faculty members. Those regulations eliminated an
"open-ended" "catch-all" provision governing faculty
conduct, which had been in effect for many years. Like
similar provisions in force in some universities, which
provide for dismissal for “conduct unbecoming a
teacher,” "good cause," or "adequate cause," the previous
Rutgers regulations allowed termination of a teacher
"because his conduct has been reprehensible and
detrimental to the University." (Third Circuit Appendix,
"3dA643"; see also 58a)
In 1967, that standard was replaced at Rutgers by
a more specific standard permitting dismissal of a faculty
member only if he or she was found guilty of (1)
incompetence, (2) incapacity, (3) conviction of a crime
involving moral turpitude or (4) failure to maintain
"standards of sound scholarship and competent
teaching.” (See Reg. 3.97, quoted at 9a). The clear
purpose of such a revised and specific standard was to
eliminate the open-ended provisions of the past, which
gave broad discretion to the school administration and
which could be applied against politically unpopular
teachers. Rather, the new rules required school
administrators to focus on acts of misconduct specific to
the area of teaching or scholarship, such as clear
deficiencies in the classroom, plagiarism, academic fraud
and the like.
After Petitioner was dismissed, he brought an
action in federal court under 42 U.S.C. 1983. On cross-
motions for partial summary judgment, the District
Court found?’ that the legislative history of the
regulations, later proposed revisions as well as the actual
application of the regulations in prior dismissal
proceedings made clear that Rutgers’ dismissal rules
covered only specific conduct defined by the rules and
that they could not be interpreted as equivalent to open-
ended dismissal provisions such as existed in other
schools or in previously eliminated provisions in the
earlier Rutgers regulations. (60a-61a; 58a).
The District Court also found that the open-
ended "ethical" rules found in Reg. 3.91, were not
applicable in a dismissal context since those ethical rules
were not embodied in the dismissal regulations. |
Rutgers has no ‘catch-all’ provision in its dismissal
regulations, much less one which would permit it to
terminate a faculty member because he or she acted
unethically." (61a). Applying the actual words of the
operative regulations, the District Court found: "The rub
is this. Professor San Filippo’s ‘scholarship’ and
‘teaching,’ as those terms are commonly understood,
were never ... at issue.” (51a).
Nevertheless in a bewildering decision that
seriously erodes the protections of faculty members at
Rutgers and in state universities around the country, the
Third Circuit said in effect that "standards of sound
scholarship and competent teaching" mean whatever the
administration thinks those words mean, even if they do
not arise in the context of teaching or scholarship. And
despite the fact that Rutgers had eliminated an ‘catch-
all" provision in the regulations over twenty-five years
ago, the Court of Appeals treated the new specific
regulations as if they were equivalent to the rejected
rules of the past. Such analysis violates the "fair warning"
requirements of the due process clause and requires
review and reversal by this Somet.
The verbal shell-game engaged in by the Court of
Appeals and the University underscores the core
constitutional defect in the proceedings against
Petitioner. The University’s approach is a variation of
the Alice-in- Wonderland trick "of making words mean
so many different things," or making them mean "just
what I choose [them] to mean." ~ However, the United
States Constitution requires that fair notice be given to
5. See Director, OWCP, U.S. Dept. of Labor v.
Mangitest, 826 F.2d 1318, 1334 (3d Cir. 1987)(Weis, J.
conculring).
any person that certain conduct will lead to specific
sanctions against him or her. As the District Court below
found, the dismissal regulations at issue here, based
upon their specific legislative history and the manner of
their prior application at Rutgers, did not give fair notice
that they could be applied against the type of activity
with which Petitioner was charged. Thus any effort to
apply them in this case is unconstitutional under the
vagueness doctrine. The Third Circuit erred in reversing
the District Court’s careful and correct analysis of the
relevant constitutional principles.
Statement of Facts:
Petitioner, Dr. Joseph San Filippo, Jr. was an
Outstanding scientist and teacher at Rutgers for
seventeen years, from 1971 to 1988, when he was
dismissed. (37a-38a). The Senate Panel that
recommended his dismissal made the _ tollowing
comments about his record:
Professor San Filippo has an excellent
record as evidenced by his long list of
publications and promotion to the rank of
professor in 1984...He has received over a
million dollars in research grants and
awards. He has worked with industry to
bring together funding for equipment at
Rutgers. He is an active research[er] with
an international reputation and a senior
member of the Chemistry department. His
research accomplishments are an asset to
the University’s quest for excellence and
distinction. There is no doubt that
Professor San Filippo has made positive
contributions to the awl (3dA941)
Other scientists in the field testified to his
brilliance in his field. Professor F.A. Cotton, one of the
foremost inorganic chemists in the world, wrote that San
Filippo "was among the most talented young chemists in
the country," (3dA432). A Stanford professor
commented on his "large, vigorous and diverse research
program," and he was nominated by his own department
for the American Chemical Society’s Award in Pure
Science, as well as for other prestigious awards.
(3dA433, 434). His resume shows over 70 published
ar\cles and the delivery of over 50 important scientific
papers all over the world. (3dA55U-55).
His teaching ability was among the highest as
well. He received above average teaching evaluations,
with students commenting, "very good lecturer,’
“detailed and clear," "very much in command of the
course,’ “interested and informative professor," and
“truly a credit to the Chemistry Department." (3dA439,
440).
Petitioner distinguished himself in yet another
way that earned him the enmity of his senior
departmental colleagues and the — University
administration. He repeatedly and publicly objected to
what he considered dangerous, improper or even illegal
activities at the school. As the District Court below
noted,
Professor San Filippo had to have been a
thorn in Rutgers side, continually voicing
complaints and filing grievances and
arbitrations concerning a_ variety of
matters and filing at least three legal
actions against the University aside from
this action, conduct which played no
explicit part in Rutgers decision to
terminate him (38a)(emphasis added).
In 1977 and again in 1979, he made numerous
complaints about the dangerous conditions in the
chemistry laboratories and was quoted in the school
newspaper as calling them "a health hazard and an
absolute danger." (3dA443). His comments about health
conditions in the laboratories led directly to the creation
of a AAUP-University safety committee (3dA446).
Petitioner also testified before a state grand jury about
an adjunct faculty member using a chemistry department
laboratory to manufacture illegal drugs. For these
actions, he was attacked by his department chairman for
"washing the department’s dirty linen in public” and for
his "disloyalty." (3dA458).
Petitioner became embroiled in another dispute
in the Chemistry Department in 1983-84, when the
department sought to obtain major federal funding for a
second mass spectrometer.(3dA459). He cautioned his
colleagues that if they persisted in their stated attempt to
factually misrepresent the department’s needs in this
regard, he would report their conduct to the relevant
federal agency. The department chairperson and some
senior colleagues took this as a threat and placed a letter
of reprimand in Petitioner’s personnel file. He contacted
the U.S. Attorney’s office regarding the department's
action against him, which the Assistant U.S. Attorney
characterized as an effort to obstruct justice. Informed
by Petitioner of this, the department withdrew the letter.
(3dA460).
Petitioner also complained about various
financial irregularities in the Chemistry Department.
Thus, when the Department made _ inappropriate
disbursements from his federal research grants, he cited
the requirements of federal law prohibiting the leveling
of such charges. (3dA446). He objected, for example, to
the legality of a "shop user’s fee" to Chemistry
Department members on the grounds that it constituted
double billing (since the shop services being billed were
covered by University overhead, provided by his
federally funded grants and other charges) and was an
inappropriate charge to his federal grant a second time.
He called it "illegal." (3dA451).
Dr. San Filippo also had numerous disputes with
senior members of his department over promotion and
Salary increases, which ultimately led to his filing of
several grievances against the University. His claims of
administrative misconduct in his failed promotion were
sustained after a two year proceeding in which the
University’s position was presented and defended by the
same dean who, approximately a year later, initiated
dismissal charges against Petitioner. (3dA454). Rutgers
refused to comply with the contractually-mandated
remedy and as a result, the Rutgers AAUP Chapter filed
suit in state court to secure that remedy for Petitioner.
(3dA455, 461-462).
In 1984, Petitioner grieved the fact that he had
never obtained a supplemental Salary adjustment or
merit increase, although he met all the criteria. The first
hearings in the arbitration occurred in October, 1985,
just about the time the dismissal charges were being
prepared. The impartial arbitrator eventually found in
Petitioner's favor, holding that he had not been fairly
considered for a merit increase. In his final decision, he
made independent determinations about the hostility of
the department to Dr. San Filippo, finding that part of
the antagonism related to Dr. cin Filippo’ Ss exercise of
First Amendment rights. (3dA465).
In addition to the grievances, arbitrations and the
AAUP law suit on the promotion, Dr. San Filippo
brought other legal actions against the University. One
was filed in November, 1985 (just before the dismissal
charges were actually served on him). This was a libel
action brought in state court against three administrators
who had accused plaintiff of “deliberately falsifying"
certain time reports concerning one of his technical
assistants. Another law suit was brought by Dr. San
Filippo against the University was filed in March, 1986,
after formal charges had been recommended by the
University. That law suit complained, inter alia, of the
University’s withdrawal of graduate student assistance
without a hearing of any kind, based merely on the
accusations against him.
The Charges against Dr. San Filippo
The principal charges brought by the University
against Dr. San Filippo relate to his alleged
mistreatment of certain visiting foreign nationals (not
10
graduate students, but co-employees at the University).
In 1984, while he was on a lecture tour in China,
Petitioner was asked by certain Chinese he met to
consider accepting several Chinese nationals then
employed in chemical research in China as candidates
for temporary employment in his laboratory at Rutgers.
Petitioner agreed to this proposal despite his written
reservations detailing his concern about the professional
qualifications of the individuals who had _ been
nominated. Petitioner then made arrangements with the
University to sponsor as temporary employees two 29-
year old Chinese nationals, Mr. Hetian Gao and Mr.
Changhe Xiao, who had been recommended to him.
At the suggestion of the University’s
International office, Dr. San Filippo assigned these
individuals the title "Visiting Scholars," but that title was
rejected by the chairman of the chemistry department as
inappropriate. He designated them with _ the
employment title of "Visiting Investigators." Because of
that change in title and because of their late arrival in
ihe country, Messrs. Gao and Xiao did not qualify for
the University’s medical benefits program. (This became
the basis for one of the dismissal charges, Charge
1(c)(1la)). Months prior to their arrival in his
laboratory, Petitioner had provided both Mr. Xiao and
Mr. Gao with materials critical to the work they were to
perform in his laboratory. Upon their arrival he
ascertained that neither understood the work they were
to carry out, and therefore neither was prepared to
undertake the work they had contracted to perform. Dr.
San Filippo expressed to each _ individual his
considerable displeasure at their having failed to
prepare themselves for their work assignment. This
reproach of an employee for failed performance was
interpreted as an abusive threat to send them back to
China and was the basis for one of the dismissal charge
against plaintiff. (Charge 1(d))(11a).
Dr. San Filippo is an avid gardener and often had
visitors On social occasions who would work with him in
the garden. On one occasion in May, 1985, Petitioner
11
invited to his home a Mr. Peng Zhou, a Chinese national
who had house-sat Petitioner’s home while he was on his
lecture tour in China. (Mr. Zhou, who also figured in
other dismissal charges, was also involved in research in
Dr. San Filippo’s laboratory). Petitioner’s invitation to
Mr. Zhou included the suggestion that Mr. Zhou could
bring any friends he might choose. In turn, but
unbeknownst to Petitioner, Mr. Zhou invited Mr. Gao to
accompany him. Mr. Gao accepted Mr. Zhou’s
invitation, apparently believing that it afforded him the
Opportunity to return to the good graces of Petitioner
following the displeasure Dr. San Filippo initially
expressed when he revealed his lack of preparation for
his employment (3dA486). On the same day and again
on a later occasion in May, 1985, Mr. Wen-min Shi, the
President of the University Chinese Club, himself an
avid gardener and a social acquaintance of Petitioner,
asked Dr. San Filippo if he could also join him in his
garden. Mr. Shi also brought a friend and Mr. Zhou also
joined Mr. Shi on this later date and again invited --
unbeknownst to Petitioner -- Mr. Gao to accompany
him. (3dA486). Mr. Gao accepted on both occasions,
and all participated in normal social intercourse, some
garden work on a pleasant spring day, and Dr. San
Filippo took them all to a restaurant. (3dA486)
While Mr. Xiao was at the house, he fell and
injured his back. Several days later, he asked Dr. San
6. It must be noted that the invitation by a senior
professional to his coworkers to assist in gardening is not
an unusual occurrence. Newsweek Magazine reports
that Chief Justice Warren Earl Burger "occasionally
offered his law clerks the opportunity to plant trees and
shrubs at his suburban home on weekends. Few turned
him down." Newsweek, June 30, 1986, p. 21. Presumably,
on the same theory as that advanced by Rutgers, the
Chief Justice could have been impeached for his
“ethical” violations on the ground that they violated the
"good behavior" standard for federal judges under
Article III of the Constitution.
¢ .
12
Filippo to drive him to the hospital. (3dA487). Petitioner
then learned that Mr. Xiao had no health insurance. On
his own initiative, Mr. Zhou, who accompanied Mr. Xiao
as an interpreter, offered to present his own medical
insurance card in order to insure that Mr. Xiao would be
treated. Dr. San Filippo reluctantly agreed, only on the
condition that he would pay the full medical expenses
when they came. He did in fact make such payment.
(3dA487).
Months later, the Chajrman of the Chemistry
Department, Robert Boikess, ° learned of these events
at Petitioner’s house. A series of meetings were held
with Messrs. Gao and Xiao and other administrators,
from which emerged the following charges (10a-14a):
a. The charge that Petitioner
allegedly exploited Mr. Gao and Mr. Xiao
by "leading them to believe that they had
no choice but to perform domestic work
for [him]" (Charge 1(a))
b. The charge that Petitioner
exploited Mr. Xiao by representing that
he would be provided health benefits
when he came to the United States, but
that Petitioner then did not provide such
benefits. (Charge 1(c)).
c The charge that Petitioner
threatened and harassed these individuals
7 Sometime: thereafter, Chairman Boikess was
called as a witness. at a grievance hearing brought by
Petitioner. The arbitrator noted with respect to
Chairman Boikess’ testimony: "One would have to be a
piece of wood to fail to notice Dr. Boikess’ complete
distaste for San Filippo." (3dA598) He also stated that
his testimony as well as that of another senior member
of the department was "not credible with respect to
critical aspects of their testimony." (3dA580).
a3
by stating that he would send them back to
China and by directing abusive language
against them. (Petitioner was also charged
with using abusive language against a
Teaching Assistant, Ms. Zong Ping Chen
in an episode that occurred in March,
1986). (Charges 1(d) and (e)).
d. The charge that Petitioner directed
Mr. Xiao to identify himself as Mr. Peng
Zhou in Middlesex Hospital in order to
have Mr. Xiao covered by the latter’s
medica] insurance. (Charge 2).
€. The charge that Petitioner
encouraged Ms. Marilyn Brownawell to
submit a false time report for the week of
August 17, 1984. (Charge 3(b)).
8. Marilyn Brownawell, had been a consultant who
Operated and = maintained Petitioner’s mass
spectrometer. As a consultant, she had accumulated
over 700 hours of uncompensated overtime. Dr. San
Filippo had allowed her to take paid vacation time to
make up for such hours. In the summer of 1984, her
Status was changed from consultant to hourly employee.
Dr. San Filippo was unclear how that would affect her
status; he asked various administrators about what to do
and was told to maintain "the status quo" until the
situation was clarified. (3dA492). He took that to mean
that he could continue to give her paid vacation time to
make up for her uncompensated overtime and so
informed both Ms. Brownawell and his secretary who
prepared time reports Tor Ms. Brownawell. The latter
then took off one week in August 1984, but put in a time
report for that week, charging 40 out of 700 hours of her
uncompensated overtime as paid vacation. Dr. San
Filippo had left for China and the time report was signed
by both Ms. Brownawell and his secretary, but not by Dr.
San_ Filippo. Seventeen months later this episode
became one of the bases for dismissing him as a tenured
professor. (3dA496).
14
f. The charge that Petitioner violated
professional and academic standards by
bringing to the University certain foreign
visitors as post-doctoral fellows who did
not have the appropriate credentials.
(Charge 4).
g. The charge’ that _~ Petitioner
submitted a letter of recommendation
allegedly signed by a Chinese scholar
whom he knew did not actually sign that
letter. (Charge 5).
h. The charge that Petitioner was
guilty of insubordination in refusing to
obey a direct order of the Chairman of his
department, Dr. Robert Boikess, that
certain foreign nationals not work in his
laboratory. (Charge 6).
The last three charges related to the
following ineidents:
Charge 4: Petitioner sponsored Mr. Peng Zhou
as a visitor to the University in January, 1984. Since each
such visitor must have an appropriate job title,
Petitioner recommended "Visiting Scholar." This title
was rejected by the department administrator (a Mrs.
Shirley Maimone) who reviewed payroll appointments.
Aware that in an earlier equivalent situation Mrs.
Maimone had titled another visitor as a "postdoctoral
fellow"). Petitioner suggested that Mrs. Maimone
consider a similar course of action with regard to Mr.
Zhou. Mrs. Maimone checked with the dean’s office
about using the title "postdoctoral fellow" and she
received authorization to use that title. (3dA499).
Nevertheless Petitioner was later found guilty of
committing a dismissible offense and sacked as a
tenured professor in part for suggesting the title.
15
Charge 5. While in China in 1984, Petitioner
received a letter of recommendation handwritten in
Chinese by a Professor Liu and submitted on behalf of
Mr. Peng Zhou. On his return to the United States,
Petitioner had this letter translated by Mr. Zhou, had
the translation typed up and had Mr. Zhou transcribe
Professor Liu’s name to it in Chinese characters as it had
been in the original. The letter was forwarded as part of
Mr. Zhou’s application for graduate school. There was
never any question but that the translation was accurate,
and that Professor Liu had authored the
recommendation. But Petitioner was found guilty of
committing a dismissible offense because he did not
disclose that the Chinese character which corresponded
to Professor Liu’s signature on the translated letter was
in fact a simulacrum. (3dA501-02).
Charge 6: Even before any formal charges were
presented against Petitioner, and before he had any
chance to respond to them and before any hearing of
any kind was held, the chairman of the Chemistry
Department ordered that no more Chinese nationals
would be permitted to carry out research with Petitioner.
Several such individuals who had worked with Petitioner
for years and wanted to continue were forced to stop
their work. (3dA503-04). The department later retracted
the order, but before that occurred, some of these
individuals continued to work in the laboratory. The
Senate Panel later concluded that its recommendation
would have been the same even in the absence of
Charge 6 (3dA939),
Formal hearings to consider the charges were
initiated before a Senate Panel of five faculty members
chosen by lot, none of whom had any legal training. The
hearings began in March, 1987 and continued
intermittently through September, 1987. (3dA507) As a
result of the unexpected length of the proceedings and |
the heavy demand on their time, the members of the
Panel sought additional compensation from the Rutgers
Administration, represented by the Vice President for
16
Personnel, Susan A. Cole, the chief "prosecutor" of the
charges against plaintiff. To this end, the chairman of
the panel, Professor Ted Szatrowski, met secretly and
continuously with Vice President Cole to discuss
additional compensation for the panel members. In fact,
after the hearings were completed and the Panel issued
its decision in favor of the administration finding
Petitioner guilty of dismissible offenses, its members
received extremely generous salary increases. (3dA600,
870). Except for a brief exchange about the possibility of
summer salary payments, all of these discussions about
additional salary occurred off the record without any
notification to Petitioner or his _ representatives.
(3dA953-55)
On May 13, 1988, the Board of Governors upheld
the findings of the Senate Panel and ordered Petitioner
dismissed. (3dA979 et seq.) The Board made an
additional finding, not reached by the Senate Panel, that
Petitioner was guilty of violating Reg. 3.94 in that his
actions showed a failure to maintain standards of sound
scholarship and competent teaching. (19a).
There was one dissent, by member Walter
Wechsler, who stated that "the punishment is clearly out
of proportion to his alleged wrongdoing, and quite
possibly tainted by a long history of animus." (3dA1042)
He noted the lack of precedent for the punishment: "It is
difficult to imagine that, among the thousands employed
by the University, only Professor San Filippo had
committed offenses of this nature." (3dA1045). He
concluded:
The sanction imposed on Professor San
Filippo could be the death knell of his
career in higher education. Before
Sustaining that sanction, we must insure
that it was chosen as the result of objective
and careful deliberations and __ is
proportionate to the offense. (3dA1047)
at
The District Court Decision:
After his dismissal, Petitioner brought an action
under 42 U.S.C. 1983 against the members of the
Board of Governors of Rutgers University, alleging that
his constitutional rights were violated in three respects:
(1) the Rutgers regulations were void for vagueness; (2)
his dismissal was the result of retaliation against his
exercise of First Amendment rights; (3) he was denied
procedural due process in the conduct of the hearing, in
particular because of the financial interest of the
members of the Senate Panel in making a finding in
favor of the University. The complaint also contained a
a number of pending state claims (4a; 49a).
Before discovery was completed, the defendants
moved for summary judgment on all claims. Petitioner
then cross-moved for summary judgment on_ the
vagueness and procedural due process claims. The
District Court granted summary judgment in favor of
Petitioner on the vagueness issue.
The District Court found that the words of the
regulations do not support any claim that they cover
ethical violations. The Court noted that the word “ethics”
is not referred to in the dismissal regulations and the
word “dismiss" or "dismissal" does not appear in the
ethics regulations.(49a).
The Court pointed out that, since ethical
considerations weré at the heart of the entire effort to
dismiss plaintiff, the University had some responsibility
to show that such violations could lead to dismissal. But
the history of the development of the regulations and
proposals to amend them showed that the University
community did not believe that ethical violations could
be the basis for dismissal. Originally, the regulations
provided for dismissal for "conduct ... reprehensible and
detrimental to the University." This was changed in 1967
to provide for dismissal only after conviction of a crime
involving moral turpitude. Such an amendment made it
impossible to conclude that the dismissal regulations
18
covered any ethical violation, whether or not a moral
turpitude crime was involved (58a).
In addition, the Court pointed out, efforts were
made to amend the regulations in 1981 to explicitly
make ethical violations a basis for dismissal. If the
regulations already incorporated ethical dictates, that
effort would not have been necessary (54a).
The District Court also found that in two earlier
roceedings against “pry, members, the Villiers and
Leat cases, the Board of Governors had explicitly held
that the ethical regulations were not encompassed within
the dismissal rules, that is, a violation of those ethical
rules could not lead to dismissal. (50a; n. 23).
If the dismissal regulations do not cover ethical
violations, the District Court found that they could not
cover the conduct with which Petitioner was charged,
since none of that conduct could be considered
encompassed by the standard of "sound scholarship” or
“competent teaching."
"Standards of sound scholarship and
competent teaching" cannot include
ethical violations committed by a scholar
and teacher even in the academic setting
absent embodying the ethical
requirements of 3.91 in those standards, as
the common: sense definitions of those
standards in Appendix D_ of the
University’s Academic Reappointment
and Promotion Policy [3dA405-410]
indicate .. Rutgers, it appears, is
attempting to come in the back door after
refusing for years, to come in the front. As
applied to the conduct charged in this
case, ‘failure to maintain standards of
sound scholarship and competent
teaching,’ is void for vagueness. (61a
19
The District Court then certified the void for
vagueness issue for interlocutory appeal under 28 U.S.C.
1292(b)(67a). The Court of Appeals then granted
defendants permission to appeal (68a).
The Third Circuit Opinion
The Third Circuit reversed the District Court
decision, and found, without any further remand for fact-
finding or any need for reference to the understanding
of the University comminity, that the regulations were
not void for vagueness. The Court concluded, as did the
District Court and as Petitioner had urged, that the
"ethics" regulations were not incorporated into the
dismissal regulations at Rutgers. (21a)
The Court concluded, however, that the general
language found in Regulation 3.94 prohibiting failure to
maintain "standards of sound scholarship and competent
teaching" could be applied in this situation, even though
no teaching or scholarship was involved. The Court
held that the vagueness doctrine is based on the idea of
fairness:
Its purpose is only to give "fair warning" of
prohibited conduct. Colten v. Kentucky,
407 U.S. 104, 110 (1972). The relevant
inquiry is whether the statute or standard
is:
Sufficiently explicit to inform those
who are subject to it what conduct
on their part will render them
able to its penalties . . . consonant
alike with ordinary notions of fair
lay and the settled rules of law.
fciting Connally v. General Constr.
Co., 269 U.S. 385, 391 (1926)]
(25a)
The Court further noted that:
20
In the public employment context, the
Supreme Court has reiterated that the
vagueness doctrine is based on fair notice
that certain conduct puts persons at risk of
discharge. Such standards are not void for
vagueness as long as ordinary persons
using ordinary common sense would be
notified that certain conduct will put them
at risk of discharge. Arnett, 419 U.S. at
159. Accordingly, broad public employee
dismissal standards have been upheld
against void for vagueness attacks. The
Arnett Court upheld the general standard
"such cause as will promote the efficiency
of the service" for dismissal of civil service
employees. Id. (26a)
It concluded that Dr. San Filippo did obtain tair
warning in this situation:
Under these decisions, while
Rutgers dismissal regulations are broad
and general, they are not
unconstitutionally vague. Dismissal for
failure to maintain "standards of sound
scholarship and competent teaching" does
not fail to specify any standard for
dismissal but rather provides a standard
which encompasses a wide range of
conduct. We reject the district court’s
narrow reading of this standard based on
the absence of a "catch-all" provision in
Rutgers’ dismissal regulations, and
embrace the "common sense" approach of
Arnett and its progeny. ... A reasonable,
ordinary person using his common sense
and general knowledge of employer-
employee relationships would have fair
notice that the conduct the University
charged Dr. San Filippo with put him at
risk of dismissal under a regulation stating
he could be dismissed for "failure to
21
maintain standards of sound scholarship
and competent teaching.” Regulation
3.94. He would know that the standard
did not encompass only actual teaching or
research skills. (emphasis added)(28a-
29a)
The Court therefore reversed the grant of partial
summary judgment in favor of Petitioner.
REASONS FOR GRANTING THE WRIT
I.
THE COURT SHOULD DECIDE WHETHER THE
VAGUENESS DOCTRINE WAS MISAPPLIED IN
THIS CASE, IN VIEW OF THE COURT OF APPEALS’
CONCLUSION THAT THE RULES REGULATING
TEACHING AND SCHOLARSHIP COVER MORE
THAN TEACHING AND SCHOLARSHIP
The Third Circuit’s decision is nothing more than
astonishing. Having concluded that the regulations do
not encompass ethical regulations found elsewhere in
the Rutgers regulations, the Court nevertheless finds
that they require a professor to act "decently" toward
coworkers, a requirement found nowhere in the school!
regulations. Having found that the regulations cover
scholarship and teaching, the Court then concludes that
a faculty member should realize that "the standard did
not encompass Only actual teaching or research skills."
This type of analysis goes against every element
of the vagueness doctrine established by this Court,
whether in the criminal or civil context. This Court has
emphasized again and again that the key to
determinations of vagueness depend upon fair warning.
As this Court noted in Grayned v. City of Rochford, 408
U.S. 104, 108 (1972):
22
It is a basic principle of due process that
an enactment is void for vagueness if its
prohibitions are not clearly defined.
Vague laws offend several important
values. First, because we assume that man
is free to steer between lawful and
unlawful conduct, we insist that laws give
the person of ordinary intelligence a
reasonable opportunity to know what is
prohibited, so that he may act accordingly.
Vague laws trap the innocent by not
providing fair warning. Second, if arbitrary
and discriminatory enforcement is to be
prevented, laws must provide explicit
standards for those who apply them. A
vague law impermissibly delegates basic
policy matters to policemen, judges, and
juries for resolution on an ad hoc and
subjective basis, with the attendant
dangers of arbitrary and discriminatory
application. Third, but related, where a
vague statute ‘abut(s] upon sensitive areas
of basic First Amendment freedoms,’ it
‘operates to inhibit the exercise of [those]
freedoms.”
The void-for-vagueness doctrine applies when
civil penalties are imposed upon an individual, see
Boutilier v. INS, 387 U.S. 118, 123 (1967)("the ’void for
vagueness’ doctrine [is] applicable to civil as well as
criminal actions"). It applies when administrative rules
are used to sanction a government employee: ". . it is
well-settled that the prohibition against vagueness
extends to administrative regulations affecting
conditions of government employment, as well as to
penal statutes . ." Bence v. Breier, 501 F.2d 1185, 1188
(7th Cir. 1974). It certainly applies to university
regulations that deprive a university professor of a
constitutionally protected property right in his position
and his professional license. See e.g., Marin v. University
of Puerto Rico, 377 F. Supp. 613, 627 (D.P.R. 1974)("the
normal vagueness standards apply to university
23
regulations;" vagueness standard applied to student
discipline rules prohibiting "improper or disrespectful
conduct in the classrooms or campus" which were found
vague). See generally, Note, "Bringing the Vagueness
Doctrine on Connie” 80 Yale L. J. 1261 (1971).
The Third Circuit’s attempt to stretch the
meaning of "scholarship" and "teaching" into the area of
“decent” behavior of faculty members toward co-workers
-- not involving "teaching" and "scholarship" -- is
poe —— eae
reminiscent of Alice in Wonderland:
"When I use a word,’ Humpty Dumpty said in a
rather scorntul tone, ‘it means just what I choose
it tO mean -- neither more nor less.’
‘The question is,’ said Alice, ‘whether you can
make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, which is
to be master -- that’s all."
It does not take extended analysis to show that if
a government official or body can make "words mean so
many things," or make it mean "just what I choose it to
mean,’ then the official or body is "master" of all it
surveys. If Rutgers is allowed to define "sound
scholarship" as anything that a faculty member does in
his interpersonal relationships with co-employees or
Staff that interferes with scholarly activities -- none of
which are defined anywhere-- then the rules mean
whatever the administration wants them to mean, and it
-is "master" over the entire faculty.
To make another literary illusion, the French
poet Paul, Valery, spoke of the "beautiful chains" of
language. ““ We are "chained" by language in the sense
9. See Director, OWCP, U.S. Dept. of Labor vy.
Mangifest, 826 F.2d 1318, 1334 (3d Cir. 1987).
24
that the common meaning accepted by society binds the
governmental officials who apply the rules against our
citizens. And it is the courts’ function through the
"vagueness" doctrine to insure that government officials
do not invent new meanings for operative rules,
definitions that do not give citizens fair warning of what
conduct is proscribed by those rules and that gives such
officials too much discretion to apply those rules for
improper reasons.
The Third Circuit improperly relied upon Arnett
v. Kennedy, where this Court upheld a_ standard
permitting dismissal of federal civil service employees
for "such cause as will promote the efficiency of the
service. It was significant in Arnett that a personnel
manual was in existence that helped to interpret and
define dismissible offenses under the general standard,
which was not "written upon a clean slate," id. at 160. In
addition the regulations in Arnett covered the entire
federal civil service and Congress intended to "give
myriad different federal employees performing widely
disparate tasks a common standard of job protection,"
416 U.S. at 159. Thus a highly general standard was
proper. Other aspects of the Arnett decision were
overruled by this Court in Cleveland Board of Education
v. Loudermill, 470 U.S. 532 (1985).
Furthermore, the Third Circuit completely
overlooked and ignored this Court’s recent decision in
Gentile v. State Bar of Nevada, 111 S. Ct. 2720 (1991).
In that case, this Court examined a disciplinary rule
which stated that a lawyer may not make any statement
that has a _ "substantial likelihood of materially
prejudicing an adjudicative proceeding." However, the
rule had an exception, a "safe harbor" provision under
which a lawyer could "state without elaboration . .. the
general nature of the .. . defense."
10. See "The Pythoness," in 4 Penguin Book of French
Verse, (N.Y. 1959) at p. 63: "i. sainted
language...beautiful chains, put on man by the Gods."
25
This Court held that the latter "safe harbor" rule
was void for vagueness, and the lawyer could therefore
not be disciplined for violating it. It stated that the rule
‘fails to provide fair notice to those to whom [it] is
directed.’ . .. A lawyer seeking to avail himself of Rule
177(3)’s protection must guess at its contours. The right
to explain the ‘general’ nature of the defense without
‘elaboration’ provides insufficient guidance because
‘general’ and ‘elaboration’ are both classic terms of
degree. In the context before us, these terms have no
settled usage or tradition of interpretation in law," 111 S.
Ct. at 2731.
The Gentile decision would therefore suggest
that none of the conduct with which Dr. San Filippo was
charged fall within the definitions of the operative terms
of the Rutgers regulations. The activities with which
Petitioner was charged do not involve "scholarship" or
“teaching” in any sense. The modifying terms -- "sound"
and “competent” -- are also "classic terms of degree," as
this Court stated, which have "no settled usage or
tradition of interpretation" in regulating ethical conduct
of faculty members toward non-student, co-employees of
faculty members. As in Gentile, and unlike Arnett, there
was no "clarifying interpretation" of these terms that
forewarned anyone that the rules could be applied with
respect to allegedly unethical conduct by faculty against
such non-students. Indeed, as explained below, the
existing regulations interpreting these terms and the
precedents in the Villiers and Leaf cases suggest the
Opposite.
This case involves, every facet of the vagueness
doctrine. Rutgers University attempted to change the
meaning of its rules in its effort to dismiss Petitioner for
what appeared to be highly questionable reasons. (See
discussion above on Petitioner’s First Amendment
activities ).
The interchangeable use of the operative
language of the rules attempted by the University in this
26
case, shows that the Respondents were indeed trying to
be "master" of the situation by making these terms mean
whatever they wanted. But the fair notice requirements
of due process clause of the 14th Amendment,
embodying the vagueness doctrine, prohibits any such
manipulative and elastic use of language.
Il.
THE LEGISLATIVE HISTORY OF THE
REGULATIONS, THEIR DEFINITION IN OTHER
RULES AND THEIR INTERPRETATION AND
APPLICATION IN EARLIER INSTANCES
DEFINED THE REGULATIONS IN A MANNER
CONTRARY TO THAT GIVEN BY
THE COURT OF APPEALS
The Court of Appeals examined the regulations
as if they were written on a clean slate, without any prior
interpretation or explanation. The record belies that
approach. The regulations had an extensive history of
development and application that the District Court
relied upon but the Third Circuit totally ignored. Other
University regulations existed which interpreted the key
terms (scholarship and teaching) in the dismissal
regulations. In addition, there were prior interpretations
and applications of the dismissal provisions found in two
earlier cases of attempted dismissal by the Rutgers
administration, which the Court ignored. The only way in
which the Court below could reach the conclusion that it
did was to pay no attention to each and every of these
interpretative guides.
As noted above, an earlier version of the Rutgers
regulations provided that a faculty member could be
dismissed "because his conduct has been reprehensible
and detrimental to the University." (58a; 3dA643). The
change of the regulations to "failure to maintain
standards of sound scholarship and competent teaching”
must therefore be interpreted as an effort to restrict the
reach of the rules to a narrower compass. That
7
27
difference in language is totally ignored by the Third
Circuit.
In addition, Rutgers has, in other regulations,
detined the key terms in the dismissal regulations,
namely "teaching" and "scholarship." The standard stated
for judging teaching competency is:
As teachers, members of the
faculty are responsible for effective
instruction, whether at the undergraduate,
graduate, or continuing education level.
They should have both a depth and
breadth of knowledge in their chosen field
and be able to communicate | this
knowledge to their students. They should
maintain an active interest in the advances
and current thinking in their subject and
be able to relate such information to their
teaching in an organized manner.
Effective teachers feel and _ exhibit
enthusiasm for their subject and create an
environment that stimulates imaginative
thinking. They should have deep interest
in their students’ progress and welfare.
Moreover, they should maintain a critical
attitude toward their teaching and strive
continuously to improve it. (3dA405-10).
The stated standard by which scholarship is judged is:
Scholarly or creatiye activity should
characterize academicians. If they
function as scholars they are responsible
to the University and to society to keep
informed about advances in knowledge
and to contribute to them. Typically,
scholars engage in research work and
produce __ publications. However,
important and valuable scholarly activity
may be carried on without being directed
toward the production of research results.
28
Such scholarship may be expressed in a
variety of ways including teaching,
advising, public lecturing, enriching
courses, compiling of information, or
participating in organized professional
activities. These activities may be more
difficult to evaluate than research work
and publications, but they are no less
important. (3dA405-410)
An examination of the University’s own criteria
regarding the standards of scholarship and teaching on
which faculty are evaluated for appointment and
promotion do not incorporate any criteria which could
provide guidance to a faculty member apropos the
conduct alleged against Dr. San Filippo. It would be
impossible to apply the standards noted above to the
conduct charged against him, none of which related to
his teaching of or interchange with students. There is not
a word in any of the charges that impugn his research
and teaching performance, which were among the
highest in his department.
Furthermore, the Board of -Governor’s - prior
interpretation of the regulations in the Villiers and Leaf
cases shows that Rutgers did not believe that it covered
general standards of "ethics" and "decency" not involving
students or scholarship.
In this Court’s leading case of Bouie v. City of
Columbia, 378 U.S. 347 (1964), the detendants were
charged with trespass for "sitting-in" a department store
lunch counter and refusing to leave after being told to do
so. The state trespass statute prohibited entry upon
someone’s property after being given notice not to enter.
It had never been construed as covering the type of
conduct with which defendants were charged, namely
staying on the property of another after being asked to
leave, even though the initial entry was legal. The
highest state court, on appeal in that case, broadened
the interpretation of the law to cover a refusal-to-leave
situation, and construed the law as penalizing the act of
29
remaining on the premises of another after receiving
notice to leave, even if the entry had been permitted.
This Court reversed the conviction. It noted:
There can be no doubt that a deprivation
of the right of fair warning can result not
only from vague statutory language but
also. from an_ unforeseeable and
retroactive expansion of narrow and
precise statutory language. 378 U.S. at
352.
This Court noted that it is a violation of due process
‘where the construction expectedly broadens a statute
which on its face had been definite and precise." For in
that case, "an unforeseeable judicial expansion of a
criminal statute applied retroactively, operates precisely
like an ex post facto law..." 378 U.S. at 353.
In the situation now before the Court, the
University is retroactively urging a more expansive
interpretation of the dismissal rules than it had ever
taken before, an interpretation that is contrary to its °
interpretation of the rules in the Villiers and Leaf cases.
It cannot be allowed to do so since that would violate the
‘fair warning" requirements of the vagueness doctrine as
embodied in the due process clause. The Bouie case
precludes any interpretation of the rules in the expansive
manner accepted by the Third Circuit.
It must be noted that Petitioner does not dispute
that broad language in a dismissal regulation can cover a
wide variety of actions. Thus for example, it would not
be disputed that the standards relating to "competent
teaching" would presumably cover sex harassment of a
11. The Bouie case shows that the vagueness
doctrine covers not only unclear and uncertain language
in operative laws which truly do not give any warning
about what conduct they cover, but also very precise
laws that are applied in a manner totally foreign to their
ordinary meaning or their prior interpretation.
30
student who came to a teacher for assistance on a paper
or encouraging a coworker to falsify experimental data.
But it would not cover a teacher shouting at his or her
secretary, which has nothing to do with the scholarship
or teaching relationship.
The Third Circuit’s refusal to consider any
interpretative guides to the regulations and to examine
any evidence as to the understanding of the University
community as to what they meant goes counter to this
Court’s decision in Gentile which specifically noted the
importance of examining the "settled usage or tradition
of interpretation" of the general terms of a disciplinary
provision, 111 S. Ct. at 2731. Review by this Court is
necessary to correct these errors.
CONCLUSION
This Court should grant the writ to decide
whether the vagueness doctrine was properly applied
and whether .the Third Circuit properly reversed the
careful decision of the District Court, which granted
summary judgment to Petitioner.
Dated: July 15, 1992
Respectfully submitted,
¥
Leodn Friedman
148 East 78th Street
New York, N.Y. 10021
(212) 737-0400
Attorney for Petitioner
APPENDIX
la
APPENDIX A
Filed April 22, 1992
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 90-6052
JOSEPH SAN FILIPPO, JR.,
Appellee
v.
MICHAEL BONGIOVANNI, ANTHONY S.
CICATIELLO, ADREIENNE S. ANDERSON,
DONALD M. DICKERSON, FLOYD H. BRAGG,
NORMAN REITMAN, Individually and as members of
the Board of Governors of Rutgers University,
RUTGERS, THE STATE UNIVERSITY,
Appellants
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Docket No. 88-02575)
Argued: May 14, 199]
PRESENT: HUTCHINSON, COWEN and SEITZ,
Circuit Judges
(Opinion Filed April 22, 1992)
2a
John J. Peirano, Jr., Esquire (Argued)
Linda B. Celauro, Esquire
Carpenter, Bennett & Morrissey
100 Mulberry Street
Three Gateway Center
Newark, NJ 07102
Attorneys for Appellants
Leon Friedman, Esquire (Argued)
148 East 78th Street
New York, NY 10021
and
Stuart S. Ball, Esquire
Ball, Livingston & Tykulsker
108 Washington Street
Newark, NJ 07102
Attorneys for Appellee
OPINION OF THE COURT
HUTCHINSON, Circuit Judge.
I.
In this certified interlocutory appeal Rutgers, the
State University of New Jersey (Rutgers or the
University), its Board of Governors (Board) and the
Board’s individual members appeal an order of the
United States District Court for the District of New
Jersey. That order granted appellee, Joseph San
Filippo, Jr.’s (Dr. San Filippo’s) motion for partial
summary judgment as to liability on one of several of his
claims under 42 U.S.C.A. 1983 (West 1981) that
Rutgers violated his constitutional rights when it
stripped him of academic tenure and discharged him
from his position as a professor at that University. See
3a
San_Filippo_y. Bongiovanni, 743 F. Supp. 327, 339
(D.N.J. 1990).’
The order granting Dr. San Filippo partial
summary judgment concerned his claim that the grounds
set forth in the University’s regulations for dismissing a
tenured professor violated his Fourteenth Amendment
due process right to fair notice that the acts he was
charged with could lead to dismissal because they were
void for vagueness. Id.
The sole question before us on this certified
appeal is whether the University’s regulations were
indeed too vague to meet the fair notice requirement
l. The case remains pending in the district court,
but has been stayed pending disposition of this certified
interlocutory appeal.
2. Dr. San Filippo’s void for vagueness claim is
particularly set forth in paragraph twenty-seven of his
Third Amended Complaint. It reads:
27. The actions of defendants
complained of (including the actual dismissal, as
described above) violated plaintiff's due process
rights under the Sth and 14th Amendments and
the comparable provisions of the New Jersey
Constitution in that the University regulations
under which he was disciplined are vague and
uncertain and did not fairly warn him that the
acts of which he was accused were violations of
University rules. Furthermore, the rules, by
specifically mentioning § radically different
offenses for which dismissal was appropriate, did
not give plaintiff fair warning that the type of
offenses involved here were so serious that they
could serve as the basis for dismissal.
Appendix (App.) at 973.
4a
incorporated in the due process clause of the Fourteenth
Amendment to the Constitution. Therefore, we cannot
consider or decide Dr. San Filippo’s other express or
implied claims, or any implied claim that his discharge
violated. his constitutional right to substantive due
process.>
> San Filippo’s other express claims include
violation of his rights to procedural due process, equal
protection, and free speech under the United States and
New Jersey Constitutions, and a New Jersey state law
breach of contract claim.
San Filippo’s Third Amended Complaint does
not include any express claim that the Board’s action to
revoke his tenure and discharge him for reasons the
contract did not permit was a violation of substantive
due process. Paragraphs seventeen and eighteen do,
however, contain allegations from which it might be
possible to infer a substantive due process claim. They
state:
17.... The relevant rule of dismissal is Rule
3.94 which mentions the following offenses:
"failure to maintain standards of sound
scholarship and competent teaching, or gross
neglect of established University obligations
appropriate to the appointment, or
incompetence or incapacitation, or conviction of
a crime involving moral turpitude." In such cases,
and in only such cases, dismissal is appropriate.
But none of the accusations against plaintiff fit
within any of the categories mentioned in Rule
3.94 or are remotely covered by, or analogous to,
such defined offense. ...
18. The conclusion is inescapable that
defendants have violated their own standards by
invoking as a basis for dismissal conduct which
under its own rules do not justify dismissal.
Sa
The applicable dismissal regulations state that
tenured professors may only be dismissed for adequate
cause. Regulation 3.93. Adequate cause is defined as
"failure to maintain standards of sound scholarship and
competent teaching, or gross neglect of established
University obligations appropriate to the appointment,
or incompetence, or incapacitation, or conviction of a
crime involving moral turpitude... ." Regulation 3.94.
These regulations are no less definite than provisions
permitting discharge for immoral conduct, just cause or
conduct unbecoming a teacher. Such provisions have
been upheld against void for vagueness attacks in cases
involving the discharge of teachers, professors and other
public employees. Accordingly, we will vacate the
district court’s order granting Dr. San Filippo’s motion
for summary judgment as to liability on his 42 U.S.C.A.
1983 void for vagueness claim and remand the case to
the district court for further proceedings.
IT.
Dr. San Filippo brought suit against the
University in the United States District Court for the
District of New Jersey. He based his federal claims on
42 U.S.C.A. 1983. That Statute states:
Every person who, under color of any statue,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation 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. For the purposes
of this section, any Act of Congress applicable
App. at 966-67.
|
6a
exclusively to the District of Columbia shall be
considered to be a statute of the District of
Columbia.
The University moved for summary Judgment on
several grounds, including Dr. San Filippo's claim that
the University’s regulations governing the dismissal of
tenured faculty members were so vague that they
violated his right to due process. See San Filippo, 743 F.
Supp. at 332. Dr. San Filippo filed a cross-motion for
partial summary judgment as to liability on this same
claim. Id. After oral argument, the district court held
that the University’s discharge regulations, as applied to
Dr. San Filippo, were void for vagueness, as they did not
give him fair notice that the charges against him could
lead to dismissal. Accordingly, it granted Dr. San
Filippo’s cross-motion. Id. at 339.
Ancillary to its order granting Dr. San Filippo
partial summary judgment on his void for vagueness
claim, the district court denied the University’s motions
for summary judgment on the void for vagueness claim;
to strike certain affidavits and exhibits; and to strike Dr.
San Filippo’s claim for loss of consulting fees. The
district court granted the University’s motions to strike
Dr. San Filippo’s claims for punitive damages, front and
back pay, and research grants. Id. at 339. It did not
decide the remaining motions before it nor did it address
the question whether the record before the Board was
sufficient for it to find that Dr. San Filippo had
committed the particular acts of misconduct which the
Board had decided justified his dismissal. Id. at 332-33.
Later, the University moved the district court to
certify the void for vagueness question for interlocutory
appeal, and to stay the action pending disposition of its
petition for permission to appeal and pending appeal if
permission is granted. The district court granted the
motion and thus amended its order as follows:
Ta
STATED, pursuant to 28 U.S.C. 1292(b) and
Rule 23 of the Rules of the United States Court
_of Appeals for the Third Circuit, that the within
Order, in its grant of summary judgment to the
plaintiff determining that Rutgers, The State
University’s dismissal regulations are
unconstitutionally vague, involves a controlling
question of law as to which there is substantial
ground for difference of opinion and that an
immediate appeal from the order may materially
advance the litigation....
App. at 1132-33. This Court then granted the University
permission to appeal from the certified interlocutory
order.
ITT.
Dr. San Filippo became a tenured professor of
chemistry at the University in 1984. Before the
University discharged him, he was highly respected by
his peers for his professional achievements. 7
On January 6, 1986, the Dean of the Faculty of
Arts and Sciences gave Dr. San Filippo written notice
that various complaints had been made against him
regarding his conduct towards visiting Chinese scholars
brought fo the University to work with him on research
projects. The allegations included verbal abuse,
harassment, exploitation, - attempted exploitation,
4. Dr. San Filippo had previous oral notice of the
charges. On November 25, 1985 he met and discussed
the charges with the Dean of Arts and Sciences, the
assistant to the Dean, an American Association of
University Professors (AAUP) advisor, and the
Chemistry department Chairman and former Chairman.
Dr. San Filippo chose not to respond to the charges at
that time.
Sa
intimidation, fraud, deceit and misrepresentation. Dr.
San Filippo responded with a written denial.
Over the next several months, various
administrative actions were taken to investigate and
dispose of the charges against Dr. San Filippo. The
investigative phase ended on October 1, 1986, when
Rutgers’ President, Edward J. Bloustein, issue a formal
charging document pursuant to University Regulation
3.97. The document stated that Dr. San Filippo
"violated the basic ethical tenets of our profession,
including those standards of professional ethics set forth
in University Regulation 3.91, and that, in doing so, [Dr.
San Filippo has} failed in [his] responsibilities to this
University." App. at 892. Regulation 3.91 sets forth the
Statement on Professional Ethics adopted by the AAUP.
The document then stated the charges "meet the
standards for dismissal set forth in University
Regulations 3.93, 3.94, 3.97, and 3.99 and constitute
gross neglect of established university obligations
appropriate to your appointment and evidence a failure
to maintain standards of sound scholarship and
competent teaching.” Id. Regulation 3.93 states that a
tenured professor may be dismissed for "adequate
cause" as defined in section 3.94. Regulation 3.94
defines adequate cause as "failure to maintain standards
of sound scholarship and competent teaching, or gross
neglect of established University obligations appropriate
to the appointment, or incompetence, or incapacitation,
Os ie of a crime of moral turpitude... ." App. at
5. Regulations 3.94, 3.97, 3.98, 3.99 and 3.99a set
forth the standards and requirements for dismissal of a
tenured professor. They state:
3.94. Recommendations regarding dismissal of a
tenured faculty member or a nontenured faculty
member prior to the completion of his or her
contract, when the ground is failure to maintain
standards of sound scholarship and competent
9a
teaching, or gross neglect of established
University obligations appropriate to the
appointment, or incompetence, or incapacitation,
Or conviction of a crime involving moral
turpitude, are made to the president through the
executive vice president and chief academic
officer and the appropriate pr vost by deans of
colleges and schools, with the advice of the
tenured faculty, at, or above, the particular rank
in the faculty member’s department.
3.97. If the President of the University finds
reason to believe that a faulty member should be
dismissed when the ground is that he has been
convicted of a crime involving moral turpitude, or
is incompetent, or incapacitated, or has failed to
maintain for himself standards of sound
scholarship and competent teaching, the
President shall send the faculty member a notice
Stating in detail the charges against him and
informing him that he is entitled to a hearing if he
shall ask for it within two weeks and that, in the
absence of a request for a hearing, he may be
dismissed from the faculty.
3.98 If the faculty member requests a hearing, it
shall be held by a panel of five, selected by lot
from the elected members of the University
Senate; but the parties may first exercise a
reasonable number of challenges, and a member
of the Senate may be excused form service on the
panel at his own request, for good cause. The
procedure at the hearing shall fully conform to
the concept of due process; but the hearing shall
not be public unless the respondent so requests.
The President of the University shall designate a
lawyer or a member of the faculty to present the
charges, and the respondent shall be entitled to
the aid of counsel. His reasonable expense shall
be paid by the University. No administrative
10a
Specifically, the document set forth the following
charges:
l. Your treatment of scholars visiting trom
the People’s Republic of China and a
Chinese Teaching assistant violated the
standards of professional ethics required
of all faculty members. More specifically,
your treatment with respect to these
officer of the University shall participate in
presenting charges, or as defense counsel, or as
member of the panel.
3.99. The panel shall determine whether the
charges, or any part thereof, are true; whether
the matters charged and proved constitute
ground for dismissal under section 3.93 above;
and whether, taking into consideration the
respondent’s previous records and his value to
the University, he should be dismissed or
otherwise disciplined.
3.99a. The report of the panel shall be presented
to the Board of Governors and a copy thereof
sent to the respondent. Written as well as oral
argument may be submitted to the Board on
behalf of the President and the respondent. If
further evidence is required by the Board, the
panel shall be reconvened to receive it and to
make any further findings that may be
appropriate. The Board shall accord great
weight to the findings of the panel, and its final
action affirming, revising, or modifying the panel
shall be by vote for such action by at least six
members of the Board.
App. at 977-78.
lla
individuals, as set forth more fully in the
attached documents, is a follows:
a.
You took advantage of your
professional position and exploited
Mr. Hetian oa and Mr. Changhe
Xiao, both visiting scholars from
the People’s Republic of China, by
directing them or by leading them
to believe that they had no choice
but to perform domestic work for
you, such as- garden work and
indoor and outdoor cleaning work
during the period May through July
1985.
You attempted to exploit Ms. Yaru
Zang, also a visiting scholar form
the People’s Republic of China, by
attempting to make her perform
domestic work for you.
You exploited Messrs. Gao and
Xiao by representing that they
would be provided health benefits
coverage and that you would
deduct $700.00 from the salary to
be paid each of them in order to
cover the costs of such benefits.
Despite deducting such sums, you
did not provide coverage for Mr.
Gao or Mr. Xiao.
During the period of time that the
above-named visiting Chinese
scholars were at Rutgers, you
threatened and harassed those
individuals by repeatedly stating
that you would send them back to
China and by directing abusive
language toward them. :
i)
tJ
l2a
¢. On or about March 31, 1986, you
interrupted without sufficient cause
a laboratory class being conducted
by Teaching Assistant, Zong Ping
Chen. You continued that incident
by treating her in an
unprofessional, threatening and
abusive manner, within the hearing
of other individuals, including her
students.
On or about July 8, 1985, you direct Mr.
Changhe Xiao, who had injured himself
while doing maintenance work at your
house, to identify himself as Mr. Peng
Zhou in Middlesex Hospital in order to
have Mr. Xiao covered by Mr. Peng
Zhou’s medical insurance.
You encouraged and _ permitted
individuals working under your directions
and supervision to submit false time
reports and to make inappropriate
charges against certain University
accounts. Specifically:
a. In or about August 1985, Ms. Abie
Lieber, a secretary who works
solely under your supervision,
submitted a time report form,
urportedly to compensate Mr.
etian Gao and Mr. Changhe Xiao
for extra computer (and/or library)
work supposedly performed by
them, but you told them that the
payment was actually to provide
them with money to purchase
health benefits from the Chinese
consulate. Both Messrs. Hetian
Gao and Changhe Xiao thereatter
’
l3a
received $100.00 each, charged
against your NSF grant, despite the
fact that you knew that they had no
performed any extra work for the ,
money. (Note the previous
promise to provide health benefits
recited in item 1.c. above.)
b. Ms. Marilyn Brownawell, who
works directly under = your
supervision, submitted time report
forms for the week ending August
17, 1984. She reported and was
paid for 40 hours of work for that
period, charged against the
Chemistry Department’s mass
spectrometer account, even though
you knew that she did not perform
any work related to the mass
spectrometer or indeed = any
compensable work for Rutgers of
any kind during that period.
4. You violated professional and academic
standards and exploited foreign visitors to
the University by bringing to the
University as post-doctoral fellow Chinese
scholars who you knew did not have
appropriate credential and by charging
the stipends of such individuals, who did
not possess doctoral degrees, to your NSF
rant as post-doctoral fellows.
ubsequently, you supported these
individuals for admission to the graduate
program in Chemistry, a fact which clearly
established that they did not have the
credentials to be post-doctoral fellows.
Subsequently, you supported these
individuals for admission to the graduate
program in Chemistry, a fact which clearly
l4a
established that they did not have the
credentials to be post-doctoral fellows.
5. During Fall 1985, you submitted an
application for admission to the graduate
program, including letters of reference, on
behalf of Mr. Peng Zhou, one of the
individuals referred to in #4. above. One
of the letters of reference submitted by
you purportedly was written and signed by
Liu Guozhi. In fact, that letter was not
prepared by Liu Guozhi, and you had
knowledge of that fact and did not make it
known when you submitted the letter.
6. On December 16, 1985, Professor Robert
Boikess, Chair of your department,
specifically instructed you not to permit
Mr. Peng Zhou, Mr. Con-Yuan Guo, or
any other graduate student except those
already associated with your research
group, to work in your laboratory, pending
investigation of allegations of exploitation
an harassment lodged against you by
visiting Chinese scholars. Despite these
specific instructions, you subsequently
permitted Con -Yuan Guo, Zhen-Min
He, and Peng Zhou to perform work in
your laboratory.
App. at 1050-52.
The document concluded that the charges against
Dr. San Filippo, if ~~ could be a basis for his
dismissal, and that if Dr. San Filippo did not exercise his
preliminary right to a hearing before a panel of five
members of the University Senate (the Panel), President
Bloustein would recommend to the Board of Governors
So Board) that Dr. San Filippo be dismissed. Dr. San
ilippo requested a hearing before the Senate Panel and
his request was granted. The Panel hearing took 250
lSa
hours and lasted forty-six days. San Filippo, 743 F.
Supp. at 330. Following it, the Panel sustained charges
la, lc, 1d, le, 2, 3b, 4, 5, and 6 after determining that the
facts alleged within those charges were true.”
The Panel sustained four of the five subparts of
the first charge that Dr. San Filippo had "violated the
standards of professional ethics required of all faculty
members" through his abuse of visiting Chinese scholars
at the University. App. at 892. With respect to charge
la, the Panel found that Dr. San Filippo’s verbal abuse
and intimidation of the scholars created a climate in
which they felt compelled to perform domestic services
for Dr. San Filippo:
Professor San Filippo took advantage of his
professional position and exploited these visiting
scholars in a manner that was demeaning and
insensitive. Given his abusive and threatening
treatment of Messrs. Gao and Xiao, their recent
arrival in the United States, and his position as
their supervisor, Messrs. Gao and Xiao had little
choice in their response.
App. at 906./
6. Our description of the specifics of the various
charges and their disposition is taken primarily from the
portions of the record that deal with the’ Panel
proceedings noting, however, where the Panel’s report
differs materially from the findings and
recommendations of the Board.
t While the Panel found that Dr. San Filippo "did
not directly invite Mr. Gao and Mr. Xiao to come over
to his house or direct them to do uncompensated work
for him," App. at 905, the Board cited evidence that Dr.
San ee had explicitly assigned chores to the
scholars. App. at 998-999.
ee
- 16a
The Panel did not sustain charge 1b, which
asserted that Dr. San Filippo "attempted to exploit’
another Chinese visiting scholar by "attempting to make
her perform domestic work" for him, App. at 893,
because it found the evidence insufficient to support the
charge. Charge 1c, which asserted that Dr. San Filippo
had deducted money from the salary of two visiting
scholars to cover health insurance premiums without
obtaining any coverage for them, was sustained as to one
visiting scholar, but not as to the other.
Charge 1d concerning Dr. San Filippo’s use of
threatening and abusive language toward the Chinese
scholars was sustained as well. These outbursts
concerned the scholars’ work performance, a request by
one to be taken to the hospital for an injury sustained
while performing services for Dr. San Filippo at his
home, and the failure of two scholars who had
authorized deductions for health insurance premiums
from their stipends to otherwise obtain any pay for
health insurance from the Chinese consulate.
The Panel also sustained charge le concerning
Dr. San Filippo’s treatment of Zong Ping Chen. It did so
after three witnesses testified that Dr. San Filippo had
"used a loud, harsh, angry voice and yelled and used
obscenities in his discussion with Ms. Chen." App. at
918. On this charge, the Panel found Dr. San Filippo’s
conduct unacceptable not only because he abused Ms.
Chen but also because his interruption of her class
“disruipt[ed] _.. the learning environment." App. at
919.
8. Dr. San Filippo claimed that he was frustrated at
the attacks being made on his research program and that
Ms. Chen was upset because she had been put on a
waitlist-for the following semester’s teaching assistant
roster. He further claimed that he was frustrated with
Ms. Chen’s handling of the teaching assistant application
process. The Panel found these responses did not
justify, explain or excuse his actions.
| nea ae aia a
17a
The Panel additionally sustained the second
charge. While the Panel found that Dr. San Filippo did
not necessarily "direct" Mr. Xiao to use Mr. Zhou’s
insurance card, it determined that this misrepresentation
would not have occurred were it not for Dr. San
Filippo’s approval of the scheme. Further, while Dr. San
Filippo paid Mr. Xiao’s hospital bill, the Panel found his
payment delinquent in that it only happened after the
bill “was in the hands of a collection agency." App. at
921.
The Panel only sustained charge 3b covering Dr.
San Filippo’s involvement with the submission of false
time reports. The Panel sustained this charge because it
found Dr. San Filippo had authorized Marilyn
Brownawell, an employee working directly under his
supervision, to submit time reports that resulted in pay
from the chemistry department’s mass spectrometer
account for times when he knew she was on vacation.
The Panel considered Dr. San Filippo’s defense that he
had an "informal" agreement with Ms. Brownawell
regarding her compensation which explained the false
time report but found that, every if true, it did not
present a mitigating circumstance.” It noted that this
informal" agreement resulted in less money bring taken
out of Dr. San Filippo’s grant funds.
9. Dr. San Filippo claimed that the time form
submitted by Ms. Brownawell was not fraudulent but
was authorized by him so that Ms. Brownawell could be
compensated for work that she had done for Dr. San
Filippo in the past for which she had not yet been
compensated. Dr. San Filippo also said that the
business manager of the chemistry department led him
to believe that he and Ms. Brownawell could continue
their informal employment arrangement pursuant to
which the time report had been submitted.
Derren
18a
The Panel sustained the fourth charge as well.
Among the sustained charges, this charge seems most
closely related to the requirement statec in Regulations
3.91 and 3.94 that professors "maintain standards of
sound scholarship and competent teaching." This charge
concerned the appointment of two visiting scholars,
Cong-Yuan Guo and Pen Zhou as postdoctoral fellows.
The Panel did not sustain it with respect to Mr. Guo but
did with respect to Mr. Zhou. Dr. San Filippo had
received a memorandum from the Universitys Vice
President for Academic Affairs before he appointed Mr.
Zhou stating that only individuals with doctoral degrees
could be postdoctoral fellows. Mr. Zhou did not have a
doctoral degree. Dr. San Filippo had also been notified
by the chair of the chemistry department that Mr. Zhou
did not possess the qualifications necessary to hold the
position of a postdoctoral fellow. The Panel noted that
Mr. Zhou’s classification as a postdoctoral fellow gave
Dr. San Filippo the advantage of a lower charge against
his research grant.
The fifth charge, which asserted that Dr. San
Filippo had submitted an individual's application to the
University’s graduate program knowing that it contained
a recommendation letter of questionable integrity was
also sustained. The recommendation was presented as
an original letter from Liu Guozhi, a professor in China.
In fact, it was the applicant’s translation of a letter from
Professor Guozhi which Dr. San Filippo had edited and
on which translation the applicant had signed Professor
Guozhi’s name in the Chinese characters that
represented the professor’s signature. In sustaining this
charge against Dr. San Filippo, the panel noted there
was "insufficient evidence to sustain a charge that there
was no original letter of recommendation" from the
professor who purportedly wrote the letter that was
submitted. App. at 937.
Lastly, the Panel sustained the sixth and final
charge which asserted that Dr. San Filippo had allowed
three graduate students, Cong-Yuan Guo, Zhen-min
19a
He, and Peng Zhou, to work in his laboratory after being
specifically instructed in a memorandum from the chair
of the chemistry department that he was not to allow
them to work there pending investigation of the
complaints lodged against him by visiting Chinese
scholars. The Panel noted that the prohibition of Dr.
San Filippo’s use of graduate students was a "very strong
action," but concluded it was not unreasonable given the
gravity of the allegations against Ds. San Filippo and
therefore should have been obeyed.
Based on its determination that charges la, lc,
Id, le, 2, 3b, 4, 5, and 6 were true, the Pane! concluded
that "the matters charged and proved" met the standard
for dismissal of a tenured professor set forth in the
University Regulations and, after taking into
consideration Dr. San Filippo’s "previous record and his
value to the University" pursuant to Regulation 3.99,
recommended to the Board of Governors that he be
Stripped of tenure and discharged from his position of
professor. App. at 940. The Panel Report stated:
Professor San Filippo has exploited, threatened
and been abusive of individuals who have worked
under him in a professional ca acity. In addition,
we find that Professor ean Filippo has
demonstrated a serious lack of integrity in his
professional dealings. His excellent research
record and his contribution to the University are
laudatory, and were considered by the Panel in
reaching its decision. The Panel unanimously
10... The Panel reported Dr. San Filippo’s response
that he did not adhere to his department chair’s order
not to permit additional graduate students to work in his
lab because Dr. San Filippo thought that it would have
been "the death of his research program, and that [the]
memo was unconstitutional, in violation of the principles
of due process and academic freedom, and sections of
the AAUP Bargaining Agreement." App. at 938-939.
Deel
20a
recommends, however, that Professor San
Filippo be dismissed from the University.
App. at 1031.
After reviewing the evidence and hearing oral
argument as to each charge sustained by the Panel, the
Board, one member dissenting, affirmed the Panel’s
conclusions and ordered Dr. San Filippo’s immediate
dismissal. It concluded that all the sustained charges
evidenced "a failure to maintain standards of sound
scholarship and competent teaching.” App. at 1036. In
sustaining ethical charges 1a, 1d, and le with respect to
Dr. San Filippo’s abuse and exploitation of the visiting
scholars, the Board relied in part on a portion of the
AAUP’s Statement on Professional Ethics set forth in
University Regulation , 3.91 concerning a_professor’s
treatment of students. I App. at 1033. The Board,
11. That portion of the AAUP’s Statement in
Regulation 3.91 states:
As a teacher, the professor encourages the
free pursuit of learning in his students. He
holds before them the best scholarly
standards of his discipline. He
demonstrates respect for the student as an
individual, and adheres to his proper role
as intellectual guide and counselor. He
makes every reasonable effort to foster
honest academic conduct and to assure
that his evaluation of students reflects
their true merit. He respects the
confidential nature of the relationship
between professor and student. He avoids
any exploitation of students for his private
advantage and acknowledges significant
assistance from them. He protects their
academic freedom.
App. at 976.
2la
however, did not expressly rely on the AAUP Statement
in sustaining the other charges against Dr. San Filippo.
The Board reasoned that, "although the conduct
involved in each of these charges is not specifically
enumerated in the national AAUP’s Statement on
Professional Ethics[,a]ll of these charges flow directly
out of Professor San Filippo’s activities as a scholar and
teacher and constitute serious ethical violations of his
responsibilities in these areas." App. at 1036.
IV.
The district court had subject matter jurisdiction
over this case under 28 U.S.C.A. 1331 (West Supp.
1991)(federal question) and 28 US.C.A.
1343(a)(3)(West Supp. 1991)(civil rights). We have
appellate jurisdiction over the University’s appeal from
the interlocutory order granting Dr. San Filippo partial
summary judgment on his void for vagueness claim
under 28 U.S.C.A. 1292(b)(West Supp. 1991).
Federal Rule of Civil Procedure 56 states that the
moving party is entitled to summary judgment upon a
Showing "that there is no genuine issue as to any material
fact and that the moving party is entitled to summary
judgment as a matter of law." Fed. R. Civ. P. 56(c); see
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). Our review of the district court’s order granting
partial summary judgment is plenary. International
Union, UMW v. Racho Trucking Co., 897 F.2d 1248,
1252 (3d Cir. 1990).
In undertaking that review, we look first to the
record to determine whether Dr. San Filippo has
produced evidence that would sustain his claim that the
University’s dismissal standards were void for vagueness.
The district court’s application of the void for vagueness
doctrine to the University’s dismissal standards is purely
an issue of law subject to our plenary review. Id. We
22a
will assess Dr. San Filippo’s claim in light of the legal
principles set out in the cases involving attacks by
discharged public employees upon dismissal standards
as unconstitutionally vague to determine if he is entitled
to summary judgment as a matter of law.
V.
Rutgers argues that its dismissal regulations
incorporate the AAUP Statement on Professional Ethics
that is set out in Regulation 3.91 and relied on in part by
the Board in its decision to discharge Dr. San Filippo.
We reject that argument and instead agree with the
district court that the Statement on Professional Ethics
that appears in Regulation 3.91 is not incorporated into
Regulation 3.93, the regulation setting forth the
permissible bases for the dismissal of tenured faculty.
We do so essentially for the reasons that the district
court set forth in its published opinion. See San Filippo,
743 F. Supp. at 333-37.
That conclusion, however, is not dispositive ot
Dr. San Filippo’s void for vagueness claim. The question
remains whether the dismissal standards set forth in
Regulations 3.93 and 3.94, typescript supra at 9 n.6,
absent incorporation of the ethical standards set forth in
Regulations 3.91, were void for vagueness. Our task in
deciding this question is complicated by the way the
parties have presented their arguments, both here and in
the district court. In both fora they devoted most of
their attention to the incorporation question. They
devoted little attention to the remaining question, 1.e.,
whether the dismissal regulations absent 3.91 are void
for vagueness.
The University, in the district court and in its
appellate brief, did mention the argument that its
general standard of "sound scholarshi and competent
teaching," absent incorporation of egulation 3.91,
could withstand a void for vagueness attack when
considered in the context of the academic community's
23a
Shared professional standards. See Brief for Appellant
at 23-4. Dr. San Filippo also argued this issue before the
district court and devoted a section of his appellate brief
to it. See Brief for Appellee at 35-45. Thus,
although the parties mainly focused on the incorporation
issue, there is no unfairness to Dr. San Filippo in
considering whether he has produced evidence that
could show the University’s dismissal standards, absent
Regulation 3.91, are unconstitutionally vague.
Additionally, the district court had an Opportunity
to. consider whether the University’s discharge
regulations absent Regulation 3.91 are void for
vagueness and it did so. After concluding that
Regulation 3.91 was nat incorporated into the
University’s dismissal regulations so that purely ethical
violations cannot be considered a dismissible offense,
the district court also concluded that the dismissal
regulations absent Regulation 3.91 were void for
vagueness. San Filippo, 743 F. Supp. at 338. This is
evidenced by the district court’s statement that "[a]s
applied to the conduct charged in this case, failure to
maintain standards of sound scholarship and competent
teaching’ is void for vagueness." Id.
Under these circumstances, we believe it is both
fair and appropriate for us to consider whether the
general dismissal standards in Regulations 3.93 and 3.94,
absent incorporation of the ethical standards in
Regulation 3.91, are unconstitutionally vague.
The due process clause of the Fourteenth
Amendment says that no state shall "deprive any person
of life, liberty, or property, without due process of law...
- US. Const. amend. XIV, 1. Due process
requirements apply to Dr. San Filippo becuse his
tenured faculty position is a property interest. In
12. Of course, regardless of the interests involved, no
procedural due process is required unless state action is
involved in the deprivation of property. It is clear that
24a
Board of Regents v. Roth, 408 U.S. 564, 571 (1972), the
Supreme Court of the United States said that in
determining whether there is a_ property interest
involved, and thus whether due process requirements
apply, courts must look to the nature of the interest
involved. "[P]roperty interest protected by procedural
due process extend well beyond actual ownership of real
estate, chattels, or money." Id. at 572. Whenever a
"person’s good name, reputation, honor, or integrity is a
at stake because of what the government is doing to
him," id. at 573, a property interest is involved and due
process requirements apply. It follows from these
principles that a tenured university professor has a
property interest in his position, and thus cannot be
deprived of that position without due process. sce
Slochower v. Board of Higher Educ., 350 U.S. 551, 559
(1956)(summary dismissal of tenured professor violated
due process right); Morris v. Clifford, 903 F.2d 574, 576
(8th Cir. 1990)(tenured faculty member has
constitutionally sewentey property right); Yatvin_v.
Madison Metro. School Dist., 840 F.2d 412, 416 (7th Cir.
1988)("A tenured professor in a public university has a
Fourteenth Amendment property right in his job; the
right is created by his tenure contract with the
university"); Agarwal v. Regents of Univ. of Minn., 788
F.2d 504, 507 n.2 (8th Cir. 1986)(same); Harden_v.
Adams, 760 F.2d 1158, 1167 (11th Cir.)(same), cert.
denied, 474 U.S. 1007 (1985). Cf. Perry v. Sindermann,
408 U.S. 593, 599-601 (1972)(employment contract
providing professor could only be terminated for cause
constituted pygperty right protected by Fourteenth
Amendment).
Rutgers, as a state university, is a state actor. No party
has contended otherwise.
13. Strangely, no case in this Circuit specifically states
that a tenured — rofessor has a_ property
interest in his position. Cf. Unger v. National Residents
Matching Program, 928 F.2d 1392, 1397-99 (3d Cir.
1991)(citing Yatvin in discussion of property rights
25a
Generally, cases involving dismissals in violation
of the principles set out in Roth involve pure procedural
due process challenges concerning unfairness in the
manner of dismissal. The district court has yet to rule on
Dr. San Filippo’s pure procedural due process claim and
that claim is not before us on this interlocutory appeal.
Dr. San Filippo’s void for vagueness claim, however,
poses a different problem. It asserts violation of
procedural due process apart from the manner in which
he was dismissed. He claims the standards in the
University’s dismissal regulations are so broad and
general that they did not put him on notice that he could
be dismissed for engaging in the conduct with which he
was charged.
The void for vagueness doctrine arose as an
aspect of Fourteenth Amendment due process in the
context of criminal statues because it was thought unfair
to punish persons for conduct which they had no notice
could subject them to criminal punishment. See
Connally, v. General Constr. Co., 269 U.S. 385, 391
(1926).** The doctrine has been extended to civil cases.
created by contracts with state entities); Bradley _v.
Pittsburgh Bd. of Educ., 913 F.2d 1064, 1076 (3d Cir.
1990)("property interest in employment exists where
State law supports a claim of entitlement to continued
employment’).
14. We note that the void for vagueness doctrine
Should be distinguished from the related doctrine of
overbreadth which is not at issue here but often arises in
conjunction with void for vagueness in cases where First
Amendment free expression:is at issue. The overbreadth
doctrine permits a person who is not himself injured to
raise the constitutional rights of others. See Kreimer v.
Bureau of Police, No. 91-5501, slip. op. at 57 (3d Cir.
Mar. 23, 1992). Asa practical matter, it is a standing
doctrine. The void for vagueness doctrine, on the other
hand, requires the person raising it to show that he
26a
See A.B. Small Co. v. American Sugar & Refining Co.,
267 US. 233 (1925); Boutilier_v. Immigration &
Naturalization Serv., 387 U.S. 118 (1967). It has further
been applied in civil cases involving the discharge of
public employees. See Arnett v. Kennedy, 416 U.S. 134
(1974). Lesser degrees of specificity are required to
overcome a vagueness challenge in the civil context than
in the criminal context, however, because the
consequences in the criminal context are more severe.
Village of Hoffman Estates v. The Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 498-99 (1982).
The doctrine is based on the idea of fairness. Its
purpose is only to give “fair warning" of prohibited
conduct. Colten v. Kentucky, 407 U.S. 104, 110 (1972).
The relevant inquiry is whether the statute or standard
is:
Sufficiently explicit to inform those who are
subject to it what conduct on their part will
render them liable to its penalties . . . consonant
alike with ordinary notions of fair play and the
himself has been injured by the overly broad language.
See Rode v. Dellarciprete, 845 F.2d 1195, 1200 (3d Cir
1988)(statute must be vague as applied to person
challenging it).
In the university context, First Amendment issues
sometimes arise with respect to academic freedom.
This, however, does not affect our decision today. Dr.
San Filippo does not raise an overbreadth challenge to
the University regulations. He was not dismissed, nor
does he allege that he was dismissed, for any reason
relating to ge that could be considered a free
expression issue. We note that he does make a First
Amendmert retaliation claim unrelated to his void for
vagueness claim. That claim has not yet been
considered by the district court and is not presently
before us.
27a
settled rules of law. And a statute which either
forbids or requires the doing of an act in terms so
vague that men of common intelligence must
necessarily guess at its meaning and differ as to
its application violates the first essential of due
process of law.
Connally, 269 U.S. at 391; see Bradley v. Pittsburgh Bd.
of Educ., 910 F.2d 1172, 1177 (3d Cir. 1990). It is well
established the inquiry is undertaken on a case by case
basis. The statute or standard is examined as to whether
it is vague as applied to the affected party. See United
States v. Mazurie, 419 U.S. 544, 550 (1975).
In the criminal context, the Supreme Court has
held that since vagueness attacks are based on lack of
notice, "they may be overcome in any specific case where
reasonable persons would know their conduct puts
[them] at risk" of punishment under the statute.
Maynard v. Cartwright, 486 U.S. 356 (1988)(definition of
mitigating circumstance in Oklahoma death penalty
Statute that murder was "especially heinous, atrocious, or
cruel" held unconstitutionally vague). Thus, to be
constitutional, criminal statutes need only give "fair
warning" that certain conduct is prohibited. Colten, 407
U.S. at 110. Simply because a criminal statute could
have been written more precisely does not mean the
Statute as written is unconstitutionally vague. United
States v. Powell, 423 U.S. 87, 94 (1975). Certainly if such
general standards in criminal statutes are sufficiently
precise to withstand attack as void for vagueness,
analogous standards in the civil context where less
specificity is required satisfy due process.
In the public employment context, the Supreme
Court has reiterated that the vagueness doctrine is based
on fair notice that certain conduct puts persons at risk of
discharge. Such standards are not void for vagueness as
long as ordinary persons using ordinary common sense
would be notified that certain conduct will put them at
risk of discharge. Arnett, 419 U.S. at 159. Accordingly,
28a
broad public employee dismissal standards have been
upheld against void for vagueness attacks. The Arnett
Court upheld the general standard "such cause as will
promote the efficiency of the service" for dismissal of
civil service employees. Id. It stated:
"[T]here are limitations in the English language
with respect to being both specific and
manageably brief, and it seems to us that
although the prohibitions may not satisfy those
intent on finding fault at any cost, they are set out
in terms that the ordinary person exercising
ordinary common sense can _ sufficiently
understand and comply with, without sacrifice to
the public interest. [T]he general class of offense
to which . . . [the provisions are] directed is
plainly within [their] terms. . ., [and they] will not
be struck down as vague, even though marginal
cases could be put where doubts mights arise.’
United States _v. Hariss, 347 U.S. 612, 618
(1954)."
Id. (quoting Civil Serv. Comm’n v. National Ass’n_of
Letter Carriers, 413 U.S. 548, 578-79 (1973)); see
Grayned_ vy. City of Rockford, 408 U.S. 104, 110
(1972)("Condemned to the use of words, we can never
expect mathematical certainty from our language.").
The Court noted that employees could be guided, in
using their common sense, by "longstanding principles of
employer-employee relationships. like those developed
in the private sector." Id. at 160.
15. The Arnett court also stated that the employees
in that case had the benefit of a personne] manual that
added to the general standard. We do not believe the
manual’s existence was the basis for the court’s holding,
however. It simply acknowledged the manual in a
footnote to demonstrate that it could aid employees in
ascertaining the "longstanding principles" of employer-
employee relationships to guide them in their behavior.
See Arnett, 416 U.S. at 160 n.24. Further, the language
29a
In cases specifically invoiving dismissal of
teachers or professors, the courts have upheld general
Standards against vagueness attacks. In Wishart. v.
McDonald, a tenured sixth grade public school teacher
was discharged when he carried, dressed, undressed and
caressed a mannequin in public view on his property
located in the town in which he taught. The school’s
dismissal regulation provided a tenured teacher could be
dismissed only for "conduct unbecoming a teacher... or
other good cause." Id. at 1111. The court, applying
Arnett, held the regulation was not void for vagueness as
applied to Wishart because his behavior was fairly
identifiable by an ordinary person as conduct
unbecoming a teacher. Therefore, the regulations gave
him notice that his conduct put him at risk of dismissal.
Id. at 1116. The court stated: "The choice between
specific rules and general standards is a difficult one;
each has its unique costs. The real safeguard under a
general standard is the common-law adjudicatory
process and judicial review." Id. at 1117 (citation
omitted).
In Garrett v. Matthews, 474 F. Su p. 594 (N.D.
Ala. 1979), aff'd, 625 F.2d 658 (Sth Cir. 1980 (per
curiam), a tenured university professor found to have
been insubordinate in not Opening mail from his
superior, in failing to comply with his superior’s request
to supply a list of publications and in failing to keep
office hours was dismissed under an "adequate cause"
standard. The court upheld the professor’s dismissal
concluding that the term "adequate cause" was no more
vague than the standard approved by the Supreme
Court in Arnett. Id. at 599; see Fowler v. Board of
Educ., 819 F.2d 657, 664-65 (applying Arnett and
in the manual shows the breadth of the regulation but
does not make it any more specific. See id. The court in
Wishart v. McDonald, 500 F.2d 1110, 1116 (1st Cir.
1974) similarly construed the Arnett holding.
30a
Wishart in upholding dismissal standard of "conduct
unbecoming a teacher’).
Under these decisions, while Rutgers dismissal
regulations are broad and general, they are not
unconstitutionally vague. Dismissal for failure to
maintain "standards of sound scholarship and competent
teaching" does not fail to specify any standard for
dismissal but rather provides a standard which
encompasses a wide range of conduct. We reject the
district court’s narrow reading of this standard based on
the absence of a "catch-all" provision in Rutgers’
dismissal regulations, and embrace the “common sense”
approach of Arnett and its progeny. Professors at
Rutgers can evaluate their behavior’s conformity to the
dismissal regulations. A reasonable, ordinary person
using his common sense and general knowledge of
employer-employee relationships would have fair notice
that the conduct the University charged Dr. San Filippo
with put him at risk of dismissal under a regulation
stating he could be dismissed for "failure to maintain
standards of sound scholarship and competent teaching."
Regulation 3.94. He would know that the standard did
not encompass only actual teaching or research skills.
Here, all of Dr. San Filippo’s charged actions sprang
from his role as a faculty member at the University. It is
not unfair or unforeseeable for a tenured professor to be
expected to behave decently towards students and
coworkers, to comply with a superior’s directive, and to
be truthful and forthcoming in dealing with payroll,
federal research funds or applications for academic
positions. Such behavior is required for the purpose of
maintaining sound scholarship and competent teaching.
The academic community can reasonably conclude that
otherwise the educational atmosphere is likely to
become so tainted and disturbed that it would become
impossible to "maintain standards of sound scholarship
and competent teaching." Id We find further support of
our holding in the following statement by the Panel:
3la
Through these proceedings, the Panel has
felt particular concern for pressures on all of the
Chinese scholars that have been involved in the
matter before the Panel. Coming to a foreign
land to study can be unsettling enough, but to
become embroiled in a dismissal proceeding can
do nothing to aid their scholarship or personal
well-being, or the reputation of the University. -
We urge the University to avail itself to the fullest
to be supportive of foreign scholars and to be
sensitive to the pressures that can be placed on
them, both willingly and unwittingly, because of
their inexperience with our culture and their
dependence on their faculty sponsors and the
University as a whole.
App. at 942.
Thus, Rutgers’ dismissal regulations are not void
for vagueness, even thought they do not incorporate the
ethical standards set out in Regulation 3.91. The general
standards of Regulations 3.93 and 3.94 are sufficient to
Survive a void for vagueness attack. Were we to accept
Dr. San Filippo’s argument that 3.93 and 3.94 were void
for vagueness absent 3.91, the University could never
discharge Dr. San Filippo, or any other tenured
professor, for any conduct nor directly involving teaching
or research short of committing a crime of moral
turpitude. We are unwilling to countenance such a
result. Indeed, its starkness may explain the district
court’s evident dissatisfaction for its own result. See San
Filippo, 743 F. Supp. at 338 (stating that Dr. San
Filippo’s charged conduct is "alien to any concept of how
civilized professionals should comport themselves").
We think that unpalatable result arose out of the
district court’s failure to distinguish the lack of notice
inherent in the void for vagueness doctrine from the
substantive due process issues presented by a discharge
not rationally related to, or covered by, general
standards of acceptable conduct. Its confusion of these
a
32a
principles is traceable to the way Dr. San Filippo
presents his void for vagueness claim. As set out in his
Third Amended Complaint, Dr. San Filippo’s void for
vagueness claim confuses two distinct due process
themes. See typescript, supra at 3 n.2. The theme that
dominates is void for vagueness but, as stated and
presented to both the district court and us, it echoes a
second theme with overtones of pure substantive due
process. The sounds of substantive due process echo
back most clearly in Dr. San Filippo’s argument that the
University’s decision to strip him of tenure was based on >
ethical standards that were not a part of his contract and
that his actions towards the visiting Chinese scholars
bore no relation to sound scholarship or competent
teaching, even if we suppose that those broad, general
concepts had been more specifically defined by the
ethical standards whose incorporation into Rutgers
dismissal standards we have already rejected. | This
confuses the two doctrines. In a void for vagueness
attack, the claim is that the standard is so vague that it is
no standard at all and that lack of a standard caused the
injury. In a substantive due process attack, the claim is
that the standard was not rationally applied to your
conduct and thus you were injured.
The Supreme Court’s decision in Regents of
Univ. of Mich. v. Ewing, 474 U.S. 214 (1985) provides
guidance. There, in considering whether the University’s
refusal to allow a student to retake an important
examination violated the student’s due process rights,
the Court stated:
When judges are asked to review the substance of
a genuinely academic decision, such as this one,
16. Here, we note that although the University’s
decision was based in part on ethical charges it
considered to violate Regulation 3.91, it was as well
dependent on charges the University specified violated
Regulations 3.93 and 3.94.
33a
they should show great respect for the faculty’s
professional judgment. Plainly, they may not
Override it unless it is such a substantial
departure from accepted academic norms as to
demonstrate that the person or committee
responsible did not actually exercise professional
judgment. Cf. Youngberg v. Romeo, 457 USS.
307, 323 (1982).
Considerations of profound importance
counsel restrained judicial review of the
substance of academic decisions.
Id. at 225 (footnote omitted.) Additionally, several
circuits have considered substantive due process claims
by dismissed tenured professors or teachers. See
Newman v. Burgin, 930 F.2d 955, 962-63 (1st Cir.
1991)(arbitrary decision significantly affecting tenured
professor’s employment status may violate substantive
due process); Morris v. Clifford, 903 F.2d 574, 577 (8th
Cir. 1990(recognizing tenured professor’s due process
right to be free from discharge for "arbitrary and
Capricious" reasons); Agarwal, 788 F.2d at 507 (same)
McEnteggart v. Cataldo, 451 F.2d 1109, 1111 (1st Cir.
1971)(substantive due process challenge to college’s
failure to renew non-tenured professor’s contract
required proof that reasons "were unrelated to the
educational process or to working relationships within
the educational institution"), cert. denied, 408 U.S. 943
1972). Cf Bello v. Walker, 840 F.2d 1124, 1129 (3d
ir.)(deliberate and arbitrary abuse of government
power violates substantive due process), cert. denied,
488 U.S. 868 (1988).
17. On the general subject of substantive due process
in cases involving dismissals of public employees, see ;
Henry H. Perritt, Jr., Employee Dismissal Law and
Practice 6.13 (3d ed. 1992).
ete
34a
The district court and Dr. San Filippo have not
fully recognized the distinctions among his constitutional
right to fair notice that the charges against him could
subject him to dismissal and his substantive due process
right to be safe from arbitrary and capricious discharge
for conduct that has no rational pglation to his duties as a
tenured university professor. Dr. San Filippo’s
arguments on void for vagueness disguise the differences
between a state actor’s adoption of a statute or a
regulation that is so broad it fails to give notice as to
what it prohibits with a failure to apply those standards
rationally to his conduct. Thus, he fogs the distinctions
among federal remedies for violation of substantive and
procedural due process and failure to meet the due
process standards of fair notice implicit in the void for
vagueness doctrine, as that doctrine is applied to
discharges from public employment.
Whether Dr. San Filippo has alleged or can
establish that the University is liable for wrongfully
discharging him on the basis of substantive due process,
some other constitutional tort, or breach of state
contract law has not yet been decided by the district
court. Those alternatives are not before us on this
certified interlocutory appeal.
Likewise, none of Dr. San Filippo’s other claims
are now before us. They are: that his dismissal was in
retaliation for activity protected under the First
Amendment in violation of the United States and New
Jersey constitutions, that his dismissal violated his right
18. It may also be important to avoid confusing a
claim for a deprivation of substantive due process and
Dr. San Filippo’s express claim under state contract law
not to be deprived of tenure unless he acts in a manner
that his tenure contract, reasonably read, prohibits and
assigns as a ground for discharge. This claim is not
presently before us because the district court has not yet
ruled on it.
35a
to equal protection of the law under the United States
and New Jersey constitutions, that the conduct of the
Senate Panel Hearing violated his right to procedural
due process under the United States and New Jersey
constitutions, and the pendent state claim that his
dismissal was a violation of his contract with the
University.
On remand, if the district court decides that none
of these other federal claims are viable and that Dr. San
Filippo has not stated or shown a substantive due
process claim by reason of a wholly arbitrary deprivation
of his tenure rights or otherwise brought a valid section
1983 claim, it will, of course, be necessary for the district
court to exercise its discretion to decide whether to hear
Dr. San Filippo’s pendent state claim, in accordance
with the standards set out in United Mine Workers of
America v. Gibbs, 383 U.S. 715, 725-28 (1966).
VI.
We will reverse the district court’s grant of partial
summary judgment in favor of Dr. San Filippo on his
void for vagueness claim and its denial of the
University’s motion on this same claim and remand this
case for further proceedings consistent with this Opinion.
A True Copy:
Teste:
Clerk of the United States Court of
Appeals
for the Third Circuit
36a
APPENDIX B
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOSEPH SAN FILIPPO, JR.,
Plaintiff,
Civil Action
VS. : No. 88-2575
OPINION
MICHAEL BONGIOVANN],
ANTHONY S. CICATIELIJO,
ADRIENNE S.ANDERSON,
DONALD M. DICKERSON, :
FLOYD H. BRAGG, NORMAN
REITMAN, individually and
as members of the Board of
Governors of Rutgers
University, and RUTGERS,
THE STATE UNIVERSITY,
Defendants. :
APPEARANCES: Leon Friedman, Esq.
148 East 78th Street
New York, New York 10021
-AND-
Stuart S. Ball, Esq.
BALL, LIVINGSTON &
TYKULSKER
108 Washington Street
Newark, New Jersey 07102
(Attorneys for Plaintiff)
37a
CARPENTER, BENNETT
& MORRISSEY
Three Gateway Center
100 Mulberry Street
Newark, New Jersey 07102
By: Linda B. Celauro, Esq.
(Attorneys for Defendants)
BEFORE: BARRY, DISTRICT JUDGE
INTRODUCTION
It is a disgrace that Rutgers, the State University
of New Jersey, cannot terminate a faculty member when
he or she committed ethical violations of a high- order
because, for whatever reason, Rutgers has not seen fit to
adopt regulations which would permit it to do so. It is
similarly a disgrace that 46 days of hearings which
culminated in a 44 page report recommending plaintiff's
dismissal because he violated the basic ethical tenets ot
the profession as evidenced by his exploitation of and
threatening and abusive behavior towards individuals
who worked under him and his lack of integrity in
professional dealings, a report sustained by the Board of
Governors in a 60 page opinion, must turn out to be a
total waste of time and _ taxpayers’ money. Finally, it is a
disgrace that, having committed the gross ethical
violations seen here, plaintiff will, most likely, return to
Rutgers, although that return will hardly be the return of
a conquering hero.
FACTS
In 1971, rn San Filippo, Jr., plaintiff herein,
was employed by Rutgers as an untenured Assistant
Professor of Chemistry. In 1977, he earned tenure and
became an Associate Professor of Chemistry and in 1984
achieved the rank of full Professor. Rutgers does not
take issue with his characterization of himself as not
only a respected scientist, an accomplished academic,
38a
and a prolific writer, particularly in his specialty of
organometallic chemistry, but also as a researcher who
had the ability to obtain substantial monies in research
grants and more than one million dollars of scientific
equipment for the University (Third Amended Comp. at
12). Certainly, however, aside from any professional
prowess, Professor San Filippo had to _ have been a
thorn in Rutgers’ side, continually voicing complaints
and filing grievances and arbitrations concerning a
variety of matters and filing at least three legal actions
against the University aside from this action, conduct
which played no explicit part in Rutgers’ decision to
terminate him.
Pursuant to University Regulations 3.94, by letter
dated January 6, 1986, Dean Tilden Edelstein, Dean of
Rutgers’ Faculty of Arts and Sciences, New Brunswick,
formally advised Professor San Filippo that various
complaints had been made against him concerning his
mistreatment of visiting Chinese scholars who were
“sebaemen, research in San Filippo’s laboratories.
ollowing Professor San Filippo’s response in which, tor
the most part, he denied the allegations and attempted
to justify those he admitted, on February 26, 1986, Dean
Edelstein advised Provost Kenneth W. Wheeler of the
allegations of "harassment, exploitation and attempted
exploitation, and fraud," all allegations "so serious” that,
if sustained, warrant dismissal. (Pack Aff., Exh. A). The
1. Professor San Filippo apparently regarded
himself as knight errant amicus at Rutgers. Counsel
described some of his activities: he "often expressed
himself about what he considered dangerous, improper
or even illegal activities at the school"; he "threatened to
inform the authorities"; he "constantly reminded [the
Chemistry Department] of the requirements of federal
law"; and he “had numerous disputes with senior
department members ... many of which led to his filing of
rievances ..." Plaintiffs Memo. in Opposition to
ummary Judgement at 8-10.
39a
tenured faculty of the Department of Chemistry passed
a resolution, concurring.
On April 2, 1986 Provost Wheeler wrote to Dr. T.
Alexander Pond, Executive Vice President and Chief
Academic Officer, Stating that the allegations constitute
‘a gross violation of the ’Statement of Professional
Ethics" contained in University Regulation 3.91 and are
totally unacceptable in an academic community." (ld.,
Exh. B). He recommended that Professor San Filippo
be formally notified of the allegations which, in his view,
warranted dismissal. On August 1, 1986, Dr. Pond
advised Professor San Filippo that "the evidence is
persuasive that you have violated the basic ethical tenets
of our profession and that, in doing so, you have failed in
your obligations to this institution." “(First Cole Aff.,
Exh. A). On September 9, 1986, after having given
Professor San Filippo yet another Opportunity to
respond, Dr. Pond recommended to then President
Edward J. Bloustein that appropriate action be taken to
recommend Professor San Filippo’s dismissal to the
Board of Governors.
Pursuant to Regulation 3.97, on October 1, 1986
President Bloustein issued the formal charging
document advising San Filippo that he has "violated the
basic ethical ‘tenets of our profession, including those
standards of apc yr ethics set forth in University
Regulation 3.91, and that, in doing so, you have failed in
aed responsibilities to this University." (Exh. 1 to
efendants’ Answer to First Amended Comp.) The
charges, President Bloustein continued, "meet the
Standards for dismissal set forth in University
Regulations 3.93, 3.94, 3.97, and 3.99 and constitute
gross neglect of established university obligations
appropriate to your appointment and evidence a failure
to maintain standards of sound scholarship and
competent teaching ...." Id.
The charges were detailed by President
Bloustein:
40a
“- Your treatment of scholars visiting trom
the People’s Republic of China and a Chinese
Teaching Assistant violated the standards of
professional ethics required of all faculty
members. More specifically, your treatment with
respect to these individuals, as set forth more
fully in the attached documents, is as follows:
a. You took advantage cof your
professorial position and exploited Mr. Hetian
Gao and Mr. Changhe Xiao, both visiting
scholars from the People’s Republic of China, by
directing them or by leading them to believe that
they had no choice but to perform domestic work
for you, such as garden work and indoor and
outdoor cleaning work during the period May
* through July 1988.
b. You attempted to exploit Mr. Yaru
Zang, also a visiting scholar from the People's
Republic of China, by attempting to make her
perform domestic work for you.
G. You exploited Messrs. Gao and
Xiao by representing that they would be provided
health benefits coverage and that you would
deduct $700.00 from the salary to be paid each of
them in order to cover the costs of such benefits.
Despite deducting such sums, you did not provide
coverage to either Mr. Gao or Mr. Xiao.
d. During the period of time that the
above-named visiting Chinese scholars were at
Rutgers, you threatened and harassed those
individuals -by repeatedly stating that you would
send them back to China and by directing abusive
language toward them.
6. On or about March 31, 1986, you
interrupted without sufficient cause a laboratory
4la
class being conducted by Teaching Assistant,
Zong Ping Chen. You continued that incident by
treating her in an unprofessional, threatening and
abusive manner, within the hearing of other
individuals, including her students.
2. On or about July 8, 1985, you directed Mr.
Changhe Xiao, who had injured himself while
doing maintenance work at your house, to’
identify himself as Mr. Peng Zhou in Middlesex
Hospital in order to have Mr Xiao covered by
Mr. Peng Zhou’s medical insurance.
a You encouraged and permitted
individuals working under your direction and
supervision to submit false time reports and to
take inappropriate charges against certain
University accounts. Specifically:
a. In or about August 1985, Ms.
Abbie Lieber, a secretary who works solely under
your supervision submitted a time report form,
urportedly to compensate Mr. Hetian Gao and
r. Changhe Xiao for extra computer (and/or
library) work supposedly performed by them, but
you told them that the payment was actually to _
provide them with money to purchase health
benefits from the Chinese consulate. Both.
Messrs. Hetian Gao and Changhe Xiao.
thereafter received $100.00 each, charged -
against your NSF grant, despite the fact that you
knew that they had not performed any extra work
for the money. (Note the previous promise to
provide health benefits recited in item 1.c. above.)
b. Ms. Marilyn Brownawell, who
works directly under your supervision, submitted
time report forms for the week ending August 17,
1984. She reported and was paid for 40 hours of
work for that period, charged against the
Chemistry Department’s mass spectrometer
42a
account, even though you knew that she did not
perform any work related to the mass
spectrometer Or indeed any compensable work
for Rutgers of any kind during that period.
4. You violated professional and academic
standards and exploited foreign visitors to the
University by bringing to the University as post-
doctoral fellows-Chinese scholars who you knew
did not have appropriate credentials and by
charging the stipends of such individuals, who did
not possess doctoral degrees, to your NSF grant
as post-doctoral fellows. Subsequently you
supported these individuals for admission to the
graduate program in Chemistry, a fact which
clearly established that they did not have the -
credentials to be post-doctoral fellows.
> During Fall 1985, you submitted an
application for admission to the graduate
program, including letters of reference, on behalt
of Mr Peng Zhou, one of the individuals referred
to in #4 above. One of the letters of reference
submitted by you purportedly was written and
signed by Liu Guozhi In fact, that letter was not
prepared by Liu Guozhi, and you had knowledge
of that fact and did not make it known when you
submitted the letter.
6. On December 16, 1985, Professor Robert
Boikess, Chair of your department, ee
instructed you not to permit Mr. Peng hou, Mr.
Con-Yuan Guo, or any other graduate student
except those already associated with your
research group, to work in your laboratory,
pending __ investigation of allegations of
exploitation and harassment lodged against you
by—visiting Chinese scholars. Despite these
specific instructions, you subsequently permitted
on-Yuan Guo, Zhen-min He, and Peng Zhou to
perform work in your laboratory."
43a
President Bloustein advised Professor San
Filippo that he was entitled to a hearing and would
receive a hearing upon request. If there was no request
for a hearing, however, President Bloustein would
recommend to the Board of Governors that Professor
San Filippo be dismissed from the University. A hearing
was requested.
The evidentiary phase of the hearing commenced
on March 30, 1987 before a panel of five of Professor
San Filippo’s academic peers who were members of the
Rutgers University Senate - Noel Da Costa, Mary
Fetzee, Richard Hixson, David Wilder, and Ted H.
Szatrowski, who served as Chair. The evidentiary phase
alone consumed 250 hours over 46 days - only 16 of
which were used by the University before it rested its
case - and generated 5,800 pages of testimony from 33
witnesses and more than 400 exhibits. The Senate
Panel, in a 44 page report issued on December 21, 1987,
found that all or parts of Charges 1(a), 1(c), 1(d), 1(e), 2,
3(b), 4, 5 and 6, as set forth in President Bloustein’s
letter of October 1, 1986 were "true". (Exh. 2 to
Defendants’ Answer to First Amended Comp. at 42).
The panel concluded that Prefessor San Filippo
violated the basic ethical tenets of our
profession, including those standards of
pe ey ethics set forth in University
egulation 3.91 and that, in doing so,
Professor San Filippo failed in his
responsibilities to the University. The
Panel concludes that the ’matters charged
and proved’ meet the standards for
dismissal set forth in University
Regulations 3.93, 3.94, 3.97, and 3.99 as
evidenced by his exploitation of_ and
threatening and abusive behavior towards
individuals who worked under him in a
rofessional capacity and his lack of
integrity in professional dealings. Id.
44a
Based on findings of exploitation, threats, abuse, and
"serious lack of integrity", the panel, while conceding
Professor San Filippo’s “excellent record", unanimously
recommended dismissal._Id. at 43.
After reviewing the sufficiency of the evidence as
to each charge and hearing oral argument, the Board of -
Governors, in a 60 page opinion issued on May: 13, 1988
affirmed - one member dissenting - the recommendation
of the Senate Panel and directed Professor San Filippo’s
immediate dismissal. (Exh. B to First Amended
Comp.). é
The Board of Governors dismissed Professor San
Filippo on the ground that the charges which it sustained
evidenced a failure to maintain standards of sound
scholarship and competent teaching, a basis for dismissal
under Regulations 3.93, 3.94, 3.97, and 3.99. Those -
‘classes of behavior which define the standards of "sound
scholarship and competent teaching’, it believed, are set
forth in Regulation 3.91, which adopted the Statement
on Professional Ethics itself adopted by the national
American Association of University Professors
("AAUP"). The Board set forth those portions of
Regulation 3.91 it believed provided the relevant
definition: -
3.91. Since the very nature of a
university and its value to society depend
upon the free pursuit and dissemination of
knowledge and free artistic expression,
every member of the faculty of this
University is expected, in the classroom
and studio, in research and professional
publication, freely to discuss subjects with
2 The dissenting member found "clearly sufficient
evidence" to sustain the charges but believed the
sanction of dismissal was too severe. Id. at 63.
- 45a
which he is competent to deal, to pursue
inquiry therein, and to present and
endeavor to maintain his opinion and
conclusions relevant thereto. In
expressing those ideas which seem to him
justified by the facts, he is expected to
maintain standards of sound scholarship
and competent teaching. He shall conduct
himself in accordance with the standards
of professional ethics set forth in
aragraph I to’ V, inclusive, of the
Sratement on Professional Ethics adopted
by the American Association of University
Professors at its annual meeting, April
1966.
Statement on Professional Ethics
* * *
Il. As a_ teacher, the professor
encourages the free pursuit of learning in
his students. He holds before them the
best scholarly standards of his discipline.
He demonstrates respect for the student ‘
as an individual, and adheres to his proper
role_as intellectual guide and counselor.
He_makes_ every reasonable effort to
foster_hones academic conduct and _ to
assure_that_his evaluation of students
reflects their true merit. He respects the
confidential nature of the relationship
between professor and student. He avoids
any exploitation of students for his private
advantage and ‘acknowledges significant
assistance from them. He protects their
academic freedom.
46a
(Emphasis in Board of Governors’ Opinion, at
51-52).
Those charges which, in the Board of Governors’
view, were the most serious, i.e. 1(a), 1(d) and 1(e),
which concerned Professor San Filippo’s order that two
Chinese scholars do gardening and cleaning at his home
and his threatening and abusive treatment of these two
scholars, plus a third, "directly fall under the prohibition
of Paragraph II of tho national AAUP’s Statement on
Professional Ethics", Id. at 52, set forth above. “The
behavior stated in these sustained charges
demonstrate[s]", the Board concluded, ‘clear
‘exploitation of students for his private advantage’ and
lack of proper ‘respect for the student as an individual’
and thereby meet the standards for a dismissible offense
under University regulations." Id. The other sustained
charges, in the Board’s view, also constitute a clear
"failure to maintain standards of sound scholarship and
competent teaching" and, therefore, also meet the
standards for a dismissible offense even though the
conduct underlying those charges was "not specifically
enumerated" in the Statement on Professional Ethics.
Id. at 53. These charges "flow directly out of Professor
San Filippo’s activities as a scholar and teacher and
constitute serious ethical violations of his responsibilities
in these areas". Id. at 55.
~ On June 13, 1988, pursuant to 42 U.S.C. 1983,
Professor San Filippo instituted this action against the
University and the six members of the Board of
Governors who voted in favor of his dismissal alleging
various violations of his rights under the United States
Constitution, violations of his corresponding rights under
the New Jersey State Constitution, and breach of
contract.
More specifically, as set forth in what is by now is
Third Amended Complaint, Professor San Filippo
alleges: (1) violation of his due process rights on the
basis of vague and uncertain University dismissal
47a
standards which did not fairly warn him that the acts of
which he was accused violated University rules and
could serve as the basis for dismissal, 27; (2) violation
of his First Amendment rights and comparable
provisions of the New Jersey Constitution by virtue of
the commencement of dismissal proceedings and his
dismissal in retaliation for his filing of lawsuits,
grievances and complaints against the University and its
employees, 28; (3) violation of his equal protection
rights and comparable provisions of the New Jersey
Constitution in that he was selectively chosen as a target
for disciplinary action, 29; (4) violation of his
procedural due process rights resulting from the conduct
of the hearing and the negotiation for additional
compensation between one or more members of the
Senate Panel and the administration while the hearing
was ongoing, 30; and (5) breach of the contract
established by Rutgers’ rules and regulations because his
dismissal was predicated upon offenses which could not
be the basis of dismissal under that contract, 31.
Defendants now move for summary judgment on
a host of grounds, to strike affidavits and certain exhibits
relied upon by Professor San Filippo in opposition to
that summary judgment motion, and, in the alternative,
to strike his claim for damages. Professor San Filippo
moves for summary judgment as to his claims that the
dismissal standards, as applied to him, were
unconstitutionally vague and that his procedural due
process rights were violated. Neither side of the case
asks me to decide the issue -- if issue it be -- of whether,
on the basis of the evidence presented, the charges
against Professor San Filippo were proven and whether,
based on the evidence as to proven charges, dismissal
was warranted.
For the reasons that follow, Professor San
Filippo’s motion for summary judgment on_ the
vagueness claim will be granted and defendants’ motion
for summary judgment on that claim will be denied.
Defendants’ motion to strike affidavits and certain
48a
exhibits wili be denied as well? and their motion to
strike Professor San Filippo’s claim for ae will be
granted in part and denied in part. iven this
disposition, the remaining motions need not and, thus,
will not be decided.
KS Affidavits submitted in conjunction with a motion
for summary judgment must contain admissible evidence
within the personal knowledge of the affiant to which he
or she is competent to testify. Fed.R.Civ.P. 56(e); Fowle
v. C&C Cola, 868 F.2d 59, 67 (3d Cir. 1989); Hlinka v.
Bethlehem Steel Corp., 863 F.2d 279, 282 (3d Cir. 1988).
Defendants have ferreted out from the hundreds of
paragraphs that comprise the three affidavits in question
and the volumes of exhibits attached thereto numerous
legal arguments and conclusions and statements not
based upon personal knowledge, as well as other
instances of purportedly inadmissible evidence. They do
not, however, separate out many statements which,
while not based on personal knowledge are, nonetheless,
helpful statements of opinion or belief that rest upon an
adequate factual foundation, see F.R. Evid. 701; and do
not distinguish many statements which are not hearsay
because they are not offered to show the truth of the
matter asserted or are otherwise admissible as
exceptions to the hearsay rule. Inadmissible evidence
can, in most instances, be excised with surgical
recision. See 10A Wright, Miller & Kane, Federal
Practice and Procedure, 2738, p.509 ("The court will
disregard only the inadmissible portions of a challenged
affidavit and consider the rest of it.") Mindful of the
admonition that evidence should not be excluded on
summary judgment on "hypertechnical grounds," Fowle,
supra, F.2d at 67, I will disregard those portions of
the affidavits that fail to comport with the standards of
Rule 56(e). Accordingly, defendants’ motion to strike
the affidavits and accompanying exhibits is denied.
49a
DISCUSSION
The Regulations Definin Dismissible Offenses Do Not
Cover and Cannot Be Interpreted To Cover the Conduct
For Which Professor San Filippo Was Dismissed.
Certainly, the ethical standards set forth in
Regulation 3.91 put Professor San Filippo on notice that
the conduct in which he engaged was impermissible.
Query: was he on notice that his unethical conduct
would, under the University’s dismissal standards, be
cause for dismissal? Stated somewhat differently, are the
ethical standards contained in Regulation 3.91, which
incorporates the AAUP Statement on Professional
Ethics, legally enforceable rules subsumed within and
otherwise defining Regulations 3.93-3.99a, the dismissal
standards? Defendants say "yes"; Professor San Filippo
says "no." The answer is clearly "no."
First, "Regulation 3.91 Concerning Professional
Ethics for Faculty Members," as 3.91, in effect since
January 1967, is entitled, never defines, nor was it
intended to define, what, if any, ethical violations are
dismissible offenses; indeed the word "dismiss" is
nowhere to be found. It sets forth, in plaintiffs phrase, a
“moral imperative" for the faculty, and nothing more.
Plaintiffs Memo. in Support of Motion for ummary
Judgment at 12. Second, when "University Regulations
-93-3.99a Concerning Procedures to be Followed in the
Dismissal Proceedings of a Tenured Faculty Member,"
as the dismissal regulations are entitled, were adopted in
September 1972, the ethical standards set forth in Reg.
3.91 and, indeed, even the word "ethics," were neither
incorporated nor referred to and, thus, violations of
4. Professor San Filippo concedes that the adoption
of 3.91 was not a "meaningless gesture" and assumes that
it can be enforced against a faculty member in ways
other than dismissal. Plaintiff's Memo. in Opposition to
Motion for Summary Judgment at 41, note 3.
S0a
those standards cannot be a basis for dismissal. Third,
an examination of the proposed, withdrawn, and
adopted amendments to the dismissal regulations over a
period of more than ten years confirms that violations of
ethical standards cannot, of themselves, be the basis of a
dismissal decision. None of this is seriously disputed.
Regulation 3.97, as Rutgers’ itself conceded in In
re: Villiers, outlines the only bases for dismissal and this,
too, is not indispute.5 3.97 states:
3.97. If the President of the University
finds reason to believe that a faculty
member should be dismissed when the
ground is that he has been convicted of a
crime involving moral turpitude, or is
incompetent, or incapacitated, or has
failed to maintain for himself standards of
sound scholarship) and competent
teaching, the President shall send the
ms Professor Villiers was charged with "gross neglect
of established University obligations appropriate to the
appointment," Reg 3.94. The charges were sustained
and he was found to have "repeatedly violated
University Regulation 3.91." Friedman Aff. Exh. 20 at 8.
Because, however, 3.97, which, Villiers held, defines the
dismissible offenses, did not give adequate notice that
the transgressions at issue -- violations 3.91 and 3.94 --
could lead to dismissal, the Board found that Villiers
could not be dismissed and imposed a lesser sanction.
Similarly, dismissal proceedings against Professor
Russell C. Leaf were dropped because of Villiers. Three
of the seven charges against Leaf charged violations only
of 3.91 (Id. Exh. 21,22). Aside from whether Villiers and
Leaf are legally binding, they provide an authoritative
interpretation of the Regulations which could thereafter
be relied upon. In a nutshell, unless one is charged with
a violation of 2.97, he or she cannot be dismissed.
Sla
faculty member a notice stating in detail
‘the charges against him and informing him
that he is entitled to a hearing if he shall
ask for it within two weeks and that, in the
absence of a request for a hearing, he may
be dismissed from the faculty.
Indeed, Rutgers continues to maintain that 3.97 alone
sets forth the bases for dismissal, arguing, however, that
Reg. 3.91 "defines" standards of sound scholarship and
competent teaching, one of the bases for dismissal set
forth in 3.97. (Defendants’ Br. in Support of motion for
Summary Judgment at 29).
And so while professor San Filippo was advised
by President Bloustein in the formal charging document
that he had "violated the basic ethical tenets of our
profession, including those standards of professional
ethics set forth in University Regulation 3.91," he was
also advised that the conduct at issue evidenced "a
failure to maintain standards of sound scholarship and
competent teaching," an offense set forth in 3.97. (Exh.
1 to Defendants’ Answer to First Amended Complaint).
Because, Rutgers’ argues, the ethical standards of 3.91
"define" standards of sound scholarship and competent
teaching, Professor San Filippo’s vagueness claim must
fail because the dismissal standard invoked here --
‘sound scholarship and competent teaching" -- is not
vague as applied to the "serious ethical violations"
committed by him, conduct which falls within the clear
proscription of the Statement on Professional Ethics.
See seresciyned Br in Support of Motion for Summary
udgment at 29).
The rub is this. Professor San Filippo’s
‘scholarship" and "teaching," as those terms are
commonly understood, were never -- and are not now --
at issue and, were they, the Board would not have had to
utilize, as it did, the ethical imperatives of 3.91 to
provide "definition" to those terms. Stated somewhat
differently, what is clear from the Board’s decision is that
lteensieencemeenele
52a ~-
Professor San Filippo committed ethical violations which
had absolutely nothing to do with "scholarship" and
"teaching" but because those violations were committed
by a scholar and a teacher, "standards of sound
scholarship and competent teaching" were supposedly
not maintained.
Parenthetically, what leads Rutgers to conclude
that 3.91 "defines" "sound scholarship and competent
teaching" and how any language in 3.91 relevant to a
definition of those terms possibly assists Rutgers is less
than clear. Certainly, the terms "sound scholarship and
competent teaching" in one sentence are not given
definition by the mere exhortation in another sentence,
with no apparent connection between the two, to
conduct oneself in accordance with the standards of
professional ethics. Certainly, too, there is nothing at
any point in 3.91 in connection with anything akin to
scholarship and teaching competence language that
concerns other than the teacher’s obligation to his or her
students in the academic setting -- as the very first
sentence of 3.91 puts it, "in the classroom and studio"
not, I suggest, in the garden or during indoor or outdoor
cleaning. Stated somewhat differently, even if 3.91
defined "sound schoalrship and competent teaching" in
the academic setting, which it did not, nothing in 3.91
even hinted that it had anything to do with those terms
in an extra-curricular setting even assuming that an
extra-curricular setting vis-a-vis those terms can be
imagined, which it cannot.
Be that as it may, it bears repetition that ethical
violations -- wherever they occurred -- were the basis of
the dismissal at issue here and ethical violations only,
although the Board was careful to invoke the "sound
scholarship" "competent teaching" language, albeit
without much enthusiasm. Two examples will suffice.
"The serious lack of ethics in the employer-employee
relationship found [in charges 1(c) and 2] constitutes
adequate ground for finding a lack of maintenance of
53a
‘standards of ‘sound scholarship and competent
teaching," id. at 56; charge 4 " concerns the
responsibility of a teacher-scholar to act ethically ... and
likewise can be considered a failure to maintain
‘standards of sound scholarship and competent
teaching.” Id. at 56-57.
With ethical violations playing such an important
part in the dismissal decision and with any failure to
maintain ‘standards of sound scholarship and
competent teaching" -- as those terms are commonly
understood -- seemingly irrelevant, an examination of
what, if any, part ethical violations can play in a dismissal
decision is important. In early 1980, the Board
requested that the administration review the University
regulations and statements on the ethical obligations of
faculty and, if warranted, make recommendation, and a
select committee of faculty and administrators was
established (Friedman Aff., Exh. 4). At the same time,
the administration was considering a revision of 3.91
“with particular emphasis on ... dismissal processes." Id.
A paper entitled "Background notes: Faculty Ethics at
Rutgers," apparently prepared by the Office of the
Executive Vice President, was distributed on March 14,
1980 to the committee members. Id. at Exh. 5. It
described the AAUP Code contained in 3.91 as more
comprehensive than other institution - specific codes, yet
Stating only "broad ethical principles; it does not in the
manner of a legislative code, spell out in concrete detail
the specific behaviors which are prescribed or
proscribed by those principles." Id. at 2,3. The final
report of the committee was submitted to President
Bloustein on January 20, 1981 and, with reference to
ethical concerns, said little beyond what the
“Background Notes" had said and Suggested little in the
way of change although noting, somewhat curiously in
my view, that dismissal was then available as a sanction
for ethical violations. Id. Exh. 6 at 7.
Meanwhile, an Advisory Committee on Facult
Dismissal Procedures was operating and, on July 15,
S4da
1981, its report was forwarded to President Bloustein
and the President of the Rutgers Council of the AAUP.
Id. Exh. 7. That report recommended, as relevant here,
that the sanction of dismissal be available only tor
academic incompetence or for a serious or persistent
breach of proiessorial standards. In determining
whether academic incompetence exists or professorial
standards have been breached, evidence of
(1) serious or persistent failure to
maintain standards) of sound © scholarship,
competent teaching and professional conduct, or
ot
(2) serious or persistent neglect of
University obligations which relate directly and
substantially to a faculty member’s fitness in his
professional capacity;
3) conduct involving moral turpitude
which relates directly and substantially to fitness
as a faculty member shall be relevant. Id. Exh.
7at 3.
Importantly, in a footnote the committee observed that
"standards of sound scholarship, competent teaching and
professional conduct" incorporates, but is not limited to,
among other things, the AAUP Statement on
Professional Ethics. Id.
Thus, for the first time in many years, violations
of ethical standards were explicitly proposed as a basis
for dismissal. One wonders why this proposal would
have been deemed necessary if, as Rutgers argues, those
ethical standards were already incorporated within the
terms "standards of sound scholarship and competent
teaching" which appear in 3.97 and were to be retained.
The proposal was never adopted.
Apparently, additional drafts of the report were
prepared by the administration, one draft proposing that
SSa
a violation of any University regulation would be a basis
for dismissal. Friedman Aff. at 15. Apparently, too,
the faculty vociferously opposed that draft with Dean
Peter Simmons of the Rutgers Law School describing it
as “patent foolishness." Id. and Exh. 8 at 2. On March
18, 1982, the draft was withdrawn for revision in light of
the comments received. Id. Exh. 9.
Almost another year went by before the Final
Report of the President's Select Committee on Facu ty
Ethics was submitted to a closed session of the
Educational Planning and Policy Committee on January
26, 1983. Id. at Exh. 10. This report proposed a much
broader range of conduct to be disciplined, including the
discipline of dismissal. Once again, a violation of the
Statement on Professional Ethics (now contained in
proposed Reg. 3.72) was proposed as a basis for
dismissal. The report also proposed that the failure to
abide by University rules, regulations, policies, and
requests and insubordination be made bases for
dismissal. Id. at 7,8. Quoted in full, "cause" as defined in
III A of the proposal "shall include but not be limited to:
l. Failure to maintain Standards of
sound scholarship, competent
teaching or professional conduct as
defined in Regulations 3.7] and
3.72;
y Failure to abide by University
rules, regulations and policies:
a Neglect of University obligations or
oe appropriate to
his er appointment;
4. Failure to comply with
administration requests which are
appropriate to his/her appointment
and which are consistent. with
S6a
University rules, regulations, and
policies: or insubordination;
a)
Conduct exhibiting gross moral
turpitude or depravity and which
reflects upon fitness to serve as a
faculty member.
<4
Id. at 7.
All hell broke loose. 26 members of the
Department of Physics -- a majority -- and 37 members
of the Department of Psychology, for starters, submitted
resolutions to Provost Wheeler which stated, as
pertinent here:
We strongly oppose the following as being
far too broad and vague and, therefore,
potentially subject to abuse:
(a) Dismissal for "failure to maintain
professional conduct";
(b) Dismissal for "conduct exhibiting
neglect of established University
obligations or responsibilities";
(c) Dismissal for "conduct exhibiting gross
moral turpitude..."
(d) Dismissal for "failure to abide by
university rules, regulations and policies or
insubordination.’
Id. Exh. 11.
Now having struck out twice in terms of obtaining
faculty acceptance of its proposed revisions of the
dismissal regulations, the administration tried again In
S7a
August, 1983, it determined that yet another committee -
- comprised of administrators, faculty, and AAUP and
Board of Governors representatives -- would be formed
to revise Regulations 3.70-3.99 and that committee was
established in late 1983. Id. Exh. 12. In April, 1984, a
draft of proposed revisions dealing with outside
employment was issued and in June, 1986. more than
two years later, the Board of Governors approved those
revisions. Id. 20, 21; Exh. 13, 14.
On September 16, 1986, the remaining proposed
revisions of regulations 3.70-3.99 were submitted to the
faculty for comment. Id. Exh. 15. The proposed
regulation dealing with dismissal (Reg. 3.74) defined
"cause" adequate for dismissal as
“persistent or recurrent failure to maintain
appropriate standards = of — sound
scholarship and competent teaching, or
gross neglect of established obligations
appropriate to the appointment or gross
disregard of Regulations and other written
policies of the University, or conviction of
a crime that involved moral turpitude and
that reflect adversely upon fitness to serve
as a faculty member." Id. at 2.
On February 18, 1987, the proposed revisions were
submitted to President Bloustein for approvai by the
Board of Governors. As of this date more than three
years later -- the proposed revisions dealing with
termination for cause, 3.70-3.74, and the dismissal
regulations, 3.90-3.98, have not been approved.
The foregoing exegesis make certain things
crystal clear. First, as noted earlier, Regulation 3.9] --
which includes the Statement on Professional Ethics --
does not mention dismissal or anything to do with
dismissal and the dismissal regulations do not mention
ethics or anything to do with ethics. A violation of 3.91 is
simply not a dismissible offense and. were it otherwise,
58a
there would have been no need in 1967 to specifically
incorporate as a ground for dismissal under Regulation
3.97 conviction of a crime involving moral turpitude, a
ground, I note, which replaced "conduct ... reprehensible
and detrimental to the University," (Second McNatt Aff.,
Exh. B, E), a not insignificant fact. Moreover, it makes
utterly no sense that while one must actually be
convicted of a crime involving moral turpitude before he
or she can be dismissed, all of the generalized ethical
imperatives set forth in 3.91 but not even alluded to in
3.97 would, nonetheless, similarly permit di missal. And,
of course, if violations of these ethical imperatives were
grounds for dismissal, whether on their own or as
"defining" one of the grounds for dismissal set forth in
3.97, why the extraordinary efforts over more than ten
years to put in what was already there and why the sturm
und drang when those efforts were made?
I return to where I began. Professor San Filippo
argues that if the dismissal regulations and, in particular,
the "sound scholarship and competent teaching"
standards are expanded, by virtue of being defined by
3.91, to cover the charged conduct here, those
regulations are unconstitutionally vague because they
did not give him fair and adequate notice that that
conduct could lead to dismissal.’ As the Supreme Court
6. To the extent that plaintiff seems to suggest that
as to certain of the charges the Board of Governors
found that he violated University rules and regulations
and was insubordinate, the same reasoning applies.
Neither violation of rules and regulations or
insubordination are currently bases for dismissal, and
proposals to that effect were vigorously opposed by the
faculty. Indeed, the proposed revisions which have been
pending for more than three years make only "gross
disregard" of regulations a dismissible offense and do
not even mention insubordination.
7. If 3.91 is not subsumed within or does not
otherwise define "sound scholarship and competent
S9a
observed, albeit in the context of a criminal statute,®
‘there can be no doubt that a deprivation of the right of
fair warning can result not Only from vague Statutory
language but also from an unforeseeable and retroactive
expansion of narrow and precise statutory language.
Bouie v. City of Columbia, 378 U.S. 347, 352 (1964).
The argument here is that reasonably precise language --
“sound scholarship and competent teaching" -- has been
expanded by virtue of the unforeseeable and retroactive
gloss which Rutgers has placed on it by attempting to
slip in 3.91.
Certainly, the history of the dismissal regulations
and, aside from a conviction of a crime involving moral
turpitude, the aborted efforts to make ethical violations
the basis for a dismissa] decision, indicate, at least to me,
that it was "unforeseeable" that Rutgers would use
ethical violations, albeit segued into the "sound
Scholarship and competent teaching language," to
dismiss San Filippo and, thus, that he was deprived of his
right of fair warning.
Rutgers, however, points me to Korf v. Ball State
University, 726 F.2d 1222 (7th Cir 1984), in which the
Statement on Professional Ethics was found to have
adequately notified Korf that what he desc
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