Amicus Curiae Brief — San Filippo v. Bongiovanni

No. 92-135

- IN THE

£> Supreme Court of the United States

mf OCTOBER TERM, 1992

is

> JOSEPH SAN FILIPPO,

Petitioner,

VS.

MICHAEL BONGIOVANNI, ANTHONY S. CICATIELLO,

ADRIENNE S. ANDERSON, DONALD M. DICKERSON, FLOYD

H. BRAGG, NORMAN REITMAN, individually and as member 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

BRIEF AMICUS CURIAE IN SUPPORT OF THE PETITIONER

AND MOTION FOR LEAVE TO FILE THE BRIEF

PAUL SCHACHTER

Counsel of Record

DENISE REINHARDT

REINHARDT & SCHACHTER, P.C.

744 Broad Street, Suite 3100

Newark, New Jersey 07102

(201) 623-1600

Attorneys for Amici Curiae

September 1992

.i-

TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE BRIEF

SE NE 66 NaS Cheek nen l

BRIEF AMICUS CURIAE IN SUPPORT

CA Re NN SS od Sk wet Rew ade os vas 4

THE INTERESTS OF THE AMICI CURIAE .. 4

REASONS FOR GRANTING THE WRIT ... 6

The Court Should Decide

Whether The Interpretation

Of Rutgers’ Rules By The

Court Of Appeals Makes Them

So Vague As To Threaten

Academic Freedom ..... 1... esas 6

AAAI 5 scan cu eek nddas wba ceand ben 16

ofi«

TABLE OF CITATIONS

CASES

Arnett v. Kennedy,

416 UG 106 C19 7S8. vio eee be eS

13

~ Baggett v. Bullitt,

Det Ua ee CO 64544 ieee 15

Connolly v. General Constr. Co.,

ae US. SES tee oaks eee 11

Gentile v. State Bar of Nevada,

111 SS. 42. Ze CR. cate . 22

Grayned v. City of Rockford,

$08 US. 4 CIGD) nna ieee eee . BB

Keyishian v. Board of Regents of U. of St. of N.Y.,

300 US. S09 (6?) 4 i sacra eee ae

Meehan v. Macy,

392 F.2d 822 (D.C. Cir. 1968), modified, 425 F.2d

469 aff'd en banc, 425 F.2d 472 (1969) ..... 12

San Filippo v. Bongiovanni,

961 F.2d 1125 G6 Ce. PPR aS se ee ae

STATUTES

> USC, $7500) 26 iacd deere hy Es

ee

-iii-

MISCELLANEOUS

1940 Statement of Principles on Academic

Freedom and Tenure, American Association

of University Professors Policy Documents

|) 8

Recommended Institutional Regulations

Academic Freedom and Tenure, American

Association of University Professors

Policy Documents and Reports i Bare 8

Statement on Collective Bargaining,

American Association of University

Professors’ Policy Documents

and Reports (1990) ...................... 5

W. Metzger, Academic Freedom in the

Age of the University (1961) ............... 6

W. Metzger, Profession and Constitution:

Two Definitions of Academic Freedom in

America,

me nem. &. Rey, 1265 |... cc acccee 4, 6

sis

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

The Rutgers Council of AAUP Chapters; the

Professional Staff Congress of CUNY, AAUP/AFT; the

Connecticut State University AAUP; the Professional Staff

Association/AAUP of NJIT; Western Michigan University

AAUP; California Faculty Association, AAUP/NEA; and

the Congress of Connecticut Community Colleges AAUP

hereby move for leave to file their brief amicus curiae in

support of the petition for a writ of certiorari to the United

States Court of Appeals for the Third Circuit. The

Petitioner has consented to this filing; the Respondents

have not consented.

The grounds for this motion are:

THE INTERESTS OF THE MOVANTS

The Rutgers Council of AAUP Chapters represents

faculty members for purposes of collective negotiations at

Rutgers, the State University. It is affiliated with the

“American Association of University Professors. In both

capacities the Rutgers AAUP is dedicated to the

preservation of academic freedom.

Academic freedom may thrive only where there is

academic tenure, to protect faculty members from

discharge by whimsical governing bodies. The promise not

to fire professors except for specified causes guarantees

that they will engage in teaching, research and other

professional and personal activities without fear lest their

speech or their conduct serve as a reason for dismissal.

Rutgers AAUP believes that faculty members with

unpopular views and unpleasant personalities must be

~ e

given room to flourish, so that the pall of orthodoxy does

not choke off their teaching and scholarship.

Fundamental to the need to provide faculty

members with the broadest possible arena for exercise of

their ideas is clarity about the boundaries of permissible

conduct. This protects professors directly, because they

may regulate their conduct according to announced

standards and indirectly, because administrators will be

barred from arbitrary or biassed use of the standards.

The movants Professional Staff Congress of CUNY,

AAUP/AFT; Connecticut State University AAUP; the

Professional Staff Association/AAUP of NJIT; Western

Michigan University AAUP; California Faculty

Association, AAUP/NEA; and Congress of Connecticut

Community Colleges AAUP all represent faculty members

for purposes of collective bargaining at their respective

institutions of higher education, namely, City University of

New York, Connecticut State University, New Jersey

Institute of Technology, Western Michigan University,

universities in the California State University system, and

various community colleges in Connecticut. They share

the interests of the Rutgers AAUP in the preservation and

promotion of academic freedom.

ARGUMENT TO BE PRESENTED BY THE MOVANTS

This case raises the question whether a professor,

required to observe standards of "sound scholarship and

competent teaching", received fair warning that his

conduct as an employer of other university nonstudent

employees could subject him to dismissal. Rutgers AAUP,

which represents all faculty members at Rutgers, is

uniquely situated to demonstrate the nexus between the

historical construction of stated standards for dismissal and

the guarantees of academic freedom. The petitioner, who

— e

speaks from his own perspective, has not done so at any

length; the respondents, who and which will defend a

loose and ahistorical interpretation of the standard, will

not do so.

WHEREFORE the Rutgers Council of AAUP

Chapters; The Professional Staff Congress of CUNY,

AAUP/AFT; the Connecticut State University AAUP; the

Professional Staff Association/AAUP of NJIT: Western

Michigan University AAUP; California Faculty

Association, AAUP/NEA; and _ the Congress of

Connecticut Community Colleges AAUP move for leave

to file their brief amicus curiae, printed herewith.

Paul Schachter

Counsel of Record

REINHARDT & SCHACHTER, P.C.

7144 Broad Street, Suite 3100

Newark, NJ 07102

(201) 623-1600

Attorneys for the Movants

RUTGERS COUNCIL OF AAUP

CHAPTERS; THE PROFESSIONAL

STAFF CONGRESS OF CUNY,

AAUP/AFT; THE CONNECTICUT

STATE UNIVERSITY AAUP; THE

PROFESSIONAL STAFF

ASSOCIATION/AAUP OF NIJIT:

WESTERN MICHIGAN UNIVERSITY

AAUP; CALIFORNIA FACULTY

ASSOCIATION, AAUP/NEA;

AND THE CONGRESS OF

CONNECTICUT COMMUNITY

COLLEGES AAUP

MBEST AVAILABLE. COPY

a

BRIEF AMICUS CURIAE IN SUPPORT

OF THE PETITION

THE INTERESTS OF THE AMICI CURIAE

The Rutgers Council of AAUP Chapters’ consists

of three chapter affiliates of the American Association of

University Professors (AAUP). The AAUP, formed in

1915, has since that time been dedicated to preserving and

advancing academic freedom in our colleges and -

universities, and to promoting and defending the

institution of academic tenure as "the means to certain

ends; specifically: (1) freedom of teaching and research

and of extramural activities and (2) a sufficient degree of

economic security to make the profession attractive... ."

1940 Statement of Principles on Academic Freedom and

Tenure, contained in American Association of University

Professors’ Policy Documents and Reports (1990) (the "Red

Book"). The AAUP achieves these goals by developing

policy, like the 1940 Statement, which it then persuades

institutions to adopt and abide by, and by investigating and

censuring institutions that violate academic freedom. W.

Metzger, Profession and Constitution: Two Definitions of

Academic Freedom in America, 66 Tex.L.Rev. 1265, 1269

(1988). The Rutgers AAUP Chapters are equally

dedicated to these goals, which may be threatened by

dismissal standards which may be and are capriciously

applied.

The Rutgers AAUP is also the duly recognized

collective negotiating agent, that has the right and duty

1. The Rutgers Council of AAUP Chapters moved in this

case to intervene in the U.S. District Court for the District

of New Jersey. That motion was denied, but the Rutgers

AAUP was granted status in that court as amicus cunae.

Fe

under state law to represent faculty members’ interests in

better and more secure working conditions, including

enhancement of protections for academic freedom and

tenure. These responsibilities complement Rutgers

AAUP’s role as a professional association. Statement on

Collective Bargaining, Policy Documents and Reports at 145.

The administration of discipline is a central collective

negotiation concern. Rutgers AAUP is committed to the

protection of tenured faculty members through strict

adherence to duly established and published causes for

discipline.

The Rutgers AAUP also represents the community

of Rutgers scholars, who are dedicated and obligated to

seek and state the truth as they see it, as scholars and as

members of an academic community. The Rutgers AAUP

presents to this court the true account of the history and

construction of Rutgers’ definition of its causes for

dismissal, in fulfillment of that obligation. The Rutgers

AAUP finally brings its interests in defending faculty

prerogatives, as guaranteed by Rutgers’ system of

governance, and as fundamental to the role of faculty

colleague, to participate in defining standards for faculty

conduct.

The amici, all AAUP affiliates and collective

Oargailing representatives, are equally interested in the

presentation of academic freedom through fair notice to

tenured faculty members of what behavior on their part

may subject them to the capital punishment of dismissal.

The opinion of the Third Circuit threatens to create chaos

and confusion in their own institutions, since if may be

read as an invitation to administrators to loosen and

broaden retroactively their announced dismissal standards.

"

REASONS FOR GRANTING THE WRIT

THE COURT SHOULD DECIDE WHETHER

THE INTERPRETATION OF RUTGERS’

RULES BY THE COURT OF APPEALS

MAKES THEM SO VAGUE AS TO

THREATEN ACADEMIC FREEDOM

At least since 1916, the AAUP has believed, in a

departure from European tradition, that academic

freedom necessarily encompassed the faculty member’s

liberty to engage in speech and conduct outside the

classroom. Since then, when the AAUP begar to

investigate claims of violations, its "academic freedom

docket has been dominated by extramural freedom cases.

Of these cases, conflicts over parochial prides and

precedence, and charges of hierarchic insubordination and

coworker friction, have far outnumbered disputes involving

the content of teaching or research." Metzger, Definitions

of Academic Freedom, supra, 66 Tex.L.Rev. at 1275; W.

Metzger, Academic Freedom in the Age of the University

(1961)’ at 206-207.

We seldom now see a full frontal assault by higher

education administrators on the extramural conduct of

professors. The AAUP receives, instead, complaints that

academic freedom is threatened when faculty members are’

terminated because they are outspoken outside the

classroom about institutional governance or because they

2. Originally published as Part Two of R. Hofstader and

W. Metzger, The Development of Academic Freedom in

~ P

engage in conduct outside the academy which its

governors deem repugnant.’

The Rutgers AAUP does not quarrel with the

proposition that, had it wished to do so, the Rutgers

Board of Governors could have adopted regulations

governing extramural conduct (other than conviction of a

crime involving moral turpitude), and subjecting professors

to discharge for violations of the rules. Those regulations,

3. See, e.g., Reports of Committee A (Academic

Freedom) Contained in Academe (Bulletin of the

American Association of University Professors), Vol. 77,

No. 1 (Jan.-Feb. 1991) at 34 (nonrenewal growing out of

dispute over royalty rights to patent for invention

developed by faculty member); Vol. 76, No. 1 (Jan.-Feb.

1990) at 67 (nonrenewal after dispute over criticism by

faculty member of departmental disharmony); Vol. 75, No.

6 (Nov.-Dec. 1989) at 34 (failure to reappoint because of

alleged disagreeable communications and lack of spirit of

cooperation alleged to be discrimination on the basis of

sex); Vol. 75, No. 3 (May-June 1989) at 35 (refusal to

recognize tenure by length of service acquired by faculty

member active and outspoken in affairs of professional

organization); Vol. 74, No. 3 (May-June 1988) at 29

(nonrenewal because faculty member sent letter to student

newspaper criticizing colleague who sued another

colleague for sexual harassment), at 41 (faculty member

dismissed after administration perceived her criticisms of

college governance disruptive and disparaging of the

president); Vol. 76, No.:4 (July-Aug. 1990) at 50

(termination after faculty member refused to sign

Statement solemnly promising to cease criticisms of

administrators); Vol. 73, No. 5 (Sept.-Oct. 1987) at 48

(professor fired by Catholic institution after she remarried,

her first marriage having ended in civil divoice).

i

had they existed, would have alerted the Rutgers faculty

that their voluntary conduct outside the classroom and the

laboratory, even though not resulting in criminal

conviction, could result in the civil penalty of dismissal

from their tenured jobs. i

If those regulations had existed, and if their scope

had reached either conduct protected by academic

freedom or conduct not reasonably related to the role of

faculty members, the Rutgers AAUP or other interested

parties could have challenged them as overbroad. The

Rutgers AAUP would have insisted that there be a close

connection between the forbidden and offensive conduct

and the fitness to be a scholar and a teacher.

This insistence would have been based upon the

AAUP’s Recommended Institutional Regulations on

Academic Freedom and Tenure, contained in the Red Book

at 21-30. The Recommended Dismissal Procedures, at

26; state first:

(a) | Adequate cause for dismissal

will be related, directly and

substantially, to the fitness of -

faculty members in_ their

professional capacities as

teachers or researchers.

Dismissal will not be used to

restrain faculty members in

their exercise of academic

freedom or other rights of

American citizens.

At Rutgers, however, faculty members rested secure

based upon Rutgers’ interpretations, before the decision

of the United States Court of Appeals for the Third

Circuit. Faculty members knew that they could only be

ae

vis

dismissed for violating the four grounds for discharge

specified in University Regulations including (1)

incompetence, (2) incapacity, (3) conviction of a crime

involving moral turpitude, or (4) failure to maintain

"standards of sound scholarship and competent teaching".

Regulation 3.97 quoted*at 9a (Petitioner’s Appendix).

They also believed that although their employment

imposed upon them "obligations of frankness, candor and

cooperation. . . with the administration," the Board of

Governors had interpreted Regulation 3.97 as giving no

warning that failure to adhere to the ethical code of

Regulation 3.91 or failure to be truthful could lead to

dismissal. Faculty members knew that the Board of

‘Governors refused to dismiss their colleague, Prof.

Villiers, even though he had a secret full-time teaching job

at another institution, in violation of several express and

implied responsibilities elsewhere in University policies.

Faculty members knew that the Governors had found in

1979 that Prof. Villiers had no notice from Regulation

3.97 that his lack of candor about his job, or even his dual

full-time employment, constituted a dismissable offense.

3dA 386-88.‘

Faculty members also knew that another colleague,

Prof. Russell Leaf, had been charged with neglect of his

duties to teach, do scholarship and serve his university, in

that he allegedly failed to schedule or meet classes, to

hold office hours, to collect and read his mail, to conduct

any research at all, to be available for collaboration or

consultation with colleagues, or to attend departmental

meetings and colloquia. 3dA 398-99. Yet, based on the

In re Villiers decision of the Board of Governors, faculty

members knew that the administration in 1980 had

4. This refers to the Joint Appendix submitted to the U.S.

Court of Appeals for the Third Circuit.

«10.

declined to proceed with the charges against Prof. Leaf.

3dA 404. Faculty members had reason to know that the

standards set forth in Regulation 3.97 gave no notice that

even gross neglect of all university duties -- even those

explicitly touching on teaching or scholarship -- could

subject colleagues or themselves to dismissal.’

Faculty members knew that Regulation 3.97 had

been the topic of much debate and controversy, when the

Governors contemplated revising the standards and

procedures for dismissal. They believed, and they

expressed their belief, that current Regulation 3.97 did not

(and any new regulation should not) subject one to

dismissal for such "vague" offenses as "failure to maintain

professional conduct" or "conduct exhibiting neglect of

university obligations or responsibilities.". 3dA 291-342;

54a-S6a. Faculty members knew that draft causes for

dismissal or lesser discipline including "persistent or

recurrent failure to maintain appropriate standards of

sound scholarship and adequate teaching, gross neglect of

established conditions appropriate to the appointment,

gross disregard of Regulations and other written policies

of the University, or conviction of a crime that involves

moral turpitude and that reflects adversely upon fitness to

serve as faculty members" had been proposed to the

Governors in 1987; but not adopted by them. 3dA 342.

Faculty members were aware that the 1975 version of

5. The original charges against Prof. Leaf were predicated

_ in part on Regulation 3.91, the ethical code which the

Third Circuit and the District Court found in this case had

not been incorporated into Regulation 3.97. However, no

new charges were pressed predicated on the failure to

maintain standards of sound scholarship and competent

teaching.

ini aan

et.

Regulation 3.97, as construed by the Board of Governors,

enunciated the sole bases for dismissal.

The Petitioner here, Prof. San- Filippo, has

' challenged Regulation 3.97’s fourth cause for dismissal,

failure to maintain standards of sound scholarship and

competent teaching, as void for vagueness as applied to

his conduct. He claimed that it did not give him and his

colleagues "fair warning" that the acts with which he was

charged could result in dismissal by Rutgers. As the Court

of Appeals below explained, to survive a challenge of

vagueness, the rule or statute must be "sufficiently explicit®

to alert people of the conduct that "will render them liable

to its penalties:"

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.

San Filippo v. Bongiovanni, 961 F.2d 1125, 1136 (3d Cir.

1992) reprinted at 27a, quoting from Connolly v. General

Constr. Co., 269 U.S. 385, 391 (1926).

In Arnett v. Kennedy, 416 U.S. 134, 160 (1974) this

court found that the standards for dismissal from federal

employment of “such Cause as will promote the efficiency

of the service" in 5 USC. §7501(a) was not

unconstitutionally vague. The court did not find that

"reasonable men" would not differ on whether particular

conduct, such as Mr. Kennedy’s alleged defamation of his

-12-

colleagues, was not included in the standard. Rather, the

court found that the standards were defined by history.

The phrase “was not written on a clean slate in 1912,"

when it was enacted, and it did "not appear upon a clean

slate" in 1974. Authoritative interpretations by the

administrative body enforcing the statute, the Civil Service

Commission, gave meaning to, and dispelled vagueness

from, the standard. 416 U.S. at 160. The Commission

interpreted the standard by incorporating wholesale

"longstanding principles of [private sector] employer-

employee relationships" into the standard. This

- - incorporation required a reading of the catchall provisions

in §7501(a) to permit dismissal for “inveigh[ing] against

[one’s] superiors in public with intemperate and

defamatory” matter. (Inserts added.)

[Dismissal in such

circumstances neither] comes

as an unfair surprise [nor] is

so unexpected ... as to chill .

. freedom to engage in

appropriate speech. (Inserts

and ellipses in original.)

416 U.S. 161-62, quoting from Meehan v. Macy, 392 F.2d

822, 835 (D.C. Cir. 1968), modified 425 F.2d 469, aff'd en

banc 425 F.2d 472 (1969).

In this case, the Third Circuit turned Amett v.

Kennedy on its head. The court below ignored the slate

upon which the Rutgers administration had clearly written

a limiting history, when the administration concluded in Jn

re Villiers that Regulation 3.97 did not incorporate either

any general "longstanding principles of employer-employee

relations" and "common sense” or any specific standards

for behavior -set forth elsewhere in university policies,

a

«ies

including the ethical guidelines of Regulation 3.91. The

Court of Appeals then engrafted a "common sense"

reading to make virtually universal and all-inclusive the

specific and limited terms of Regulation 3.97, even though,

in stark contrast with the federal government in Ammett,

Rutgers had expressly declined to read its own regulation

to proscribe all manner of conduct touching on all aspects

of professional and personal responsibility, however far

removed from the pure intramural exercises of teaching

and scholarship.

Petitioner has explained why under Gentile v. State

Bar of Nevada, 111 S.Ct. 2720, 2731 (1991), the terms

“sound scholarship" and “competent teaching” fail to alert

faculty members to Rutgers’ limits of tolerance, since the

terms of degree historically at Rutgers lack "settled usage

or tradition of interpretation" to save them from

vagueness. Petition at 25. Petitioner does not expand on

the other two harms arising from a vague regulation: the

impermissible delegation of unfettered discretion to the

enforcer, and the chilling effect on those regulated. See,

e.g., Grayned v. City of Rockford, 408 U.S. 104, 108-9

(1972). Both threaten the professorate with a "pall of

orthodoxy" at a time when scholars attempt diligently to

explore the very bounds of academic freedom. Keyishian

v. Board of Regents of U. of St. of N.Y., 385 U.S. 589, 603

(1967).

The faculty at Rutgers and other institutions of

higher education are now engaged in spirited debate over

what constitutes sound scholarship and competent

teaching. The strident tones of the struggle over what

should constitute the canon of a particular discipline, or

whether there should even be such a canon, resonate

throughout the academy and even outside it. See, for

example, these pieces in The Chronicle of Higher

eee

~ ies

Education: Jay, Gregory S., The First Round of the Culture

Wars, February 26, 1992 at B1-2; Heller, Scott, ‘Common

Knowledge’: New Journal Aims to Build Bridges in a

Fractured Academic World, January 29, 1992 at A10;

McMillen, Liz, Olin Fund Gives Millions to Conservative

Activities in Higher Education, January 22, 1992 at A31-

A32; Ellis, John M., The Origins of PC, January 15, 1992

at B1-2; O’Neill, Robert M., Dealing with Intolerance for

Intolerant Views, December 18, 1991 at A44; Heller, Scott,

‘Frame-Up’ of Multicultural Movement Dissected by Scholars

and Journalists, November 27 ,1991 at A16-18; Haro,

Robert P., So-Called Experts on Cultural Diversity Need to

Be Subjected to Careful Scrutiny, November 13, 1991;

Magner, Denise K., Gathering to Assess Battle Against

‘Political Correctness’, ‘Scholars’ Look for New Ways to

Resist ‘Illiberal Radicals’, October 30, 1991 at A17-19;

Magner, Denise K., /deological Foes in ‘PC’ Debates Open

a Dialogue, October 2, 1991 at A17-18; and these pieces in

Academe: Stimpson, Catherine R., Meno’s Boy: Hearing His

Story & His Sister’s, Vol. 77, No. 6, Nov.-Dec. 1991 at 25-

31; and Davidson, Cathy N., ‘PH’ Stands for Political

Hypocrisy, Vol. 77, No. 5, Sept.-Oct. 1991, at 8-14. These

fierce battles have not resolved and are not likely soon to

resolve what shall be taught. The nature of what scholars

recognize as truth constantly evolves as they engage in

traditional and new scholarly methods to achieve new and

better understandings.

All partisans in the wars may be.unable to wait

until there is consensus about the curriculum and other

issues before they try to undermine the strongholds of

their opponents on their own campuses. A direct attack

on scholarship or teaching is risky while there is violent

disagreement about what is "sound" and what is unsound.

How tempting and how much easier to rid an institution

of the pesky opposing adherents by setting upon their

.. -

nonspeech conduct as citizens of the university community,

outside the classroom, laboratory and library, and claiming

that the undesirable colleagues thereby maintain unsound

scholarship and incompetent teaching. The Court of

Appeals invites this precise abuse, permitting

administrators and colleagues to fashion novel types of

unsound scholarship and incompetent teaching, based on

the known sins of each targeted professor. Did he fail to

pay his university parking tickets? Did she fail to return

books and periodicals on time to the library? Did he

overwork a nonstudent employee? Did she show

disrespect for an administrator? Under the Third Circuit’s

reading, each of these might be deemed to "spring from

his [or her] role as a faculty member at the University,"

and despite their irrelevance to "actual teaching or

research skills", may therefore serve as the basis for

dismissal. 961 F.2d at 1137; 29a.

Faculty members now fear that whatever the words

of Regulation 3.97 say, and whatever the tradition of

interpretation of the Regulation at Rutgers, administrators

and colleagues may label all manner of conduct -- even

conduct outside the academy -- as unsound scholarship

and incompetent teaching. They will reason, as this court

has done in the past, that this unlimited discretion will

subject them to unpredictable attack: they cannot regulate

their behavior precisely because neither they, nor anyone

else, knows the contours of the standard. It takes little

imagination to guess how “conscientious".faculty members

will act, to observe their obligations and to preserve their

employment "by restricting their conduct to that which is

unquestionably safe" from direct or collateral attack.

Baggett v. Bullitt, 377 U.S. 360, 372 (1964). The robust

debate over the role and content and “competent teaching"

of higher education that now flourishes is in grave danger

of extinction, if "sound scholarship" and “competent

teaching” may be defined ad hoc and may include conduct

as an employee and supervisor, even though not as a

teacher or scholar.

Te

.

CONCLUSION

The Court should grant the writ to decide whether

the vagueness doctrine was properly applied and whether

the Court of Appeals correctly reversed the order granting

partial summary judgment to the petitioner.

Respectfully submitted,

Pl. Ido

Paul Schachter

Counsel of Record

Denise Reinhardt

REINHARDT & SCHACHTER, P.C.

744 Broad Street, Suite 3100

Newark, NJ 07102

(201) 623-1600

Attorneys for the Amici Curiae

RUTGERS COUNCIL OF AAUP

CHAPTERS; THE PROFESSIONAL

STAFF CONGRESS OF CUNY,

AAUP/AFT; THE CONNECTICUT

STATE UNIVERSITY AAUP; THE

PROFESSIONAL STAFF

ASSOCIATION/AAUP OF NIJIT;

WESTERN MICHIGAN UNIVERSITY

AAUP; CALIFORNIA FACULTY

ASSOCIATION, AAUP/NEA; AND

CONGRESS OF CONNECTICUT

COMMUNITY COLLEGES AAUP

Dated: September 4, 1992