Selzer v. Fleisher

• Citation: 629 F.2d 809
• Decision Date: 06 August 1980
• Docket Number: D,No. 1030,1030
• Parties: Michael I. SELZER, Plaintiff-Appellee, v. Martin FLEISHER, David W. Abbott, Nathan Schmukler, Donald R. Reich, John W. Kneller, and Harold M. Jacobs, Chairman, and Edith B. Everett, Ronald T. Gault, Jack John Olivero, David Z. Robinson, Patricia Carry Stewart, Loretta A. Conway, Walter H. Crowley, Armand D'Angelo, Gurstin D. Goldin, Albert V. Maniscalco, David Valinsky, Emanuel R. Piore, Joan B. Maynard, Joaquin Rivera and Edward A. Roberts, Members of the Board of Higher Education of the City of New York, and Robert J. Kibbee, Chancellor of the City University of New York, Defendants; Morton Berkowitz, Michael Kahan, Philippa Strum, Herbert Weiss, Ellen Frey- Wouters, Robert Engler and The Board of Higher Education of the City of New York, Defendants-Appellants. ocket 79-7776.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 809

629 F.2d 809

Michael I. SELZER, Plaintiff-Appellee, v. Martin FLEISHER, David W. Abbott, Nathan Schmukler, Donald R. Reich, John W. Kneller, and Harold M. Jacobs, Chairman and Edith B. Everett, Ronald T. Gault, Jack John Olivero David Z. Robinson, Patricia Carry Stewart, Loretta A Conway, Walter H. Crowley, Armand D'Angelo, Gurstin D Goldin, Albert V. Maniscalco, David Valinsky, Emanuel R. Piore, Joan B. Maynard, Joaquin Rivera and Edward A. Roberts, Members of the Board of Higher Education of the City of New York, and Robert J. Kibbee, Chancellor of the City University of New York, Defendants; Morton Berkowitz, Michael Kahan, Philippa Strum, Herbert Weiss, Ellen Frey- Wouters, Robert Engler and The Board of Higher Education of the City of New York, Defendants-Appellants.

No. 1030, Docket 79-7776.

United States Court of Appeals, Second Circuit.

Argued March 21, 1980.

Decided Aug. 6, 1980.

Donovan, Leisure, Newton & Irvine, New York City, New York (Walter L. Stratton, G. Russell Miller, E. Lauren Holmes, New York City, of counsel), for plaintiff-appellee.

Allen G. Schwartz, Corp. Counsel, New York City (L. Kevin Sheridan, Diane R. Eisner, Richard Bowers, Patrick F. X. Mulhearn, Peter J. Kurshan, New York City, of counsel), for defendants-appellants.

Before KAUFMAN and TIMBERS, Circuit Judges, and LASKER, District Judge. ^*

LASKER, District Judge.

I.

During the fall of 1977, Michael Selzer, then a political science professor at Brooklyn College, was denied tenure and promotion. He brought this action against various individuals and the New York City Board of Higher Education, alleging that the defendants acted to cause the denial because of his contacts with the United States Central Intelligence Agency (CIA) in violation of his First Amendment rights of freedom of expression and association.

Selzer had been enthusiastically recommended by the appropriate committees in the political science department and the School of Social Science for promotion from Assistant to Associate Professor in the Spring of 1976. Selzer, who specializes in the area of psychopolitics and was then studying the psychology of Nazi leaders, had contacted the CIA to inquire about access to data possessed by that agency, and agreed to the CIA's request to "debrief" him after he returned from a research trip to Europe in the summer of 1976. Upon his return, in a telephone conversation which lasted ten to fifteen minutes, Selzer gave a CIA officer information as to his observations on his trip.

Selzer's action became known to other members of the political science department during the Fall of 1976 and to the press that winter. In May 1977, the Appointments Committee of the political science department voted to deny Selzer tenure, and the department's Promotions Committee, in contrast to their 1976 action, voted against his promotion. The 1977 report of the chairman of the department also recommended against granting Selzer tenure. At each level of the hierarchy of committees at Brooklyn College involved in the tenure and promotion processes, the subsequent votes were against Selzer. Finally, the President of Brooklyn College decided not to recommend to the Board of Higher Education that Selzer be tenured, thereby terminating the process.

Selzer alleged that the negative votes on his tenure and promotion candidacies were based not on his academic qualifications but on his association with the CIA, and that the individual defendants conspired to deny him tenure. The appellants claimed that they were merely expressing their views as to Selzer's involvement with the CIA and that their actions were not intended to punish him for the exercise of his First Amendment rights.

After a nine week trial the jury returned a verdict for $580,000 against six individual defendants who sat on the tenure and promotion committees of the political science department. The other defendants were found to have acted in good faith. In response to special interrogatories, the jury found that the plaintiff proved that his association with the CIA was "a substantial or motivating factor in the determination to deny (him) tenure or promotion"; that the defendants as a group had not shown that without such association Selzer would have been denied tenure or promotion; and that the six defendants-appellants who had caused or contributed to the denial of Selzer's tenure or promotion had not acted in good faith.

After trial the district judge entered a judgment for the amount awarded by the jury together with an award of $433,458.73 in attorneys fees and expenses, and $60,065.83 in costs. The judgment was modified to substitute the Board of Higher Education as judgment debtor in lieu of the six individuals. The Board and those individuals have appealed to this Court.

II.

Appellants claim several errors below. We deal at the outset with those claims which we find without merit.

Appellants argue first that the First Amendment precludes recovery against them because the imposition of damages punishes them for engaging in what they characterize as "pure speech," that is, for merely expressing their views about Selzer's CIA involvement. This contention is based on an inaccurate characterization of the facts. The jury found appellants' conduct caused and was intended to cause the deprivation of Selzer's constitutional rights. Clearly, the First Amendment does not shield such conduct.

Appellants also contend that since the actual decision as to tenure was made by the President of Brooklyn College alone, the actions of the members of the Tenure and Promotion Committees could not have proximately caused Selzer's injury. ¹ However, the jury was properly instructed as to the principles of causation and concluded that appellants' actions were a proximate cause of the denial of Selzer's tenure. There was sufficient evidence to support that finding, including the testimony as to the weight given to the votes particularly when negative of the Tenure and Promotion Committees of the department by those who participate in the upper levels of the multi-tiered decisionmaking at Brooklyn College. See Haimowitz v. University of Nevada, 579 F.2d 526, 530 (9th Cir. 1978).

Appellants claim that, as a matter of law, they are entitled to good faith immunity under Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), because without any prior judicial decision holding similar conduct to be actionable, they had no reason to know that they were violating Selzer's constitutional rights. We disagree. A prior judicial decision holding conduct such as appellants' to be a basis for suit was not necessary to apprise them of a rule which should come as no surprise, that is, that conduct which denies a person promotion or tenure because of his private associations violates his First Amendment rights and is accordingly actionable.

Appellants contend that two evidentiary rulings of the court below constituted reversible error: (1) the court's refusal to admit into evidence two outside evaluations of Selzer's scholarship during cross-examination of defendants (who testified that they relied on those evaluations in deciding to vote against Selzer's tenure or promotion), and (2) the exclusion of the evaluations of certain Brooklyn College political science professors who were colleagues of Selzer. The evaluations were prepared by Selzer's expert and fact witness, Professor Dankwart Rustow, and were as laudatory of the other professors as Rustow's evaluation of Selzer.

Appellants argue that the admission of these reports would have demonstrated to the jury the undependability of Rustow's praise of Selzer. These rulings did not constitute an abuse of the trial judge's discretion. Viewing the record as a whole, the trial court's determination, although disappointing to appellants, did not prejudice them. As to the first item, the evaluations in question were admitted in evidence later in the trial, and during summation defense counsel had the opportunity to argue their significance to the jury. As to the second, the materials offered were of marginal relevance. Moreover, although the evaluations were not admitted, defense counsel were permitted the functional equivalent of questioning Rustow about his evaluations of other professors. (Tr. 4552)

Appellants next claim that the district judge erred by failing to charge the jury as to when Selzer's due process rights attached. However, Selzer did not claim he was denied his due process rights but that his First Amendment rights had been violated, and those rights did not "attach" at a specific time. Accordingly, the charge urged by appellants would have been inappropriate. ²

We also find to be without merit the contention that the court's charge was insufficient on the subject of Selzer's duty to mitigate damages. Appellants argue that although the judge instructed the jury that,

"It is the duty of any person who has been injured to use reasonable diligence and reasonable means under the circumstances to prevent the aggravation of such injuries and to effect a recovery therefrom."

(Tr. 6306-07), it was erroneous to refuse to charge the particulars of the responsibility to mitigate. Selzer responds that defendants failed to meet their burden of introducing evidence showing that he did not attempt to mitigate, and that therefore, "probably no charge on mitigation at all was proper." We agree that the charge given was sufficient to apprise the jury of Selzer's duty to mitigate. Without evidence in the record showing that Selzer did not attempt to find employment elsewhere, a further charge was not necessary.

Appellants assert that the trial judge's conduct was so biased and prejudicial as to deny them a fair trial. While it is understandable that in such a lengthy and controversial trial, the parties may become convinced that the judge was not acting impartially, our review of the record convinces us that the district...