Dube v. State University of New York, No. 885

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtBefore MESKILL, MINER and MAHONEY; MESKILL; Mishler; However, turning to defendants' qualified immunity defense; MINER; MAHONEY
Citation900 F.2d 587
Parties59 Ed. Law Rep. 988 Professor Ernest F. DUBE, Professor William McAdoo, Professor Amiri Baraka, Professor Carolle Charles, Professor Leslie Owens, Haitian Student Organization, Latin American Student Organization International Student Organization, Caribbean Student Organization, and Third World Resources, Plaintiffs, Professor Ernest F. Dube, Plaintiff-Appellee, v. The STATE UNIVERSITY OF NEW YORK, Clifton R. Wharton, Jr., Ex-Chancellor of the State University of New York, individually and in his official capacity; Jerome Komisar, Acting Chancellor of the State University of New York, individually and in his official capacity; John Marburger, President of the State University of New York at Stony Brook, individually and in his official capacity; Homer A. Neal, Provost of the State University of New York at Stony Brook, individually and in his official capacity; Robert Neville, Dean of Humanities and Fine Arts at the State University of New York at Stony Brook, individually and in his official capacity, Defendants-Appellants. ocket 88-7980.
Decision Date12 April 1990
Docket NumberD,No. 885

Page 587

900 F.2d 587
59 Ed. Law Rep. 988
Professor Ernest F. DUBE, Professor William McAdoo,
Professor Amiri Baraka, Professor Carolle Charles, Professor
Leslie Owens, Haitian Student Organization, Latin American
Student Organization International Student Organization,
Caribbean Student Organization, and Third World Resources, Plaintiffs,
Professor Ernest F. Dube, Plaintiff-Appellee,
v.
The STATE UNIVERSITY OF NEW YORK, Clifton R. Wharton, Jr.,
Ex-Chancellor of the State University of New York,
individually and in his official capacity; Jerome Komisar,
Acting Chancellor of the State University of New York,
individually and in his official capacity; John Marburger,
President of the State University of New York at Stony
Brook, individually and in his official capacity; Homer A.
Neal, Provost of the State University of New York at Stony
Brook, individually and in his official capacity; Robert
Neville, Dean of Humanities and Fine Arts at the State
University of New York at Stony Brook, individually and in
his official capacity, Defendants-Appellants.
No. 885, Docket 88-7980.
United States Court of Appeals,
Second Circuit.
Argued March 17, 1989.
Decided April 12, 1990.

Page 588

Kathie Ann Whipple, Asst. Atty. Gen., State of N.Y. (Robert Abrams, Atty. Gen. of the State of N.Y., O. Peter Sherwood, Sol. Gen., Ellen Fried, Asst. Atty. Gen., State of N.Y., New York City, of counsel), for defendants-appellants.

Frank E. Deale, Center for Constitutional Rights (Wilhelm Joseph, National Conference of Black Lawyers, Lennox S. Hinds, Aaron D. Frishberg, Stevens, Hinds & White, New York City, of counsel), for plaintiffs-appellees.

Before MESKILL, MINER and MAHONEY, Circuit Judges.

MESKILL, Circuit Judge:

This is an interlocutory appeal from an order of the United States District Court for the Eastern District of New York, Mishler, J., granting in part and denying in part defendants-appellants' motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), and denying their motion for summary judgment pursuant to Fed.R.Civ.P. 56.

The litigation was commenced by plaintiff-appellee Ernest F. Dube, a former assistant professor at the State University of New York at Stony Brook (Stony Brook), and others against defendants-appellants, the State University of New York (SUNY) and various SUNY officials, in their individual and official capacities, seeking monetary damages and injunctive relief pursuant to 42 U.S.C. Sec. 1983. 1 In his complaint, Dube alleges that he was denied tenure in

Page 589

violation of his First Amendment rights, "based on [his] discussion of controversial topics in his classroom," and that he was denied due process of law in the tenure review process, in violation of his Fourteenth Amendment rights. Dube also pleads two pendent state law claims.

Defendants moved for (1) judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) on the ground that Eleventh Amendment immunity barred suit against SUNY and the individual defendants acting in their official capacities, and (2) summary judgment pursuant to Fed.R.Civ.P. 56. The district court granted the motion for judgment on the pleadings "except as to prospective relief for reinstatement." We modify this aspect of the district court's order to preclude any relief against SUNY, and any injunctive relief on Dube's state law claims, and, as modified, affirm.

The district court, however, denied defendants' motion for summary judgment, ruling that (1) genuine issues of material fact exist with respect to whether Dube was denied tenure because of the content of his classroom discourse, and (2) the individual defendants' claims of qualified immunity should not preclude a trial on the merits. Because we conclude that a genuine dispute exists as to the subjective motivation of all individual defendants except Komisar, we affirm the denial of summary judgment on the merits and order the district court to enter summary judgment in Komisar's favor on all claims. Furthermore, as we conclude that Dube has failed to allege a protected "liberty" or "property" interest, we order the district court to (1) dismiss Dube's Fourteenth Amendment claim, and, consequently, (2) dismiss as moot defendants' claim of qualified immunity from section 1983 liability on the Fourteenth Amendment claim. The denial of qualified immunity as to the individual defendants in their personal capacities with respect to the alleged First Amendment violation is affirmed.

BACKGROUND

Dube was hired by Stony Brook in 1977 as an assistant professor in its Africana Studies Program. He had come to the United States in 1967 after being expelled from his native South Africa for his outspoken opposition to apartheid. Before joining the Stony Brook faculty, Dube received a B.S. in psychology and sociology from the University of Natal in South Africa, and a Ph.D. in cognitive psychology from Cornell University. Dube's employment was governed both by the Policies of the SUNY Board of Trustees (the Policies) and by a collective bargaining agreement between United University Professions, Inc. (UUP), agent for Stony Brook professors, and the State of New York (the Agreement).

In the fall term of 1981, Dube began teaching a course in the Africana Studies Program designated AFS/POL 319, "The Politics of Race." A description of this course, apparently prepared by Dube for the summer term of 1983, made reference to "[t]he three forms of racism and how they manifested themselves: 1) Nazism in Germany[,] 2) Apartheid in South Africa[, and] 3) Zionism in Israel." A similar description for the fall 1983 term stated: "We will ... end up by discussing the three main forms of racism: overt racism, covert racism, and reactive racism. Examples of all three forms of racism will be discussed for comparative purpose[s]; e.g., Nazism, apartheid, and Zionism."

Dube's complaint alleges that on July 15, 1983, Professor Selwyn Troen, a visiting professor from Ben Gurion University of the Negev in Israel, wrote a letter to Egon Neuburger, Dean of the College of Arts and Sciences at Stony Brook, in which Troen asserted that Dube, in AFS/POL 319, taught that "Zionism is as much racism as Nazism was racism and that 'the class was asked to share the instructor's view that there is an identity between the two.' " Troen's letter also allegedly accused Dube of using his position for the " 'propagation of personal ideology and racist biases.' " Copies of this letter were allegedly sent to defendant-appellant Homer Neal, Provost of Stony Brook, Vice-Provost Spanier, fourteen members of the Stony Brook faculty, and the news media.

Page 590

In a written response to these allegations, Dube, on July 27, 1983, allegedly stated that

he had exposed his class to his own view that Zionism was not a monolithic ideology, but that among organizations and individuals identifying themselves as Zionists there were both groups with histories of espousing racist views and others who were not racist, and [he] had urged his students to avoid simplistic and stereotyped thinking.

The matter was subsequently investigated by the Executive Committee of the Stony Brook Senate, which unanimously determined Dube's teachings to be within the bounds of academic freedom. During August and September of 1983, the committee's position was ratified by Dean Neuberger, defendants-appellants Neal and John Marburger, President of Stony Brook, and the full University Senate by a vote of 55-14. This ratification, however, did not quell the growing furor.

Thereafter, the Long Island branch of the Anti-Defamation League of B'nai Brith and the American Jewish Committee allegedly "mounted a publicity and lobbying campaign directed at President Marburger, with an express aim to cause the University to repudiate Dr. Dube and to discontinue his teaching of 'The Politics of Race,' AFS/POL 319." Long Island Assemblyman Lewis Yevoli allegedly threatened to block funding for the Africana Studies Program in the Ways and Means Committee of the New York State Assembly if Dube was allowed to continue teaching AFS/POL 319, and New York Governor Mario Cuomo allegedly issued a statement condemning "the failure of the University community to denounce Dr. Dube." Marburger also received letters from Stony Brook alumni stating that they were discontinuing financial contributions and urging students not to enroll.

As a result of the controversy concerning AFS/POL 319, Marburger, on October 19, 1983, issued the following statement:

In view of the continuing concern regarding the position of the administration of the State University of New York at Stony Brook with respect to the course "The Politics of Race" taught by Professor Dube, I wish to clarify and reiterate that position so there will be no doubts about it.

The Stony Brook administration, for which I speak officially here, absolutely divorces itself from the views expressed in this course, and from any view that links Zionism with racism or nazism. Furthermore, I personally find such linkages morally abhorrent.

Several events have occurred subsequent to the incident that drew attention to Professor Dube's course that some have interpreted as implying a pattern of antisemitic behavior at Stony Brook. These events are each of them unfortunate, but in my opinion are unrelated to each other and to the course taught by Professor Dube. 2

AFS/POL 319 was thereafter removed from the course listings of the political science department.

Dube became eligible for tenure during the 1983-84 academic year. However, due to the ongoing controversy surrounding AFS/POL 319, he requested, and was granted, a postponement of tenure review until the 1984-85 academic year. At that time, an ad hoc review committee was appointed to consider the matter and to provide a recommendation regarding Dube's potential tenure. No faculty member who, in Dube's view, had been allied with Troen in protesting Dube's teachings was appointed to the...

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368 practice notes
  • Burrell v. City University of New York, No. 94 CIV. 8711(RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 26, 1998
    ...465 U.S. at 99-100)). This jurisdictional bar exists regardless of the type of relief sought. Id.; Dube v. State University of New York, 900 F.2d 587, 594-95 (2d Cir.1990); see also Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 1124, 134 L.Ed.2d 252 (1996) ("We have oft......
  • LaFleur v. Wallace State Community College, Civil Action No. 94-D-747-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • June 18, 1996
    ...its authority under § 5. Carr v. City of Florence, Ala., 916 F.2d 1521, 1525 (11th Cir. 1990). See also Dube v. State Univ. of New York, 900 F.2d 587, 594 (2d Cir.1990), cert. denied, 501 U.S. 1211, 111 S.Ct. 2814, 115 L.Ed.2d 986 Hence, the Eleventh Amendment protects Wallace College from ......
  • Shakhnes v. Eggleston, Nos. 06 Civ. 04778(RJH)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 30, 2010
    ...enjoin conduct that violates the federal Constitution, notwithstanding the Eleventh Amendment bar." Dube v. State University of New York, 900 F.2d 587, 595 (2d Cir.1990). That doctrine extends to suits against a state official in violation of any federal law. See Kostok v. Thomas, 105 F.3d ......
  • Zhao v. State University of N.Y., No. 04-CV-0210 JFB RML.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 9, 2007
    ...claim, there is no question that SUNY is a state agency entitled to Eleventh Amendment immunity. See Dube v. State Univ. of New York, 900 F.2d 587, 594 (2d Cir. 1990) ("For Eleventh Amendment purposes, SUNY is an integral part of the government of the State [of New York] and when it is sued......
  • Request a trial to view additional results
368 cases
  • Burrell v. City University of New York, No. 94 CIV. 8711(RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 26, 1998
    ...465 U.S. at 99-100)). This jurisdictional bar exists regardless of the type of relief sought. Id.; Dube v. State University of New York, 900 F.2d 587, 594-95 (2d Cir.1990); see also Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 1124, 134 L.Ed.2d 252 (1996) ("We have oft......
  • LaFleur v. Wallace State Community College, Civil Action No. 94-D-747-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • June 18, 1996
    ...its authority under § 5. Carr v. City of Florence, Ala., 916 F.2d 1521, 1525 (11th Cir. 1990). See also Dube v. State Univ. of New York, 900 F.2d 587, 594 (2d Cir.1990), cert. denied, 501 U.S. 1211, 111 S.Ct. 2814, 115 L.Ed.2d 986 Hence, the Eleventh Amendment protects Wallace College from ......
  • Shakhnes v. Eggleston, Nos. 06 Civ. 04778(RJH)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 30, 2010
    ...enjoin conduct that violates the federal Constitution, notwithstanding the Eleventh Amendment bar." Dube v. State University of New York, 900 F.2d 587, 595 (2d Cir.1990). That doctrine extends to suits against a state official in violation of any federal law. See Kostok v. Thomas, 105 F.3d ......
  • Zhao v. State University of N.Y., No. 04-CV-0210 JFB RML.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 9, 2007
    ...claim, there is no question that SUNY is a state agency entitled to Eleventh Amendment immunity. See Dube v. State Univ. of New York, 900 F.2d 587, 594 (2d Cir. 1990) ("For Eleventh Amendment purposes, SUNY is an integral part of the government of the State [of New York] and when it is sued......
  • Request a trial to view additional results

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