Faculty of City University of New York School at Queens College v. Murphy

• Citation: 140 Misc.2d 525,531 N.Y.S.2d 665
• Parties: , 48 Ed. Law Rep. 617 The FACULTY OF the CITY UNIVERSITY OF NEW YORK SCHOOL AT QUEENS COLLEGE: Barbara Bezdek, Mary Lu Bilek, Beryl Blaustone, Richard Boldt, Susan Bryant, Janet Calvo, Susan Carpenter, Carl Cooper, Rhonda Copelon, John Farago, Victor Goode, Sidney Harring, Jack Himmelstein, Sharon Hom, Ellen Hyman-Browne, Ellen James, Dinesh Khosla, Gregory Koster, Homer La Rue, Howard Lesnick, Julie Lim, Dorothy McCarrick, Joyce McConnell, Vanessa Merton, William Mills, Philip Nash, Paul O'Neil, Daniel Pochoda, Merrick Rossein, Bettie Scott, Patricia Williams, Richard Wilson, Jean Zorn, Plaintiffs, v. Joseph S. MURPHY, Chancellor of the City University of New York, Defendant.
• Decision Date: 20 May 1988
• Court: New York Supreme Court

Page 665

531 N.Y.S.2d 665

140 Misc.2d 525, 48 Ed. Law Rep. 617

The FACULTY OF the CITY UNIVERSITY OF NEW YORK SCHOOL AT QUEENS COLLEGE: Barbara Bezdek, Mary Lu Bilek, Beryl Blaustone, Richard Boldt, Susan Bryant, Janet Calvo, Susan Carpenter, Carl Cooper, Rhonda Copelon, John Farago, Victor Goode, Sidney Harring, Jack Himmelstein, Sharon Hom, Ellen Hyman-Browne, Ellen James, Dinesh Khosla, Gregory Koster Homer La Rue, Howard Lesnick, Julie Lim, Dorothy McCarrick Joyce McConnell, Vanessa Merton, William Mills, Philip Nash Paul O'Neil, Daniel Pochoda, Merrick Rossein, Bettie Scott Patricia Williams, Richard Wilson, Jean Zorn, Plaintiffs, v. Joseph S. MURPHY, Chancellor of the City University of New York, Defendant.

Supreme Court, New York County, IAS Part 4.

May 20, 1988.

Kaplan, Russin, Vecchi, Kirkwood & Peroff (Jeffrey E. Glen, New York City, of counsel), for plaintiffs.

Robert Abrams, Atty. Gen. by Jeffrey I. Slonim and Anne B. Ehrenkranz, Asst. Attys. Gen., for defendant.

EDWARD J. GREENFIELD, Justice.

The issue to be determined in this case is the extent to which the Chancellor of the City University of New York has the discretion to disapprove recommendations for tenure previously made by faculty committees on the basis of approved criteria when the law vests the power to grant tenure pursuant to such criteria exclusively with the Board of Trustees of the City University. This court does not seek to interject itself in basic judgments of academic competence, but must scrutinize the exercise of such judgments by those in academia to ascertain if decisions about law professors were made in accordance with law.

Plaintiffs, a group of law professors, who denominate themselves as the Faculty of the City University of New York Law School at Queens College have, in this action for declaratory and injunctive relief, moved for a preliminary injunction to compel defendant Joseph S. Murphy, Chancellor of the City University of New York, to make an interim re-appointment of two of the law school professors as associate professors without tenure for the 1988-1989 academic year pending a re-evaluation of their applications for tenure.

The City University of New York ("CUNY") is a public university administered pursuant to Article 125, Secs. 6201-6233 of the New York State Education Law. It is composed of community colleges and senior colleges in all boroughs of New York City, as well as a graduate division. The legislative intent in providing state support for the system is explicated in Sec. 6201:

"3. The legislature's intent is that the city university be supported as an independent and integrated system of higher education on the assumption that the university will continue to maintain and expand its commitment to academic excellen and to the provision of equal access and opportunity for students, faculty and staff from all ethnic and racial groups and from both sexes.

4. The city university is of vital importance as a vehicle for the upward mobility of the disadvantaged in the city of New York ...

5. Only the strongest commitment to the special needs of an urban constituency justifies the legislature's support of an independent and unique structure for the university. Activities at the city university campuses must be undertaken in a spirit which recognizes and responds to the imperative need for affirmative action and the positive desire to have city university personnel reflect the diverse communities which comprise the people of the city and state of New York. In its urban environment this commitment should be evident in all the guidelines established by the board of trustees for the university's operation, from admissions and hiring to contracting for the provision of goods, services, new construction and facilities rehabilitation."

The City University Law School was established at Queens College in 1983 as a constituent element of the university system with the proclaimed mission of training potential members of the Bar for practice in the public interest, to "serve the underserved", and through teaching methods blending practical and analytic training, to devise a new clinical methodology for acquainting members of groups presently unrepresented in the legal profession with the lawyering process. Its proud motto is "Law in the Service of Human Needs." Its emphasis on practical confrontation and the clinical dealing with "real world" problems in a holistic approach to the law would leave the devotees and disciples of the appellate case analysis pioneered by Christopher Columbus Langdell aghast, and sadly shaking their heads. While the new law school has stirred accolades and enthusiasm in some quarters of the world of legal education, it has also aroused a considerable degree of skeptical eyebrow raising. The school attempts to carry out its "mission" with great zeal and fervor and with a law school faculty and student body composed largely of women and minorities. According to some, it has had a major impact on reshaping the thinking about legal education in our times; to others, it has demonstrated marked ineptitude, as illustrated by the fact that only a disproportionately small percentage of its initial graduating classes were about to pass the New York State Bar Examination.

This lawsuit turns on the rejection by the Chancellor of two members of the original founding faculty who, after teaching for five years, would have acquired tenure if reappointed. Pursuant to Education Law Sec. 6212(3), if a faculty member has served in a teaching position for five successive years and is re-appointed for a sixth year, that faculty member is accorded tenure and remains as a permanent member of the teaching staff and cannot be removed except for good cause shown, and with built-in procedural safeguards. Education Law Sec. 6212(1)(c). Until that time, a non-tenured teacher like other probationary government employees, may be discharged or denied re-appointment without any reason being given. Pauk v. Board of Trustees, 119 Misc.2d 663, 464 N.Y.S.2d 953, mod. on other grounds 111 A.D.2d 17, 488 N.Y.S.2d 685, aff'd. 68 N.Y.2d 702, 506 N.Y.S.2d 308, 497 N.E.2d 675.

The CUNY Law School having been in operation for five years, there were seven members of the original faculty whose reappointment for the 1988-1989 academic year would have given them the much coveted tenure. One of the faculty members withdrew his name from consideration, but the six others (including two librarians), were initially evaluated and approved unanimously by the law school committees concerned and then by a Joint Law School--Queens College Review Committee. After unanimous approval by them of all six candidates, the President of Queens College then transmitted the recommendations to the Chancellor of the City University.

The Review Committee, in its approval of tenured status, expressed some uncertainty as to the appropriate standards to be applied for re-appointment. The Chancellor and the President, instead of transmitting the recommendations of the three committees and the Dean to the Board of Trustees, jointly notified all the candidates that the procedures adopted in approving their appointment were procedurally lacking in that there was inadequate documentation of their teaching effectiveness, and particularly that the Review Committee had not made appropriately searching inquiry into the qualifications called for by the Law School Governance Plan. Consideration of the candidates was remanded in all cases to the Review Committee to consider further "evidence of both faculty and student evaluation of your teaching effectiveness."

After the nominations had been sent back for reconsideration, the Review Committee, which was composed of three members of the Law School faculty and three faculty members from Queens College, appears to have disagreed on the criteria to be applied. Nevertheless, four of the candidates were unanimous approved. The vote for approval of Professor Merton was 4-1 with one abstention. The vote for approval for Professor La Rue was 3-2 with one abstention. Each of the negative votes and abstentions were by members of the college faculty, while the law school faculty voted unanimously for all candidates. The recommendations were once again sent on to the President of Queens College and the Chancellor. The Chancellor and the President then wrote to Professor La Rue and Professor Merton, who had not achieved unanimous votes on the second go-round, advising them that they would not be recommended for reappointment and that their teaching contracts would not be renewed. The Chancellor declined to pass their cases on to the Board of Trustees of the City University for consideration.

There were widespread protests from the faculty, from the student body and from teachers at other law schools about the rejection of Professors La Rue and Merton. This action was then commenced against the Chancellor, not only by Professors La Rue and Merton themselves, but by 31 other members of the Law School faculty. The complaint asks for a declaratory judgment that it is the tenure criteria of the law school which are those applicable to appointments of the law school faculty, that Professors La Rue and Merton have satisfied all lawful prerequisites for tenure and further, that the denial of tenure to Professor La Rue, who is black and Professor Merton, who is female, while tenure was granted to three white males, is a violation of Title VII of the Civil Rights Act of 1964 and of Section 296 of the New York Executive Law, giving rise to a cause of action under 42 U.S.C. Sec. 1983. The complaint further asks for a permanent injunction to compel Chancellor Murphy to comply with the established governance and tenure review system and to transmit to the City University Board of Trustees the recommendation that Professors La Rue and Merton be re-appointed with tenure or a statement of reasons for a refusal to so recommend.

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