Weiss v. Walsh

• Decision Date: 24 February 1971
• Docket Number: No. 70 Civ. 4763.,70 Civ. 4763.
• Citation: 324 F. Supp. 75
• Parties: Paul WEISS, Plaintiff, v. Reverend Michael WALSH, S.J., in his capacity as President of Fordham University; Paul J. Reiss, in his capacity as Vice-President for Academic Affairs of Fordham University; Robert Roth, S.J., in his capacity as Chairman of the Department of Philosophy of Fordham University; Ewald B. Nyquist, in his capacity as Commissioner of Education of the State of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

324 F. Supp. 75

Paul WEISS, Plaintiff, v. Reverend Michael WALSH, S.J., in his capacity as President of Fordham University; Paul J. Reiss, in his capacity as Vice-President for Academic Affairs of Fordham University; Robert Roth, S.J., in his capacity as Chairman of the Department of Philosophy of Fordham University; Ewald B. Nyquist, in his capacity as Commissioner of Education of the State of New York, Defendants.

No. 70 Civ. 4763.

United States District Court, S. D. New York.

February 24, 1971.

Jonathan A. Weiss, New York City, for plaintiff.

Royall, Koegel & Wells, New York City, by Caesar L. Pitassy, Joseph H. Spain, Edward R. Leydon, New York City, for defendants Michael Walsh, Paul J. Reiss and Robert Roth.

Louis J. Lefkowitz, Atty. Gen. of N. Y., by Joel Lewittes, Asst. Atty. Gen., for defendant Ewald B. Nyquist.

Paul, Weiss, Goldberg, Rifkind, Wharton & Garrison, New York City, by Morris B. Abram, New York City, for the amici curiae, National Retired Teachers Ass'n, Inc. and American Ass'n of Retired Persons.

OPINION

TYLER, District Judge.

Plaintiff, a metaphysician of reknown, alleges that Fordham University offered him the Albert Schweitzer Chair in Humanities only to withdraw the alleged offer on the sole ground that he had passed his sixty-fifth year. Seeking both injunctive and monetary relief, his five-part complaint asserts that the alleged conduct violates: (1) the First, Fifth, and Fourteenth Amendments of the United States Constitution and Article 1, Section 11 of the New York Constitution; (2) the "letter and spirit" of New York Education Law, McKinney's Consol.Laws, c. 16, § 239; (3) the legislative policy of New York's Education Law § 3027 and Public Authorities Law, McKinney's Consol.Laws, c. 43-A, § 2577; (4) federal policy as expressed in the Older Americans Act of 1965, 42 U. S.C. § 3001 et seq., Executive Order No. 11141, 29 Fed.Reg. 2477 (1964), and the 1946 Employment Act, 15 U.S.C. § 1021 et seq. and (5) New York Executive Law, McKinney's Consol.Laws, c. 18, § 296. Breach of contract is not alleged as a specific ground for relief. Defendants meet plaintiff's request for a preliminary injunction pendente lite with a Rule 12(c) motion for judgment on the pleadings dismissing the entire complaint. 28 U.S.C. Federal Rules of Civil Procedure.

Jurisdiction of the district court is invoked pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983, which dispenses with the requirement that available state remedies be exhausted. Jurisdiction may also be premised upon diversity of citizenship, plaintiff being a resident of the District of Columbia and all defendants, of New York. The remuneration afforded the occupant of the Chair alone exceeds the $10,000 jurisdictional minimum. 28 U.S. C. § 1332(a) (2).

The complaint alleges that a firm offer to nominate and award to plaintiff the Schweitzer Chair, of which Fordham University was the designated recipient, was made on or about April 22, 1970 by Dr. Arthur Brown, the then Vice-President for Academic Affairs at Fordham. Thereafter, by letter of September 3, 1970, defendant Reiss, Dr. Brown's successor, advised Professor Weiss that the State Department of Education had indicated its intention to refuse approval of his proposed nomination by reason of his advanced age. Thus it is, according to plaintiff, that notwithstanding that Fordham found him preeminently qualified to fill the Schweitzer Chair, the actual or intended offer was withdrawn because of the eleventh-hour interjection of an arbitrary age limitation by some state board or official.

Plaintiff, now in his seventieth year and Heffer Professor of Philosophy at Catholic University of America in Washington, D. C., states (although not by personal affidavit) that his physical health and mental capacity are excellent —i. e. that he has the requisite stamina and acuity to fulfill the responsibilities of the Schweitzer Chair. And, as counsel for the amici curiae, the National Retired Teachers Association, Inc. and the American Association of Retired Persons, argues by reference to biographies of former giants in philosophy, his prognosis for length and breadth of productivity is excellent as well. In this litigation, however, the court is called upon to judge neither the brilliance nor worthiness of a man, but the merit of his legal claims.

The plaintiff moved for a preliminary injunction pursuant to Fed.R.Civ.P. 65(b), 28 U.S.C., to assure that the Schweitzer Chair to which he lays claim will not be offered to another candidate pending the outcome of this litigation. For the primary reason that plaintiff has failed to show sufficient likelihood of success to warrant freezing the status quo, the motion for preliminary relief was denied at the conclusion of oral argument on February 5, 1971. The basis for this disposition is discussed in connection with defendants' motion for dismissal of the complaint pursuant to Fed.R.Civ.P. 12(c). Dismissal is granted in part and denied in part, the latter conditioned upon plaintiff's filing an amended complaint as directed hereinafter. Defendant Nyquist's separate motion for dismissal as to himself is also denied at this stage.

Plaintiff's so-called first "cause of action" alleges violations of the First, Fifth and Fourteenth Amendments of the United States Constitution as well as Article I, Section 11 of the New York Constitution, which is the state's counterpart of the Fourteenth Amendment. As to the claim that plaintiff's First Amendment rights are infringed by defendants' alleged refusal to nominate and approve him for the Schweitzer Chair because of his advanced years, dismissal is appropriate as a matter of law. Where denial of employment has been held to violate the First Amendment, it is not because the Amendment protects jobs, even academic ones; it is rather that it prevents the conditioning of employment on some non-exercise of speech or associational rights. United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967), Greene v. McElroy, 360 U.S. 474, 19 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). No such allegation is made herein.

Secondly, the absence of specific reference to age in the Fourteenth Amendment does not alone insulate age classifications from constitutional scrutiny any more than does the absence of mention of poverty or residency for example. Harper v. Virginia State Board of Education, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1968). But being a classification that cuts fully across racial, religious, and economic lines, and one that generally bears some relation to mental and physical capacity, age is less likely to be an invidious distinction. Even where the Equal Protection Clause is buttressed by the Sixth Amendment's cross-sectional principle respecting jury selection, the Constitution tolerates some variation in eligibility at the ends of the age spectrum. Cf. Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970), United States ex rel. Epton v. Nenna, Warden, D.C., 281 F.Supp. 388 (1970). Nor is there a constitutionally mandated minimum age for voting in state and local elections. Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970). Even assuming that equivalent importance is accorded to employment opportunity in our constitutional scheme, and given the protection afforded such opportunity by the Due Process and Equal Protection Clauses, I am constrained to hold that Professor Weiss is not the victim of an invidious and impermissible discrimination. Notwithstanding great advances in gerontology, the era when advanced age ceases to bear some reasonable statistical relationship to diminished capacity or longevity is still future. It cannot be said, therefore, that age ceilings upon eligibility for employment are inherently suspect, although their application will inevitably fall injustly in the individual case. If the precision of the law is impugnable by the stricture of general applicability, vindication of the exceptional individual may have to attend the wise discretion of the administrator. On its face, therefore, the denial of a teaching position to a man approaching seventy years of age is not constitutionally infirm. The same result obtains under Article I, Section 11 of the New York Constitution.

The...