From: Karin Mika

Sent: Wednesday, February 13, 2013 6:03 PM To: Jeffrey Malkan

Cc: LRWProf L Subject: Re: [LRWPROF-L] Jeff Malkan's cases against Buffalo

For those who stand up to injustice directed at themselves or others, I applaud you. For those who must keep silent in the face of paying rent or health care premiums, I understand. But what has happened to many who don't talk about it can happen to anyone and has happened to an awful lot of people. The more that playing fast and loose with the rules is pointed out, the more it benefits the whole, so I thank you Jeff for having the courage to go through this. I understand that there are two sides to every story (and a bunch of good people teaching at your former school), but your courage in going forward has at least allowed the courts to seemingly find that something was rather amiss in what happened. For those who might face that in the future, I think that's important.

I think I would also be remiss if I didn't point out that Ralph has been doing this type of thing all his career. and risked an awful lot when he campaigned publicly against what happened with our dear friend Molly Lien. Although I don't think I'm the one to give the history lesson right now, I think one might be in order. It's all well and good that we are a collegial profession that can discuss ideas about teaching and share material selflessly, but our history is that bad things do happen to good people, and if we want to assure the continuation of our increasing status and security, we all need to be aware of that and act when necessary, even when there is a personal cost involved.

Karin

On Wed, 13 Feb 2013 14:50:24 -0500, Jeffrey Malkan wrote:

Colleagues, I’ve been asked by several members of this listserv about the story behind my message this morning. I apologize for assuming that everyone was already familiar with the situation in Buffalo. I’m copying, below, an article from the university newspaper that appeared last spring and gives at least a partial account of the ongoing attack on academic freedom and faculty governance at the law school. As is often the case, the legal writing faculty (specifically me, but also some of my LRW colleagues) were the weakest and most tempting targets for intimidation and retaliation. Such is the nature of bullying, even among adults, even among law professors. Sincerely (again), Jeffrey

Law School Dean Mutua Faces Civil Suit

By MARK DAVIS

Staff Writer

Published: Wednesday, April 11, 2012

Updated: Wednesday, April 11, 2012 02:04

On March 23, former UB Law Professor Jeffrey Malkan filed a civil rights lawsuit against Law School Dean Makau

W. Mutua in the federal District Court of Buffalo. The suit alleges that two months after Mutua became dean in

2008, he illegally fired Malkan by violating Malkan’s right to due process under the 14th Amendment and barring

Malkan access to a mandatory faculty review procedure.

Malkan, former director of the law school’s Legal Research and Writing program (LRW), alleges that Mutua failed

to follow non-discretionary faculty review procedures required under Malkan’s contract with the school. The lawsuit

also names the current vice dean for legal skills, Charles P. Ewing, who allegedly worked in conspiracy with Mutua

to block Malkan’s access to a mandatory faculty grievance process, thus allowing Ewing to become director of the

LRW soon after Malkan was fired.

Malkan was fired from the law school because Mutua planned on eliminating the LRW program from the school’s

curriculum, a position Malkan had maintained since 2000, the lawsuit alleges. In a letter to Malkan informing him of

his termination, Mutua said the new Skills Program (created after the LRW’s termination and awarded Ewing) was

an appropriate and legal substitution.

“The termination of the Research and Writing Program and its replacement by the Skills program meet the

requirements of this rule,” Mutua wrote in the letter, obtained by The Spectrum.

Malkan also alleges that Mutua did not allow the faculty to vote on the decision to fire him, a requirement stated in

Malkan’s contract, which violated due process. Malkan maintains that there were no legal grounds for his

termination and says he is bewildered by Mutua’s actions.

“There’s nothing I can really speculate on… I had made recommendations for upgrades with the legal writing

program…[including] upgrading the status of the instructors, improve the curriculum, add a third semester…These

were all things that were evolutionary changes that were in the works,” Malkan said. “But I can’t say that anyone

ever said anything of my job performance, much less my teaching performance. That’s why I wanted to meet with

him. I wanted to find out: ‘So what’s the problem? Let’s talk about it.’ And he refused to meet with me.”

Mutua became interim dean in January 2008. He did not respond to The Spectrum’s requests for an interview.

Malkan claims that even if the school had eliminated the LRW program, his dismissal would remain illegal.

“Even if they changed the program, they did not eliminate my job. There was someone still teaching the same

exact course as me,” Malkan said. “My contract said that regardless of any changes to the legal writing program, I

would still be a clinical professor and I could teach other courses.”

UB Law Professor Martha T. McCluskey said Malkan’s dismissal and the administration’s unwillingness to settle

his case have contributed mistrust among the faculty.

“I understand that in part the administration argued that the program for which [Malkan] worked was terminated,

but this argument seems dubious,” McCluskey said in an email. “The legal writing program in which he worked was

replaced with a program with a different title, but without that much substantive difference.”

Soon after he left UB three years ago, Malkan was in line for a position at the Charlotte School of Law in North

Carolina. Because of rules set by the Association of American Law Schools, the school was obligated to ask for

UB’s permission to recruit Malkan. Mutua blocked Malkan from the job by denying the school’s request.

Malkan, who currently lives on Long Island, has been unemployed since leaving UB in 2008.

“Many faculty have concerns that the administration gave short shrift to contractual rights, as well as basic decent

treatment of [Malkan] and to the process by which his contract was terminated…this firing contributed to fear and

low morale among other faculty,” McCluskey said.

UB spokesman John Della Contrada declined to comment on the issue, beyond the following:

“The university’s position is that [the UB Law School’s] actions were lawful and appropriate,” Della Contrada said

upon The Spectrum’s request for an interview. “We are not going to discuss the details of pending litigation.”

Malkan has already filed two other lawsuits against UB. One appeared before the Public Employees Relations

Board (PERB) in April 2010. Another was filed in the New York Court of Claims alleging breach of contract. The

latter was filed on behalf of the United University Professions union (UUP) and the New York State United

Teachers organization (NYSUT).

Malkan said the litigation before PERB, which is expected to announce a ruling on May 1, claims that Mutua acted

out of “anti-union animus” and violated due process requirements in retaliation for the efforts of Tara Singer-

Blumberg, the UUP’s labor relations specialist at UB, Jeff Reed, the UB director of employee relations, and Scott

Nostaja, the former UB vice president of human resources.

Malkan says that in 2008 he went to Singer-Blumberg, who promised she could do two things to help him: one, she

could ask Mutua for a “name clearing message” – an official letter assuring all UB faculty that Malkan was not

being fired over any type of scandal; two, she could try to arrange a meeting with Mutua to discuss the details of

the legal writing program.

Singer-Blumberg went to Reed to try and secure these two requests for Malkan. Reed approached James R.

Newton, the vice dean for administration at the Law School, who, according to Malkan, was unsuccessful.

Singer-Blumberg then tried to reach above Newton’s decision and approached Nostaja, who went directly to Mutua

with both requests but was subsequently denied.

A few months later, Malkan received official word from Mutua that the dean was terminating his contract.

“I think it’s important that, with regard to a public law school, we ask not simply whether or not the administration

legally can get away with a particular action,” McCluskey said. “Instead a law school should be a model of treating

people with high ethical standards and professionalism. We try to encourage integrity in our students: our

administration sends students the message that as professionals they should resolve uncertainty against their self-

interest.”

Malkan says both Mutua and the school have failed to make any indication that they will settle out of court for any

of the lawsuits. Malkan is suing for approximately $1.3 million in breach of contract damages.

Upon arriving at UB, Mutua sought specific faculty changes that Malkan referred to as a “hit list.” Along with

Malkan, Mutua fired the director of the Baldy Center, Lynn Mather; the director of the law school information

technology department, Alexander Dzadur; and, according to Malkan, forced the resignation of the director of the

law library, Jim Millis.

Malkan also said the law school faculty called a meeting to vote “no-confidence” in Mutua being the dean back in

November 2010. The faculty was apparently upset, believing that Mutua had been forced on them as the new dean

of the Law School.

“They never wanted [Mutua] to be the dean…[UB President and former Provost Satish K.] Tripathi and [former UB

President John B.] Simpson came over and told the faculty that they better get in line and shut up,” Malkan said.

“There’s a lot of unhappiness with the way Mutua was chosen and basically imposed on the faculty. The faculty

have voiced their disapproval, but Tripathi and Simpson were very firm that they better learn to live with him.”

When asked what type of response or support he has received from former colleagues, Malkan said they haven’t

been very helpful and that they’re “looking the other way.”

Email: news@ubspectrum.com

http://www.ubspectrum.com/news/law-school-dean-mutua-faces-civil-suit-1.2844432?pagereq=1

From: Brill, Ralph

Sent: Wednesday, February 13, 2013 12:03 PM To: LRWPROF-L@iupui.edu

Subject: [LRWPROF-L] Jeff Malkan's cases against Buffalo

B way of explanation for Jeff's post, here is an article on the status

of his three law suits against Buffalo Law and its dean: (the final

decisions in these actions may have strong impact on the

interpretations of the ABA's Standards on Job Security and AAUP

rules on academic freedom. (I should point out that Jeff was at one

time a Visiting Assistant Professor at Chicago-Kent, during Molly

LIen's time as Director. He also taught Legal Writing at Stanford,

Georgia and St. John's). A copy of Judge Acara's findings is linked at

the bottom of this page:

RLB SOURCE, NATIONAL LAW JOURNAL ..... By John Caher,

A law professor challenging his ouster from University at Buffalo Law School can pursue

simultaneous actions in federal court and the state Court of Claims, a Western District judge has

held.

Judge Richard Arcara found no reason to stay Professor Jeffrey Malkan’s federal action, which

alleges that officials at Buffalo Law deprived him of a property right without due process, while

an overlapping breach of contract action continues in the Court of Claims.

Arcara said in Malkan v. Mutua, 12-cv-236, that the two cases are not “entirely duplicative” or

“genuinely parallel,” and held the defendants to a considerably higher “exceptional

circumstances” standard than the one applicable when parallel actions are pending in state

court. He said the defendants “fail even to make the preliminary, threshold showing that is

necessary to warrant the Court’s consideration of defendants’ exceptional circumstances motion

for a stay.”

Malkan was hired as a clinical associate professor and director of legal research and writing

program in 2000. He was promoted to professor in 2006. At that time, he entered into a three-

year employment contract under state university policy. However, since American Bar

Association accreditation standards call for five-year contracts for full professors, Malkan’s

contract included an automatic two-year extension.

According to the decision, Makau Mutua, shortly after becoming interim dean in 2008, removed

Malkan as director of the legal research and writing program. Six months later, Mutua notified

Malkan that his contract as a clinical professor would expire at the end of the 2008-09 academic

year and would not be renewed. Malkan contends Mutua refused to discuss the matter with him

or the faculty grievance committee, and that the committee chairman, defendant Charles Ewing,

refused to take the matter before the faculty, as required.

Malkan responded with several actions: a civil rights claim in federal court, a breach of contract

action in state court and an administrative matter before the Public Employment Relations

Board in Albany.

In the Court of Claims case, the state university system claims that, ABA standards

notwithstanding, the former dean had no right to promise Malkan an automatic two-year

extension to the three-year contract, in violation of state policy.

The federal case before Ancara is a Fourteenth Amendment claim alleging that the employment

contract gave Malkan a property right that could only be rescinded with due process. The

defendants moved to stay the federal matter until the state case was resolved.

Arcara, however, refused.

He found that a ruling against Malkan in the Court of Claims “would not necessarily preclude a

finding by this Court of a viable property interest in the plaintiff’s continued employment with the

State.” He also said that federal courts are justified in staying an action within its subject matter

jurisdiction in deference to a state court action “only in truly exceptional circumstances” that do

not exist here.

“The Second Circuit has held that the existence of related and overlapping subject matter with a

state proceeding is insufficient to permit entry of a stay,” Arcara wrote, citing Alliance of

American Insurers v. Cuomo, 854 F.2d 591 (1988).

Arcara also said the defendants in the two actions are different, with the Court of Claims action

targeting the State University of New York (SUNY) system and the federal claim naming Mutua

and Ewing as defendants.

“While the defendants are in privity with SUNY for some purposes, and may have some

interests aligned with those of SUNY in the Court of Claims proceeding, the university is distinct

from the defendants, who are sued here in their individual capacities and face personal liability

without the protection of the State’s sovereign immunity,” Arcara wrote.

The judge rejected most of the defendants’ motions to dismiss various elements of the claim,

generally on Eleventh Amendment immunity grounds.

For instance, the court said there is no Eleventh Amendment bar to Malkan’s claim for

reinstatement to the position of clinical professor or demand for expungement of any derogatory

information in his personnel file. However, Arcara did hold that the federal court cannot award

Malkan back pay or front pay in equitable relief.

“Because these forms of relief would impose a monetary liability directly on the state treasury,

they are barred by the doctrine of sovereign immunity and the Eleventh Amendment to the

United States Constitution,” Arcara wrote.

He noted that the Second Circuit has specifically found that a demand for back pay is barred by

the Eleventh Amendment (see Dwyer v. Regan, 7787 F.2d 825, 1985). The circuit apparently

has not directly addressed front pay, Arcara noted, but the issue is the same.

“Although the Second Circuit does not seem to have ruled on this specific issue, the Court finds

that front pay is unavailable as an alternative to reinstatement in an official-capacity suit against

a state official where it will be paid from a state treasury,” Arcara said.

In an interview, Malkan said he is seeking punitive damages and relief for emotional harm in the

federal action, $1.3 million in back and front pay in the Court of Claims and reinstatement plus

back pay from public employment board.

“The decision means we go forward and they will have to answer the complaint,” Malkan said. “I

think the judge signaled pretty strongly that if the facts as alleged prove true, there has been

some serious wrongdoing by the dean and vice dean.”

Malkan, who lives in Suffolk County, said he has no intention of returning to Buffalo, regardless

of the action for reinstatement.

“I have no real desire to stay someplace if the dean doesn’t like me and I am not appreciated,”

he said.

Malkan is represented in the federal action by Frederic Ostrove of Leeds Brown Law in Nassau

County.

Ostrove said the decision “certainly broadens the available forums of relief and opens the

possibility of going to federal court” and eliminating the “home field advantage” of the attorney

general.

“This decision ensures that professors can exercise their constitutional right to have their

dispute by a jury as opposed to one Court of Claims judge,” Ostrove said.

The defendants were represented by Assistant Attorney General David Sleight. The attorney

general’s office declined to comment.

Judge Acara's order: https://mail-attachment.googleusercontent.com/attachment/u/0/?ui=2&ik=adf2afa2af&view=att&th=13cd47a272ac7cd9&attid=0.2&disp=inline&safe=1&zw&saduie=AG9B_P_LXEj7l4gYOywtdmEU2_2J&sadet=1360774648349&sads=aws545YclegTJjXc8VPCpLg--70