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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, Ive 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. Im 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),


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 Malkans right to due process under the 14th Amendment and barring Malkan access to a mandatory faculty review procedure. Malkan, former director of the law schools Legal Research and Writing program (LRW), alleges that Mutua failed to follow non-discretionary faculty review procedures required under Malkans 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 Malkans 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 schools 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 LRWs 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 Malkans contract, which violated due process. Malkan maintains that there were no legal grounds for his termination and says he is bewildered by Mutuas actions. Theres 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 semesterThese were all things that were evolutionary changes that were in the works, Malkan said. But I cant say that anyone ever said anything of my job performance, much less my teaching performance. Thats why I wanted to meet with him. I wanted to find out: So whats the problem? Lets talk about it. And he refused to meet with me. Mutua became interim dean in January 2008. He did not respond to The Spectrums 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 Malkans dismissal and the administrations 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 UBs permission to recruit Malkan. Mutua blocked Malkan from the job by denying the schools 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 terminatedthis 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 universitys position is that [the UB Law Schools] actions were lawful and appropriate, Della Contrada said upon The Spectrums 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 SingerBlumberg, the UUPs 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 Newtons 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 its 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 selfinterest.

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. Theres 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 havent been very helpful and that theyre looking the other way. Email:

From: Brill, Ralph Sent: Wednesday, February 13, 2013 12:03 PM To: 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:






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 Malkans 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 Courts 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 threeyear employment contract under state university policy. However, since American Bar Association accreditation standards call for five-year contracts for full professors, Malkans 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 plaintiffs 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 States 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 Malkans 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 doesnt 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 generals office declined to comment. Judge Acara's order: 272ac7cd9&attid=0.2&disp=inline&safe=1&zw&saduie=AG9B_P_LXEj7l4gYOywtdmEU2_2J&s adet=1360774648349&sads=aws545YclegTJjXc8VPCpLg--70