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11/10/2017 Federal case that roiled UB Law School now over - The Buffalo News

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Federal case that roiled UB Law


School now over
By Jay Tokasz (http://buffalonews.com/author/jay_tokasz/) | Published 8:00 a.m. November
10, 2017

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http://buffalonews.com/2017/11/10/federal-case-that-roiled-ub-law-school-now-over/ 1/11
11/10/2017 Federal case that roiled UB Law School now over - The Buffalo News

An eight-year
Sections legal Search
battle that helped expose (http://buffalonews.com/)
deep strife within the University at Buffalo Law
School is nally over.

The U.S. Court of Appeals for the Second Circuit


af rmed a federal district court decision in favor
of Makau W. Mutua, the law school's former
dean. The ruling marks the end of the legal
process for a former professor, Jeffrey Malkan,
who sued Mutua and the university claiming he
was wrongfully terminated. The case is unlikely
to move onto the U.S. Supreme Court.

"There's nothing I can do. This is nal. I'm retired,


I guess. Prematurely retired," said Malkan, who
hasn't found another job in academia since losing
his UB post. "I haven't been able to get a fair
hearing anywhere."

Mutua resigned as dean in 2014 amid criticism of


his management and remains on the UB Law
School faculty. He described the court's decision
as a "total, unequivocal vindication."

"I had no doubt that Jeff Malkans claims against


me and UB were malicious, unfounded and
frivolous. He lost in every single forum where he
sued PERB, state courts, U.S. District Court for
the Western District of New York, and now nally
in the U.S. Court of Appeals for the Second
Circuit," Mutua said in an email to The News.

Magistrate backs former UB law school


dean in suit over firing of professor
By Phil Fairbanks: For three years, allegations of perjury
divided the University at Buffalo Law School. Faculty
took sides when the accusations were rst levied against
then Dean Makua W. Mutua, and it was t...

http://buffalonews.com/2017/11/10/federal-case-that-roiled-ub-law-school-now-over/ 2/11
11/10/2017 Federal case that roiled UB Law School now over - The Buffalo News

Malkan, 63, had taught legal research and writing


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since 2000 at UB. He claimed Mutua wrongfully
terminated him in 2008 and then lied twice
under oath about it.

The case laid bare a rift at the law school


between several highly regarded senior faculty
members and Mutua, a world renowned human
rights activist. The turmoil occurred as the
school was suffering through steep enrollment
declines. Faculty produced a scathing evaluation
of Mutua's leadership and nearly took a vote of
no-con dence in him. In addition, nine senior
law professors went on record in court papers
supporting Malkan's account of a tenure and
promotion vote that was the crux of the
professor's lawsuit.

The professors led a complaint against the


former dean with the Attorney Grievance
Committee, Eighth Judicial District in Buffalo,
seeking public censure or disbarment of Mutua
over alleged perjury in the Malkan case.

Mutua denied he had made any false statements


and told the committee the complaint was led
by individuals who opposed his tenure as dean or
were removed by Mutua from administrative
posts at the law school.

"All of them are driven by a bilious personal


vendetta against me," Mutua wrote in his 2015
reply to the grievance committee.

At the time of his resignation, Mutua and other


UB administrators maintained that the
allegations of perjury and disagreements with
faculty did not in uence his decision to step
down after seven years as dean.

http://buffalonews.com/2017/11/10/federal-case-that-roiled-ub-law-school-now-over/ 3/11
11/10/2017 Federal case that roiled UB Law School now over - The Buffalo News

In an email this week, Mutua suggested that race


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played a factor in the allegations against him.
Mutua was born in Kenya and is black.

He blamed a "small cabal of racist law faculty who


had trouble accepting that a competent, reform-
minded and independent black man was running
the Law School" for taking up what he termed
Malkan's "groundless cause."

Ultimately, judges at various levels decided that


Mutua had done nothing wrong and chided
Malkan and his former attorney, Frederic D.
Ostrove, for continuing to rehash the alleged
perjury. In 2015, U.S. Magistrate Judge H. Kenneth
Schroeder recommended dismissing the
wrongful termination suit and ned Ostrove
$10,000 for his conduct in pursuing the perjury
allegations. U.S. District Judge Michael A. Telesca
of Rochester adopted Schroeder's
recommendations a year later.

Circuit Judges Ralph K. Winter, John M. Walker Jr.


and Rosemary S. Pooler in New York City heard
Malkan's appeal in October and af rmed
Telesca's decision, including sanctioning Malkan
and Ostrove.

"The district court reasonably found that the


motion had no factual or legal basis, and was
meant to harass Malkan's adversary," the panel
wrote in its decision.

The panel also found that Mutua didn't violate


Malkan's due process rights because his position
at UB was a term appointment capped at three
years, and State University of New York
regulations do not create a "legal right" in any
other appointment or renewal.

http://buffalonews.com/2017/11/10/federal-case-that-roiled-ub-law-school-now-over/ 4/11
11/10/2017 Federal case that roiled UB Law School now over - The Buffalo News

Malkan labeled the decision "inexplicable."


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"I didn't have a capped contract," he said. "It was a
renewable contract. The only question was
whether it was a presumptively renewable
contract."

In his email, Mutua said he was pleased the court


sanctioned Malkan.

"Its a good lesson for him and those who would


try to use the courts for personal and bigoted
vendettas," Mutua said.

James A. Gardner, a veteran faculty member,


replaced Mutua as interim dean for more than a
year until the hiring of Aviva Abramovsky, a
former associate dean at Syracuse University of
College of Law. Abramovsky took over as dean of
the UB Law School this past summer.

Malkan said he spent $130,000 pressing his case


in court. He also said the university blackballed
him from nding employment at other schools by
refusing to let potential employers know that he
had left UB in good standing.

During the lengthy legal battle, Malkan frequently


railed against Mutua and the university in emails
to his former colleagues at the Law School. His
references to mass shooting in three emails in
2015 prompted university of cials to ban Malkan
from campus a move some professors
considered outrageous and overreactive.

http://buffalonews.com/2017/11/10/federal-case-that-roiled-ub-law-school-now-over/ 5/11
11/10/2017 Federal case that roiled UB Law School now over - The Buffalo News

Former UB law professor


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campus after emails cross line
By Jay Tokasz: Former law professor claims further
stigma after latest campus shootings...

Malkan, who lives on Long Island, said he posed


no threat and has no reason to return to campus,
other than to retrieve several hundred academic
and personal books from O'Brian Hall.

"I wish I could get them back. I doubt they're still


there," he said. "That's the only reason I'd want to
go back to campus, but I'd probably send
someone else to do it for me."

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