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College professor is unsuccessful in challenging his denial of reappointment

College professor is unsuccessful in challenging his denial of reappointment

Matter of Fruehwald v. Hofstra University, ____Misc. 3d____(Nassau Co. April 19, 2010)
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Matter of Fruehwald appears to be part of a growing number of cases where a member of a law faculty commences litigation against his law school. Here, a legal writing instructor was denied a 5-year long-term renewable contract. After he accepted a one-year probationary type appointment, he sued claiming the Hofstra's decision to deny him a long-term contract was arbitrary and capricious which is the governing standard under CPLR Article 78.

After reviewing complicated procedural issues, the court concluded that Hofstra was not arbitrary and capricious, given the deference courts pay to law school decisions, because multiple observers noted issues with the petitioner's teaching performance. The court described the relevant standard as follows:

The courts should not " invade, and only rarely assume academic oversight, except with the greatest caution and restraint, in such sensitive areas as faculty appointment promotion, and tenure, especially in institutions of higher learning (Matter of Pace College Commission on Human Rights of City of New York 38 NY2d 28, 38; In re Bigler v Cornell University, 266 AD2d 92, Iv app dsmd 95 NY2d 777 and rearg den 95 NY2d 849; Loebl v New York University, 255 AD2d 257). The standard for judicial review is limited to whether the institution has acted in good faith or whether its action was arbitrary and capricious or irrational (Tedeschi v Wagner College 49 NY2d 652 , 658; see also Lipsky v New York Institute of Technology, 69 AD 3d 725). With respect to faculty appointments or the denial of appointments, a private university in New York is held to the standard of "substantial compliance" with its own rules and procedures (Gurstein v Bard College, Graduate Center for Studies in the Decorative Arts 280 AD2d 264); Loebl, supra at 258; see also Tedeschi supra).


Professor Rubinstein Comments: I am really curious as to why the plaintiff commenced litigation in the first place. Other than his personal emotions about the case [which is an important part of employment law that attorneys sometimes discount], if he researched the case law, he had to know about the extreme deference Hofstra is entitled to and he had to know that given that there were multiple negative reports about him, he had an almost impossible burden.

What makes this case so unusual is that he commenced litigation against Hofstra while still employed. My guess is that plaintiff commenced this litigation to give him some leverage if his probationary appointment is terminated. He may have been trying to develop an argument that if his probationary appointment is terminated it was in retaliation for this lawsuit. This of course, is only speculation on my part.

Mitchell H. Rubinstein

Randall Comments: Court review of university decisions concerning the appointment of faculty limited as demonstrated in Perinpanayagam v University At Buffalo & State Univ. of N. Y., 39 A.D.3d 1220.

Dr. Hiran Perinpanayagam appealed SUNY at Buffalo?s decision not to renew his appointment as an Assistant Professor in the School of Dental Medicine. Although Supreme Court annulled SUNY?s determination; the Appellate Division reversed that holding.

The Appellate Division said that ?It is well settled that judicial review of a determination of an educational institution with respect to the appointment, promotion and retention of faculty is limited,? citing a number of decisions including New York Institute of Technology v State Div. of Human Rights, 40 NY2d 316.

While the determination of an educational institution with respect to the reappointment of a faculty member is ?not entirely beyond judicial scrutiny?, the Appellate Division said that courts should only rarely exercise oversight in cases involving academic institutions of higher learning in areas such as faculty appointment, promotion, and tenure, and then only with ?the greatest caution and restraint.?

The Appellate Division, Second Department, in Matter of Lipsky v New York Institute of Technology, 69 AD3d 725, [cited in Matter of Fruehwald above], also indicated that judicial review of a university's determination to deny tenure to a faculty member is limited.

Paul Lipsky was appointed as a tenure-track, assistant professor by the New York Institute of Technology and the terms and conditions of his employment were governed by a collective bargaining agreement [CBA] and was subject to a six-year probationary period.

Denied tenure after the end of his probationary period, Lipsky filed internal appeals pursuant to the terms of the CBA. As a result, Lipsky?s probationary period for one additional year and provided for a reconsideration of his application for tenure. At the end of the year, Lipsky?s application for tenure was reconsidered and, again, denied.

Lipsky filed CPLR Article 78 proceeding seeking to annul the determination denying his tenure application, alleging, among other things, certain procedures required by the CBA were not satisfied and that the determination denying him tenure was arbitrary and capricious. Supreme Court denied the petition and dismissed the proceeding; the Appellate Division affirmed.

Noting that ?Judicial review of a university's determination to deny tenure to a faculty member is limited,? the Appellate Division said that in reviewing such a determination a court, which must not substitute its judgment for that of the university, must determine whether the determination was made in violation of the university's rules, or is arbitrary and capricious.

In this instance the Appellate Division concluded that Lipsky failed to establish that the determination denying his tenure application was made in violation of an applicable rule, or was arbitrary and capricious.

Further, said the court, while Lipsky contended that the Institute ?improperly amended the criteria for tenure and improperly failed to publish those criteria,? he agreed to the modification and who was aware of the criteria that would be considered when his tenure application was reconsidered at the end of the additional year of probation. Accordingly, Lipsky was deemed to have waived ?these arguments.?

Full post as published by New York Public Personnel Law on April 22, 2010 (boomark / email).