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Former UB law professor proceeds with federal suit against UB Law School

Asst. Features Editor

Published: Sunday, April 28, 2013

Updated: Monday, April 29, 2013 23:04

A former law school professor has filed a federal lawsuit against UB’s Law School Dean Makau Mutua for firing him without cause and for breach of contract.

Jeffrey Malkan, who taught from 2000-09, claims he was unjustly fired in 2009 and has been unable to get a job since because Mutua has refused to write him a letter of recommendation. He is asking for $1.3 million from the state in back and front pay in the Court of Claims and reinstatement plus back pay from the public employment board. 

Mutua declined comment due to pending litigation in the case.

Malkan was hired in 2000 as a clinical associate professor and director of the Legal Research and Writing program (LRW). In 2006, Malkan was promoted to professor and entered into a three-year employment contract, under SUNY policy. American Bar Association (ABA) accreditation standards require full professors have five-year contracts. Following ABA standards, Malkan’s contract included an automatic two-year extension.

“To be terminated for cause from a tenured position is the end of your career,” Malkan said. “The cause that [Mutua] gave in the letter where he terminated me, he said the reason why he was terminating my employment was that my job no longer exists because he’s terminating the entire legal program. The only thing they changed about the legal writing program is instead of calling it the Legal Research and Writing, now they call it Legal Analysis Writing and Research. Otherwise, it’s the same exact course and the same teachers. Everything is the same – the same curriculum.”

The suit alleges that after Mutua became dean of the law school in 2008, Malkan was illegally fired and Mutua violated Malkan’s right to due process under the 14th Amendment and barred access to a mandatory faculty review procedure. 

The lawsuit also names Charles Ewing, the current vice dean for academic affairs, who allegedly worked in conspiracy with Mutua to block Malkan from the mandatory faculty grievance process.

Malkan also claims Mutua did not allow the faculty to vote on his dismissal, as stated in his contract, which violated due process. Malkan said there were no legal grounds for his termination.

In emails obtained by The Spectrum sent to Mutua on Oct. 19, 2010, three tenured faculty members requested a special faculty meeting on Oct. 26, 2010, which would have been up for the consideration of a vote of no confidence in Mutua as dean of the law school. President John B. Simpson and Provost Satish Tripathi – who both held those positions at the time – asked the faculty to attend the meeting that would be held on Oct. 22. Mutua declined the meeting despite receiving a request signed by three members of the faculty in accordance with faculty bylaws.

On Oct. 25, following a faculty meeting on Oct. 22, Simpson and Tripathi sent an email to the faculty addressing the meeting regarding Mutua.

According to an anonymous source in the law school, the faculty never voted on the question of no confidence in Mutua but voted to put it on the agenda for the next meeting and discussion. This triggered a meeting with Tripathi and Simpson, who then said the dean “served at their pleasure indefinitely and, in effect, that they were not interested in further discussion with the faculty about any leadership concerns,” according to the anonymous source.

“In response to our request for specific suggestions, some members of the law faculty have suggested that the appointment of Dean Mutua be terminated ‘no later than June 2011,’” Simpson and Tripathi wrote in the email. “With this communication, we wish to indicate to you that the dean has our full confidence and support. During Dean Mutua’s tenure, the Law School has made substantial progress and we believe that the dean has positioned the School well to continue to serve, as do all deans at the pleasure of the provost and president, or until he decides to retire from the deanship.”

Malkan filed an improper practice charge with the Public Employment Relations Board (PERB), claiming that following his notice of dismissal, UB denied Malkan renewal of his appointment as clinical professor.

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