Law School Dean Mutua Faces Civil Suit

By MARK DAVIS
On April 11, 2012

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


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