April 20, 2010
Hofstra Legal Writing Prof Is Unsuccessful In Challenging His Non-Reappointment
Matter of Fruehwald v. Hofstra University, ____Misc. 3d____(Nassau Co. April 19, 2010), 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 court's 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
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