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JUL 27, 1977

JUDITH KLEIN, et al., Plaintiffs,

The opinion of the court was delivered by: POLLACK

MILTON POLLACK, District Judge.

This suit was tried to the Court at a bench trial and seeks equitable relief and damages in respect of lost employment with a public educational institution.

 Jurisdiction hereof is posited on 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1343(3).

 The facts are as follows:

 The plaintiffs are eight former members of the City University of New York (CUNY) instructional staff who lost their positions in a retrenchment program implemented by CUNY in 1976 in response to the financial exigency created by state-mandated budget cuts. The defendants are the New York City Board of Higher Education (BHE), *fn1" / present and former BHE members, CUNY's chancellor and presidents of various CUNY constituent branches. *fn2"

 Plaintiffs claim that defendants' action in terminating their employment was arbitrary or capricious and that they were not afforded the procedural due process to which they are allegedly entitled. *fn3"

 The record fully establishes that no relief is due to the plaintiffs on their claims herein for the reasons appearing hereafter.

 The evidence adduced at trial consisted exclusively of a set of stipulated facts and accompanying documentary exhibits. The evidence shows that all plaintiffs were tenured or certificated *fn4" / or had received letters of reappointment for the period September 1, 1976 to August 31, 1977. All reappointments, whether by operation of tenure or certification or by letter, were made subject to CUNY's financial ability.

 CUNY first learned of its budget for the 1976-77 fiscal year on June 12, 1976. The budget, approximately $470-million, resulted from emergency state legislation to reopen the school after it was closed for lack of funds in June 1976 and to provide financing for 1976-77. The appropriation was obtained only after CUNY agreed on June 1, 1976 to require payment of tuition. The 1976-77 budget represented a decrease of 13% from that for 1975-76, and was $108-million less than the amount requested by CUNY and approved by BHE on November 24, 1975.

 CUNY allocated its budget among its various branches on the basis of a differential funding model. The model took into account differences in types of institutions, student/faculty ratios, program costs, and projected enrollment. The instructional component of each branch's budget was determined discipline-by-discipline, although no branch's budget was cut less than 10% regardless of the of the appropriate reduction indicated by the model. The branches were first informed of their respective budget reductions for 1976-77 on June 30, 1976.

 On May 24, 1976 BHE adopted certain "Guidelines and Procedures for Retrenchment" of instructional personnel (Guildelines) and also directed CUNY to implement cost-saving arrangements for consolidation of various noninstructional resources. The Guidelines ordered the president of each CUNY branch to "determine after consultation with appropriate faculty and student representatives what programs or activities are to be cut back or terminted;" required that the retrenchment plans "set forth the reasons why reduction or termination of academic or nonacademic service is required with respect to each department or function;" and commanded that the "reasons must be related to financial needs and be directed at the needs of the college and department or function."

 The BHE Guidelines further stated the criteria to be used for determining which individuals must be discontinued. Within a given department, nontenured personnel were to be discontinued first, and then certificated personnel, and then tenured personnel. Within each class, instructional staff members were to be discontinued in inverse order of length of full time continuous service, except that among nontenured personnel seniority could be disregarded for "special educational reasons." Special educational reasons were defined as reasons which are nondiscriminatory against a person and are related to the needs of the retrenchment unit or college.

 The Guidelines directed the branch presidents to determine the number of positions to be abolished in each retrenchment unit and, after such consultation with faculty committees as is deemed appropriate, identify the persons whose appointments were to be discontinued. The presidents were to then notify the affected persons at least 30 days before the discontinuances were to be effective, and to inform them of the justification for discontinuance (either length of service or a specific special educational reason) unless the entire retrenchment unit was to be abolished or the number of positions to be abolished was exactly equal to the number of nontenured persons.

 The Guidelines also set forth a review and appeals procedure. Discontinued persons were given 20 days from mailing of the notice of discontinuance to request review by committees, appointed by the respective branch presidents, of at least three members of the instructional staff. No person who participated in the recommendation of the discontinuance of an individual was eligible to serve on the review committee for that person. The review committees were authorized to review all records and conduct appropriate investigation. To an appellant was assigned the burden of proving that length of service had been incorrectly computed or that a special educational reason given was pretext for action based on constitutionally prohibited grounds, and no other issues could be raised. Appellants were accorded the right to meet with the committees, present relevant evidence, and be represented by counsel or a union representative, but they could not question the ...

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