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October 17, 1978

Dr. Cleophaus S. WHITAKER, Jr., Plaintiff,
BOARD OF HIGHER EDUCATION OF the CITY OF NEW YORK, City University of New York (Brooklyn College), Nathaniel Schmuckler, Individually and in his capacity as Dean of the School of Social Science, Willie F. Page, Individually and in his capacity as a Professor and Chairperson Department of Africana Studies and Political Science at Brooklyn College, Defendants

The opinion of the court was delivered by: MISHLER

Memorandum of Decision and Order

Seeking both injunctive and monetary relief, plaintiff, a former professor of African Studies at Brooklyn College, commenced this suit against the College, several members of its faculty and administration, and the Board of Higher Education, charging that the defendants violated 42 U.S.C. §§ 1981 and 1983 and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (section 504). Specifically, the plaintiff claims that the defendants' conduct, which culminated in their decisions to deny him tenure and to prohibit him from using the title "Martin Luther King Distinguished Professor" (MLKDP), violated plaintiff's due process rights. Furthermore, plaintiff, an admitted alcoholic who characterizes his alcoholism as a "handicap," alleges that the defendants' conduct was proscribed by § 504, which prohibits recipients of federal financial assistance from discriminating against "otherwise qualified handicapped individual(s)."

Plaintiff has moved for a preliminary injunction ordering that the defendants treat him as a tenured Brooklyn College faculty member and restraining them from interfering with his use of the title "MLKDP" pending the final on-the-merits determination of the action. Defendants have cross-moved to dismiss the complaint, stressing, in the main, 3 points: (i) that the plaintiff fails to state a claim upon which relief can be granted under sections 1981 or 1983 since the defendants' actions did not affect any cognizable "property" or "liberty" interest entitled to due process protection; (ii) that the court lacks subject-matter jurisdiction over, and that the plaintiff has failed to state a claim under, the Rehabilitation Act since no private right of action exists under section 504; and (iii) that even if a private right of action does exist, the plaintiff should be required to exhaust certain administrative remedies prior to bringing suit. For the reasons stated below, both the plaintiff's and the defendants' motions are in all respects denied.


 As presented in the plaintiff's complaint, the factual background to this action first began to unfold in March 1974, when the plaintiff, then on leave from a position at Princeton University, met with the then Chairman of the College's Department of Africana Studies, Thomas B. Birkenhead, who was then Dean of the College, and two other faculty members. Plaintiff was told that the College was interested in offering him the position of "Martin Luther King Distinguished Professor." At that time, plaintiff was informed that the position would have an initial duration of one year, but that if he were interested it would be converted into a regular tenured appointment. Subsequently, in April 1974, plaintiff accepted a position as "MLKD Visiting P," taking an additional year's leave from Princeton. He began employment at Brooklyn College on September 1, 1974, meeting his first class in early October of that year.

 Shortly thereafter, plaintiff advised the defendant Willie F. Page, then the Acting Chairperson of the Department of Africana Studies, that he was interested in securing a permanent, tenured position as MLKDP. In response to this request, Page began to solicit information regarding the plaintiff from various institutions of higher learning, and, by a memo to Dean Birkenhead dated November 25, 1974, "formally request(ed) consideration for appointment of (plaintiff) permanently to the Department of Africana Studies as Martin Luther King Professor." In early 1975, Dean Birkenhead and Professor Page advised plaintiff that the necessary steps were being taken to have his permanent appointment confirmed.

 Suddenly, however, allegedly because he was also vying for one of a limited number of tenured positions, Professor Page, in the language of the complaint,

embarked on a campaign of falsely accusing plaintiff of being unfit to teach, and to hold a position of the Martin Luther King Distinguished Professor, and set about a campaign to prevent plaintiff's reappointment to the faculty, and falsely utilized as the grounds and falsely and maliciously represented and communicated to other members of the faculty and of the plaintiff's department that plaintiff was morally derelict, had defaulted on his performance as a teacher because of his alcoholism, had failed to give public lectures to which he had been committed, had manipulated colleagues and other faculty members to cover up his own delinquencies, and was incompetent as a teacher, unworthy as a person, unreliable as an "uncured" alcoholic, and thoroughly unworthy of reappointment. Complaint, page 6, P 3.

 As part of this campaign, Page allegedly wrote a letter to the President of the College, reiterating the charges outlined above. This letter was placed in plaintiff's personnel file. *fn1" In addition, Page allegedly harassed the plaintiff, destroyed or lost student evaluations which were favorable to the plaintiff, addressed him in obscene terms in front of his colleagues, and pressured those colleagues into voting against his reappointment. In the end, although plaintiff subsequently served several one-year appointments, *fn2" and only left the faculty in August 1978 after this suit was filed he was never granted tenure.

 Plaintiff's complaint also recites one other set of facts upon which he claims he is entitled to relief. In response to Page's actions, plaintiff attempted to appeal to defendant Nathan Schmuckler, Dean of the School of Social Sciences. Plaintiff contends that defendant Schmuckler refused to see him and actively supported and cooperated with Page in the campaign "to terminate plaintiff's employment." Complaint, page 8, § 3. After a meeting of the Department of Africana Studies where Schmuckler appeared and chastised the Department and the plaintiff, plaintiff published an open letter in the school newspaper protesting Schmuckler's conduct. Shortly thereafter, in May 1977, Schmuckler advised the plaintiff that he did not hold the position of MLKDP. In June 1977, plaintiff was informed of essentially the same information by the Executive Assistant to the President of the College who, stating that he was merely reiterating prior directions by the Administration, also directed the plaintiff to cease and desist from using the MLKDP title. Plaintiff claims that he had openly used the title since 1974 without objection by any member of the College's faculty or administration, and that "(t)o suddenly withdraw the use of this title would be tantamount to an acknowledgement of fraudulent professional conduct, and would be most damaging and humiliating to plaintiff's standing in the world of the social sciences and humanitarian scholarship." Complaint, page 10, P 5.


 I. The Due Process Claim.

 The defendants contend that the plaintiff has failed to state a claim under sections 1981 and 1983. *fn3" We note that the plaintiff's complaint is hardly a model of draftsmanship. We are also not unmindful of this Circuit's admonition that "(o)f all fields, which the federal courts should hesitate to invade and take over, education and faculty appointments at a University level are probably the least suited for federal court supervision." Faro v. New York University, 502 F.2d 1229, 1231-32 (2d Cir. 1974). Yet, we must apply the accepted rule that a "complaint should not be dismissed for insufficiency unless it appears to a certainty that the plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim." 2A Moore's Federal Practice, P 12.08 at 2271-74. Application of this standard warrants, at least at this stage of the litigation, that defendants' motion be denied.

 Admittedly, the complaint contains many allegations which are hardly of a constitutional nature, sounding in defamation, and perhaps, breach of contract. Yet, the complaint also alleges that the defendants' actions "were intended to interfere with plaintiff's rightful expectancy, property, and liberty, and were in violation of his constitutional . . . rights." Complaint, page 7, P 5. As we read that statement, in the factual context described in the complaint and outlined above, it reflects a charge that the defendants denied the plaintiff tenure, and prohibited him from using the title MLKDP, without due process of law. While the precise nature of the denial of due process is not specified, the liberal reading of the complaint which is required in determining such a motion reveals that the plaintiff is complaining of having been deprived of his tenure and title on the basis of untrue charges relating to his competency. That is, it appears as if the denial of the due process complained of is the defendants' having taken their adverse action for arbitrary and capricious reasons as a result of a mistaken belief that the plaintiff, who was an alcoholic, was unfit to teach. If plaintiff was deprived of a "property" or "liberty" interest in an arbitrary or capricious manner or for arbitrary or capricious reasons, he has been ...

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