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SELZER v. BERKOWITZ

October 27, 1978

MICHAEL I. SELZER, Plaintiff, against MORTON BERKOWITZ, PHILLIPA STRUM, ELLEN FREY-WOUTERS, MARTIN FLEISHER, MICHAEL KAHAN, HERBERT WEISS, ROBERT ENGLER, DAVID W. ABBOTT, ROBERT CURVIN, MATHAN SCHMUKLER, DONALD R. REICH, JOHN W. KNELLER, and HAROLD M. JACOBS, Chairman, and EDITH B. EVERETT, RONALD T. GAULT, JACK JOHN OLIVERO, DAVID Z. ROBINSON, PATRICIA CARRY STEWART, LORETTA A. CONWAY, WALTER H. CROWLEY, ARMAND E'ANGELO, GURSTIN D. GOLDIN, ALPERT V. MANISCALCO, DAVID VALINSKY, EMANUAL R. PIORE, JOAN B. MAYNARD, JOAQUIN RIVERA and EDWARD A. ROBERTS, Members of the Board of Higher Education of the City of New York, THE BOARD OF HIGHER EDUCATION OF THE CITY OF NEW YORK, and ROBERT J. KIBBEE, Chancellor of City University of New York, Defendants.


The opinion of the court was delivered by: PLATT

OPINION and ORDER

Plaintiff has brought an action for declaratory injunction and monetary relief pursuant to the First and Fourteenth Amendments, 42 U.S.C. §§ 1983, 1985(3) and 1986, and Article 1, §§ 8, 9 and 11 of the Constitution of the State of New York. Plaintiff alleges that, in not recommending him for tenure at Brooklyn College, defendants deprived him of his rights, privileges and immunities. Defendants have moved to dismiss plaintiff's allegations brought under 28 U.S.C. § 1343 and 42 U.S.C. §§ 1985(3), 1986, on the grounds that the amended and supplemental complaint fails to establish subject matter jurisdiction and fails to state a claim upon which relief can be granted. *fn1"

FACTS

 Plaintiff, an Assistant Professor of Political Science at Brooklyn College, was denied reappointment with tenure and promotion for the academic year 1978-1979. Defendants are members of the Brooklyn College administrative and faculty committees which evaluate tenure candidates, *fn2" and which, specifically, voted against the recommendation of his tenure and promotion. Defendant Kneller stated that the reasons for plaintiff's dismissal lay in the inadequacy of his scholarly research and publications. Plaintiff alleges, however, that the defendants denied him tenure and promotion pursuant to a conspiracy motivated by an anti-CIA animus which prompted defendants to seek means to punish plaintiff for cooperating with representatives of the CIA and to deter other academicians from similar action.

 Following a trip to Europe, plaintiff submitted himself to CIA debriefing. He alleges that he confided the fact of his debriefing in defendant Kahan, his brother-in-law, and a colleague in the Political Science Department. Kahan then allegedly notified the Appointments Committee and the Chairman of the Department. Plaintiff asserts that, as a result, the Appointments Committee met on November 22, and December 6, 12 and 14, 1976 to consider means of dealing with his association with the CIA. At the Department meeting on December 15, 1976, plaintiff read a statement generally describing the request made of him by the CIA. On December 20, 1976, the Department held a special meeting wherein they formed an ad hoc committee to recommend departmental policy regarding CIA contacts. The ad hoc committee allegedly considered various means of dealing with plaintiff's CIA association, including disciplinary proceedings and tenure denial.

 On January 12, 1977 the ad hoc committee presented its recommendations to the Department. Pursuant to these recommendations, the Department adopted the following statement of general policy:

 
It is the position of the members of the Political Science Department that the standards and ethics that underlie membership in the academic community preclude at the very least any agreement by a faculty member to engage in covert activities for a government intelligence-gathering agency . . . . Should the Department be convinced that a member has violated its policy, it will ask the President of the College to institute proceedings under Article XXI of the Professional Staff Contress contract, which permits the President to discipline a faculty member for "conduct unbecoming a member of the staff" through "removal, suspension with or without pay, or any lesser form of discipline . . . ."

 Plaintiff asserts that the Department applied its newly adopted policy to him and issued a statement holding that plaintiff's association with the CIA was "inconsistent with membership in the faculty and would warrant (his) removal from the college."

 Defendant Kneller, President of Brooklyn College, then referred the matter to the Provost. But, before the Provost Committee had completed its deliberations, Kneller publicly announced his decision to recommend against plaintiff's promotion and tenure. In that announcement Kneller criticized both the plaintiff and the Department for the handling of the CIA matter, stating that there were insufficient grounds to warrant instituting formal charges. Soon after, the faculty and administration committees voted against plaintiff's bids for promotion and tenure. Based on these votes, the President also refused to recommend that plaintiff be granted tenure.

 DISCUSSION

 Specifically, defendants argue that under the Supreme Court decision in Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338, (1971), plaintiff must plead and prove a racial or otherwise class-based invidiously discriminatory animus behind the alleged conspiracy. In this regard, defendants argue that plaintiff's complaint at best only alleges discrimination against a class consisting of those "members of the teaching profession who talked or associated with the CIA or who wish to talk to or associate with the CIA in the future." Such a class, defendants claim, is not clearly enough defined for purposes of Section 1985(3) coverage. Moreover, defendants argue that such a class is not normally protected by Section 1985(3); this statute, according to defendants, was only intended to protect classes "akin to race, and . . . those which historically have been subjected to discrimination, such as classes based on religion, national origin or sex." (Memorandum of Law in Support of Defendants' Motion to Dismiss at 13.)

 This Court feels that defendants' interpretation of the scope of coverage of Section 1985(3), as reflected in the above argument, is unduly restrictive and that the relevant case law does not justify the resultant conclusion that plaintiff has failed to state a claim under Section 1985(3).

 In reaching this conclusion, the Court notes at the outset that the Supreme Court's decision in Griffin v. Breckenridge, supra, arguably may have done more to create confusion than to resolve it. While Griffin quite clearly established that Section 1985(3) extends to purely private conspiracies, the Court's requirement, as noted above, of a racial or otherwise class-based invidiously discriminatory animus as part of a 1985(3) conspiracy claim has led to much confusion in the lower courts over (i) what constitutes a sufficient class for the purposes of Section 1985(3), and (ii) what rights the statute covers so as to render a conspiracy aimed at the deprivation of same a violation.

 As to the question of what constitutes a sufficient class for the purposes of 1985(3), many courts, as plaintiff points out, have accepted as sufficient for the purposes of Section 1985(3) class definitions which fall outside those which defendants argue are alone entitled to statutory protection, i. e., those "akin to race, and . . . those which historically have been subjected to discrimination, such as classes based on religion, national origin or sex." Thus, for example, courts have upheld as proper classes for 1985(3) claims those consisting of political demonstrators, Glasson v. City of Louisville, 518 F.2d 899 (6th Cir. 1975), Cert. denied, 423 U.S. 930, 96 S. Ct. 280, 46 L. Ed. 2d 258 (1975); Brown v. Villanova Univ., 378 F. Supp. 342 (E.D.Pa.1974); environmentalists, Westberry v. Gilman Paper Co., 507 F.2d 206 (5th Cir. 1975), Vacated as moot, 507 F.2d 215 (5th Cir. 1975); political campaign workers, Cameron v. Brock, 473 F.2d 608 (6th Cir. 1974), Cf. Puentes v. Sullivan, 425 F. Supp. 249 (W.D.Texas 1973); striking teachers, Bradley v. Clegg, 403 F. Supp. 830, 833 (E.D.Wis.1975); and even a single white middle class family, Azar v. ...


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