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December 18, 1979

JERE JONES, FRED KORN and DAVID MASSIE, Plaintiffs, against JOHN W. KNELLER, individually and as President of Brooklyn College, et al., Defendants.

The opinion of the court was delivered by: NEAHER


Plaintiffs are former instructors in the Philosophy Department of Brooklyn College. They have brought these civil rights actions pursuant to 42 U.S.C. §§ 1983 and 1985(3) and the First and Fourteenth Amendments, alleging that they were unlawfully dismissed because of their exercise of constitutionally protected rights. Defendants are officials and instructors of Brooklyn College ("the college"), the City University of New York ("CUNY"), of which the college is a part, and the Board of Higher Education of the City of New York ("BHE"). Plaintiffs seek compensatory and punitive damages, as well as declaratory and injunctive relief.

 The amended complaint in No. 75 C 1898 is materially identical to the subsequently filed complaint in No. 78 C 1780, except for the latter's claim against BHE and its officials under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). The actions have been consolidated for all purposes and are now before the court on defendants' motion to dismiss the complaints for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), F.R.Civ.P.

 At the outset, the court declines to treat the motion as one for summary judgment pursuant to Rule 56, F.R.Civ.P., on the ground that defendants' brief contains facts and arguments outside the complaints. Defendants' intention to move against the complaints under Rule 12(b) is apparent and the motion will be considered accordingly.

 In this regard, the issue here is not whether plaintiffs will ultimately prevail but whether they are entitled to offer evidence in support of their claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Lipsky v. Com. United Corp., 551 F.2d 887, 895 (2 Cir. 1976). Therefore, all well-pleaded material allegations will be accepted as true and the complaints will be construed in favor of the complaining parties, Cruz v. Beto, 405 U.S. 319, 323, 92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972); Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S. Ct. 1843, 23 L. Ed. 2d 404 (1969), recognizing that there cannot be a dismissal unless it appears beyond doubt that plaintiffs can prove no set of facts in support of their claims which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). See generally Scheuer v. Rhodes, supra, 416 U.S. at 237, 94 S. Ct. 1683. Applying these standards, we find dismissal appropriate.

 The complaints of approximately 40 pages each recite in great detail the series of events that allegedly led to the non-renewal of plaintiffs' contracts of employment and upon which they base their claims of constitutional deprivation. The facts as alleged are related here in greater detail than is our custom since plaintiffs' claims are not readily discernible and, in fact, fall victim of literary excesses which expose the controversy between the parties as nothing more than "mere bickering" among teachers, a claim not recognized to be of constitutional magnitude.

 Plaintiffs' allegations, read in their best light, reveal that the underlying disagreement between the parties originated in a difference of opinion over teaching method. Plaintiffs advocated the "journal" method of teaching, which involved periodic grading of students' journals. Defendants, on the other hand, supported the "lecture" method of instruction in which the teacher would have only infrequent examinations to grade and an occasional paper to consider. The journal method allegedly left the teachers less time to pursue scholarly endeavors than the lecture method, which allegedly encouraged the teachers' academic pursuits but sacrificed the interests of the students. Thus, the complaint alleges a fundamental disagreement over the best method of instruction in the college's philosophy department, which plaintiffs contend compelled them to voice criticism of various personalities.

 One of the advocates of the journal method was Elmer Sprague, who in 1972 was vice-chairman of the philosophy department. In late spring 1972, the chairman of the department, Martin Lean, made it known that he was going to spend a year at the University of Southern California. Defendants Salvator Cannavo, Paul Edwards, Gertrude Ezorsky, Edward Kent, Arnold Koslow and Paul Taylor, all members of the faculty, feared that if Sprague became chairman in Lean's absence the journal method would be adopted for those teaching in the department. They therefore petitioned defendant John W. Kneller, the president of the college, to conduct an election to fill the acting chairman position. Kneller stated that it was the responsibility of the president to designate an acting chairman but that he would consider the results of an informal election held by faculty members within the department. The informal election resulted in Sprague defeating Kent by a one vote margin, and he was subsequently named acting chairman by Kneller.

 During Sprague's tenure as acting chairman, he engaged in various acts which resulted in alienation of the faculty defendants. For example, as acting chairman he was a member of the college-wide personnel and budget committee, which voted on the final recommendations for promotion at the college. Kent failed to receive sufficient votes to be promoted to associate professor. Cannavo, Koslow and Ezorsky all failed to gain sufficient votes to be promoted to full professors. They all blamed Sprague for their failure to gain promotions. In addition, Sprague incurred the wrath of Edwards by insisting on enforcing a school regulation which denied him the opportunity of teaching at the New School, an adult education institution in New York City.

 In May 1973, elections for department chairman and membership on the appointments committee were conducted. The faculty defendants banded together and encouraged a majority of the faculty to back their candidate, Kent, for chairman. They were also successful in electing four members of their faction, Cannavo, Ezorsky, Koslow and Taylor, to the appointments committee. By motion that carried by a vote of seven to four, with Sprague abstaining, the committee elected defendant Robert Schwartz, who would not join the faculty until the fall of 1973, to replace Ezorsky on the committee for 1973-74, since she was taking a leave of absence that year. Sprague reported the election results to Kneller but questioned whether Schwartz could properly be elected to replace Ezorsky since he was not yet a member of the faculty. He also questioned whether Kent should be confirmed as chairman. Kneller subsequently assigned defendant Sherman Van Solkema, who was vice-president and provost of the college at the time, to investigate the circumstances existing in the department and to recommend a course of action.

 In May 1973, Van Solkema solicited and received views of Kent's capabilities from various members of the department, including plaintiffs, on the promise that there would be no reprisals for their candid judgments and that their reappointment and tenure applications would be decided by an outside board of review. Plaintiffs were among the faculty members who were of the opinion that the department should be placed in receivership before permitting Kent to become chairman.

 Van Solkema reported the results of his investigation to Kneller and on May 31, 1973, Kneller announced that (1) Kent would only be designated as "Interim Chairman" and would not be confirmed as chairman; (2) he was appointing a search committee for a permanent chairman; and (3) Schwartz could not replace Ezorsky on the appointments committee because he was not yet a member of the faculty. Thereafter the committee decided to postpone election of Ezorsky's replacement until the following fall.

 In September 1973, the committee voted for Ezorsky's replacement. Schwartz, who by that time was a member of the faculty, and Malcolm Brown, an associate professor and sympathizer of plaintiffs, each received seven votes. A compromise was struck whereby Brown would serve as member of the committee for the fall semester and Schwartz for the spring.

 At this same meeting the committee nominated two of its members to fill the five-member search committee instituted by Kneller. Cannavo and Edwards each received eight votes, while Brown and Abigail Rosenthal, also a plaintiffs' sympathizer, each received six votes. Sprague asked Van Solkema to urge defendant Ethyle R. Wolfe, dean of the school of humanities of which philosophy is a department, to appoint Brown and Rosenthal so that both teaching factions of the department would be represented in the search committee. Van Solkema refused.

 On October 3, 1973, Brown and plaintiff Jere Jones, who were under consideration for reappointment, were asked to submit written materials to the appointments committee. Plaintiff David Massie, who was under consideration for tenure, was not told to submit written materials until the following day. Rosenthal, who had already submitted written material, was specifically told by ...

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