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June 17, 1981

Professor Juan E. HERNANDEZ-CRUZ, Plaintiff,
FORDHAM UNIVERSITY, etc., et al., Defendants

The opinion of the court was delivered by: LUMBARD

Following Fordham University's denial of his application for tenure in May 1978, Juan E. Hernandez-Cruz brought this action seeking equitable relief and damages against Fordham and four of its administrative officers alleging unlawful discrimination based upon his Puerto Rican heritage in violation of Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. Ā§ 2000e et seq. The plaintiff specifically alleges illegality in Fordham's acts of (1) denying him tenure because he had not completed his Ph.D. as required by university statutes, (2) requiring that he apply for tenure when he did, and (3) denying him a faculty fellowship which he asserts would have allowed him to complete his Ph.D. in time for tenure review. The court finds that Fordham applied its policies in a non-discriminatory fashion and denied Hernandez-Cruz tenure because he lacked the necessary academic degree. Accordingly, the court grants judgment for the defendants.

In order fairly to appraise the reader of the evidence presented in the seven-day bench trial, a somewhat detailed factual summary is required. Juan E. Hernandez-Cruz is a 43 year-old Hispanic individual of Puerto Rican origin. He received his Bachelor of Arts degree from the University of Puerto Rico in 1962 with a major in the social sciences. He then spent a year in New York, improving his English and auditing courses at New York University. He received his Master of Education degree from the University of Puerto Rico in 1970 after spending several years employed in publishing, public relations, and translation. He then taught full-time at the University of Puerto Rico for two academic years.

 Late in the summer of 1972, Hernandez-Cruz returned to the United States to undertake a Ph.D. program in Sociology at New York University as a full-time student. To finance the degree, he had received a three-year fellowship from the University of Puerto Rico, which was given in anticipation of his eventually returning to teach at the University of Puerto Rico. The fellowship provided eight thousand dollars a year in addition to tuition. On August 11, 1972, he applied for an adjunct (part-time) teaching position at Fordham's College at Lincoln Center. With the endorsement of J. A. Gonzales-Gonzales, the Chairperson of the Puerto Rican Studies Department and the Department's only full-time faculty member, Hernandez-Cruz received the adjunct position, teaching one course in the fall semester and two in the spring.

 Fordham University is a New York educational corporation that offers graduate and undergraduate education in the liberal arts and selected professional fields. It comprises several distinct schools of instruction: the College at Lincoln Center in Manhattan (where the events in dispute took place), Fordham College at Rose Hill in the Bronx, the Graduate School of Arts and Sciences, the Graduate School of Religion and Religious Studies, and the Schools of Law, Business Administration, Education, and Social Service.

 The individual defendants are, and were at all relevant times, administrative officers of Fordham. Reverend James C. Finlay is President of Fordham. Dr. Joseph F. X. McCarthy has been Vice President for Academic affairs since July of 1976. Reverend George McMahon is the Vice President for Administration. Dr. George W. Shea is the Dean of the College at Lincoln Center.

 The College at Lincoln Center has consistently been organized into two types of subdivisions which have carried different names over time although their organizational functions have remained the same. First, there are "divisions" or "departments," which organize the faculty for purposes of tenure and hiring determinations. Second, there are "programs" or "institutes," which are organizations of specific curricula. The faculty who teach in a program or institute must be members of one of the divisions or departments, and the hiring and tenure decisions affecting them are made by that division or department. The courses taught and the requirements for a major within a program or institute, however, are established by the program or institute.

 Since the early 1970s, the undergraduate curriculum at Fordham's College at Lincoln Center has comprised four major divisions: Arts, Humanities, Science and Mathematics, and Social Sciences. Before the transition to four divisions, the faculty had been organized into eight or nine departments which encompassed more narrowly defined disciplines. Fordham first established courses in Puerto Rican studies at the College at Lincoln Center in 1969 and 1970 in the form of a Puerto Rican Studies Program. In the 1971-1972 academic year, the Program became a department and therefore a faculty subdivision in addition to a curricular one, and it attained the corresponding control over hiring and tenuring the faculty for the Puerto Rican Studies courses. When the other departments were consolidated into the four major divisions, a dispute arose over the Puerto Rican Studies Department, as well as the Black Studies Department. First, although no witness in this case disputed that Puerto Rican Studies is a legitimate field of scholarly inquiry, it is an interdisciplinary subject and not a separate academic discipline such as philosophy, history, or economics. Accordingly, it appeared inconsistent to retain distinct faculty subdivisions for the ethnic studies departments while the other divisions incorporated broad fields of inquiry and multiple academic disciplines. Second, and more important, both Black and Puerto Rican Studies were too small to operate effectively as divisions. The University Statutes are drafted on the assumption that there will be at least five full-time faculty members in each department, while Puerto Rican Studies never had more than two; specifically, since Puerto Rican Studies had no tenured faculty members, committees to make tenure recommendations had to be appointed entirely from other departments. Thus, it seemed logical to transform the Black and Puerto Rican Studies Departments into institutes; the substantial support among students and faculty for retaining the independence of those departments, however, made that transformation a difficult one for the administration to achieve. Accordingly, until the 1975-1976 academic year, when Hernandez-Cruz had already been teaching full-time for a year at Fordham, Black and Puerto Rican Studies remained as departments and indeed were called divisions on occasion while the remainder of the old departments at the College at Lincoln Center had been consolidated into four divisions.

 On his initial application for the adjunct position at Fordham, Hernandez-Cruz anticipated that he would complete his Ph.D. in 1974. In that estimation, however, he assumed that 38 credits from the University of Puerto Rico would be transferable toward his doctorate at N.Y.U. However, because his graduate studies in Puerto Rico had been in education instead of sociology, he learned in late 1973 that he would receive only 24 credits.

 In the 1973-1974 academic year, Hernandez-Cruz continued his full-time studies at N.Y.U. and, with Chairperson Gonzales-Gonzales's endorsement, reapplied for an adjunct position at Fordham. He was reappointed and taught one course each semester that year at Fordham. In the spring semester of 1974, he was also appointed as a part-time instructor at N.Y.U. to teach one course there.

 In the 1974-1975 academic year, Hernandez-Cruz shifted his emphasis from his role as student to his role as teacher: he became only a part-time student in his Ph.D. program at N.Y.U. and applied for a full-time position at Fordham. On April 25, 1974, Fordham's Associate Vice President, Father William C. Bier, appointed Hernandez-Cruz as a full-time Instructor in the Department of Puerto Rican Studies; and Hernandez-Cruz accordingly had to resign his fellowship from the University of Puerto Rico. As his first full-time appointment with Fordham, 1974-1975 was the first year of teaching that would apply toward his evaluation for tenure there.

 University faculty view tenure as the prime guarantee of their academic freedom. Having received tenure, a faculty member can only be dismissed for cause and thus is effectively assured of continued employment until retirement. Fordham, like most American universities, has adopted the tenure standards proposed by the American Association of University Professors. The A.A.U.P. proposed, and Fordham adopted, a seven-year probationary period for evaluating candidates for tenure. Because Fordham issues faculty contracts at least a year before the contract will expire (again pursuant to A.A.U.P. principles), the seven-year probationary period leaves almost six years for the other faculty members to observe and evaluate the candidate's worth.

 When Fordham adopted the A.A.U.P. tenure system in 1967, it abandoned its previous system of employment security based on professorial rank rather than length of service. To avoid any unfairness to the existing faculty, Fordham granted automatic tenure to all faculty who had been employed full-time for seven years as of 1967. Thus, faculty who were so granted tenure in 1967 were not required to hold doctoral degrees as has consistently been the University's policy since then.

 For instructors who have had previous full-time experience at another university, both Fordham and the A.A.U.P. allow credit for one, two, or three years to be deducted from the seven-year probation, depending upon the number of years spent in full-time teaching elsewhere. When Hernandez-Cruz received his first full-time contract at Fordham on April 25, 1974, he was given credit for his two years' teaching experience at the University of Puerto Rico. Accordingly, his probationary period was scheduled to end August 31, 1979, which meant he would be reviewed for tenure in the spring of 1978. Chairperson Gonzales-Gonzales stressed those two years' experience in his recommendation of Hernandez-Cruz for the Instructor position, and he urged Dean Shea to consider them in determining Hernandez-Cruz's salary. Although the University Statutes at Fordham have since been amended to allow negotiation, at the time of hiring, of the number of years' credit to be granted, that amendment is irrelevant in this dispute because it is not retroactive and thus does not affect faculty members hired before its effective date in October of 1979. Moreover, at no time did Hernandez-Cruz ever object to receiving the two years' credit.

 In addition to continuing his Ph.D. studies at N.Y.U. and teaching full-time at Fordham, Hernandez-Cruz chose to assume the additional responsibility of teaching part-time at N.Y.U. once again in the spring of 1975. The Fordham University Statutes require the approval of the Vice President for Academic Affairs for a full-time faculty member to teach at another university: the Statutes note that faculty are expected to dedicate their major energies to their obligations at Fordham, and approval is required to assure that outside teaching does not impair the fulfillment of those obligations. Father Bier granted Hernandez-Cruz that approval in January of 1975. Hernandez-Cruz, who received $ 2,000 in compensation for teaching the additional course, testified that his principal motivation was to avoid seeing the class cancelled at N.Y.U. for lack of an instructor. Also, although it was not required of him, Hernandez-Cruz taught a course at Fordham during the summer of 1975.

 During that year of transition between full-time student and full-time instructor, Hernandez-Cruz encountered the first of his several difficulties in obtaining adequate grades in his degree program at N.Y.U. At his request, Hernandez-Cruz received a year-long extension on January 6, 1974 for completion of the requirements for his Statistics II course. On May 28, 1975, he was told that he had only received a C in the course, and a grade of B or better was necessary for graduate credit. Therefore, he was required to take a special examination in the subject. After unsuccessfully protesting the grade, he took the special examination and satisfied the Statistics requirement in July of 1975.

 Hernandez-Cruz could never have doubted the importance of his Ph.D. in his eventual review for tenure. The University Statutes provide that faculty without a terminal degree can hold only the post of Instructor, and the parties have stipulated that the Ph.D. is the proper terminal degree in Hernandez-Cruz's field of sociology. Thus, the Ph.D. was essential for his promotion to the post of Assistant Professor. The University Statutes also provide that "tenure is granted only to faculty of the rank of Professor, Associate Professor, or Assistant Professor."

 It therefore could not have surprised Hernandez-Cruz when his reappointment as an Instructor at Fordham for the 1975-1976 academic year included strong encouragement for him to advance his studies. The letter of reappointment from Father Bier on February 26, 1975 stated: "We are unable to offer you more than a one-year contract renewal because you have not obtained your doctoral degree. Subsequent reappointments will depend upon satisfactory progress toward this degree."

Ā Chairperson Gonzales-Gonzales was denied tenure in the spring of 1975, and his final contract was scheduled to expire in January of 1976. This left Hernandez-Cruz as the only full-time faculty member in the Puerto Rican Studies Department, and accordingly there was some discussion that he might succeed Gonzales-Gonzales as chairperson. In June of 1975, however, Hernandez-Cruz wrote to Gonzales-Gonzales to stress that he had no interest in the position and that it had never been offered to him. Hernandez-Cruz sent copies of that letter to Dean Shea and El Pueblo, the Puerto Rican student organization at the College at Lincoln Center. On July 1, 1975, Dean Shea requested that Hernandez-Cruz serve on a faculty committee that would conduct a search for a replacement chairperson for Gonzales-Gonzales. Hernandez-Cruz replied the next day that he was "glad to join the faculty group." Although there is some dispute regarding the time commitment involved in serving on that committee, the chairman of the committee, Professor Peter Schneider, stated that the committee's task was completed in approximately 25 to ...

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