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September 4, 1991


The opinion of the court was delivered by: Conboy, District Judge:


This case raises serious constitutional questions that go to the heart of the current national debate on what has come to be denominated as "political correctness"*fn1 in speech and thought on the campuses of the nation's colleges and universities.

A professor who has had tenure for over sixteen years at one of America's most famous institutions of higher learning, singularly noted for its bracing environment of broad and untrammeled speech,*fn2 claims that his tenure is in jeopardy, his students drawn away, his classes disrupted, his reputation injured, and his speech chilled as a result of the actions of his college's administrators, who are said to be repelled by his views on affirmative action quotas and the relative intelligence of blacks and whites, and who are said to be, by their actions, seeking to suppress those views.

The college officials say that his views are odious, and rightly denounced, and that although he has committed no act of academic misconduct or discrimination against his students, and although there is no complaint by any of his students against him, they are permitted to structure the class schedule to provide alternative professors to "insulate" and "protect" his present and future students from his views.

Professor Michael Levin has brought this action pursuant to federal civil rights law, 42 U.S.C. § 1983, and the First and Fourteenth Amendments to the United States Constitution.

We conclude that Professor Levin has convincingly established his case, that the defendant college officials have sought to and did punish him in retaliation for and solely because of his expressed ideas, that in so doing they have violated his constitutional rights and the civil rights laws of the United States, and that federal injunctive relief is necessary to secure Professor Levin's rights on the campus of City College of the City University of New York. We will now elaborate upon these findings.

The constitutional questions presented by this case are a) whether the creation of what in this lawsuit have been denominated "shadow sections" by City College officials, to which Professor Levin's students, having been warned by the College Dean that his views are "controversial", may voluntarily switch, have operated or may operate to abridge Professor Levin's free speech rights under the First Amendment of the Constitution, and abridged his tenure rights under the Fourteenth Amendment of the Constitution, and b) whether the creation by the College President of an "ad hoc Committee" of faculty to investigate Professor Levin's writings but not apparently, any of his conduct, is a constitutionally impermissible attempt by the College to silence his views through an implicit threat to revoke his tenure, and constitutes a discrete injury to his tenure, in violation of the First and Fourteenth Amendments of the Constitution. These are largely legal questions, as the parties at trial did not dispute any material facts underlying them.

Finally, there is presented the factual question as to whether college officials have tacitly approved the disruption of Professor Levin's classes by failing to identify and discipline persons who have on numerous occasions disrupted and caused to be terminated philosophy classes being conducted by Professor Levin. The resolution of this question has a bearing on whether the disruptions, which are conceded, constitute a separate abridgement by the College of Professor Levin's free speech rights, and an injury to his liberty and property interests in his tenure.

Michael Levin, the plaintiff, holds a doctorate in philosophy and is a tenured member of the faculty of the City College of the City University of New York ("City College"), a public institution funded in part by the State of New York. The remaining defendants are Bernard W. Harleston, President of City College, and Paul Sherwin, Dean of City College. Various members of the faculty of City College who were asked to and did serve on the Ad Hoc Committee convened by President Harleston to inquire into certain writings of Professor Levin, and certain views he expressed outside of his classroom, which views have been characterized on the campus as racist, were initially named as defendants and then later dismissed.

Professor Levin claims that his right to freedom of expression secured by the First Amendment to the Constitution of the United States, and his property rights in the full enjoyment of his tenured status secured by the Fourteenth Amendment, have been violated by defendants' actions and failures to act, and will, in the absence of injunctive and declaratory relief from this Court, continue to be violated. Specifically, Professor Levin claims that the appointment of the Ad Hoc Committee to determine whether his published writings and public statements outside of his classes go beyond the bounds of academic freedom and constitute conduct unbecoming a member of the City College staff has i) chilled and continues to chill his right of freedom of expression; ii) threatened and continues to threaten his academic freedom, employment, tenure status and freedom to enjoy such status without peril of disciplinary action; and iii) injured and continues to injure his reputation, professional standing, professional and academic opportunities, and prospects of alternative employment in his field. Professor Levin also claims that the establishment by Dean Sherwin, with the knowledge and approval of President Harleston, of alternative classes ("shadow sections") to his introductory philosophy course, with an accompanying letter warning his students that Professor Levin had expressed controversial views, had the intended effect of injuring his free speech and tenure rights.

Finally, Professor Levin claims that the failure of the President and Dean to prevent or take effective steps to investigate repeated disruption of his classes by demonstrators has contributed to the aforementioned injuries to his tenure and rights under the Constitution.

The defendant City College's President and Dean deny violating or threatening to violate Professor Levin's constitutional rights and argue that, in any event, they are protected from personal liability in this action by the doctrine of "qualified immunity," predicated on their good faith belief in the legitimacy of their actions.

In a prior opinion, reported at 752 F. Supp. 620 (S.D.N.Y. 1991), we denied defendants' motion to dismiss, finding that Professor Levin's claim was justiciable in federal court. The case was tried without a jury on May 7, 8, and 9, 1991, and post-trial papers were filed on May 30, 1991. This opinion shall constitute the Court's findings of fact and conclusions of law in the matter.


Professor Levin's Writings

The writings of Professor Levin that have made him a subject of controversy are three in number.*fn3 They are a letter to the editor of the New York Times, published January 11, 1987; a book review that appeared in the January/February, 1988 issue of an Australian journal called Quadrant; and a January, 1990 letter published in the Proceedings of the American Philosophical Association.

The Sunday edition of the New York Times for January 11, 1987 carried a letter to the editor signed by Professor Levin, in which he responded to, and criticized, a Times editorial published on the previous December 28th. He asserted that the editorial had misunderstood the ethical formulations of the eminent Harvard philosopher John Rawls, and that the citation to Rawls was "obviously an effort to bolster a position reached on nonphilosophical grounds." PX 1.*fn4 The full text of the editorial is as follows:

Fear of Blacks, Fear of Crime

    It's very easy to spot a black person in this
  neighborhood, and whenever I see one, I know he's
  up to no good. They come in the neighborhood and
  rob everybody. It's a known fact. That's why
  everybody has a thing about them.
    That's how a construction worker named Jimmy,
  from Howard Beach, Queens, tried to explain why a
  gang of teen-agers armed with bats and clubs last
  week chased and beat three blacks whose only
  apparent offense was to walk through his
    The same crude presumption — that blackness
  indicates criminality — haunts the trial of
  Bernhard Goetz, who claims self-defense for
  shooting down four young blacks on a subway train.
  The presumption recently led a Louisiana sheriff to
  order deputies to stop and question all blacks on
  sight, and it produced furious debate in
  Washington, D.C. over whether local stores, fearing
  robbery, should refuse to admit black men. Signs on
  the doors of small shops on the upper East Side of
  Manhattan — "Men by appointment only" — also mask
  the ugly question: Shouldn't one assume that black
  men are up to no good?
    Many whites would answer yes, observing that
  blacks, especially young black men, commit more
  than their share of crime. National surveys
  estimate that blacks commit robbery at a rate 10
  times that of whites. Yet blacks cannot be
  faulted for denouncing the automatic assumption
  that the potential victim's viewpoint is the only
  one. What about the vast, innocent majority of
  blacks? Why shouldn't they be able to shop where
  they want, hail cabs and walk city streets, even
  in Howard Beach? Why must millions pay for the
  sins of a few?
    The issue engages a classic dilemma of
  utilitarianism versus individual rights: At what
  point, if ever, should needs of the community as
  a whole be allowed to harm an innocent minority?
  John Rawls, the philosopher, suggests one widely
  respected answer: No one ought to endorse a
  social order that he could not accept if he were
  in the shoes of the most disadvantaged.
    Who, then, is more disadvantaged, the innocent
  white subjected to crime and fear of crime, or
  the innocent black forced into humiliating
  inconvenience and heightened risk of violence
  from mistaken acts of self defense?
    The innocent potential victim of crime has more
  options for protection against burglary and
  robbery — guards, locks, dogs, alarms and buzzers,
  legitimate community organizing. Innocent victims
  of discrimination based on popular fear can do
  little but submit. There is no reason to choose:
  Discrimination, cumulatively, can be as poisonous
  as mugging or burglary. Both kinds of pain diminish
  the civility of modern life.
    There is no remedy, only an approach, the one
  suggested by John Rawls. It's not hard for blacks
  to put themselves in the shoes of fearful
  shopkeepers and citizens; they are, too often,
  fearful citizens themselves. Fearful whites need
  to put themselves in the shoes of innocent
  blacks. Doing so will not dissipate the reasons
  for fear, but it can steadily inspire the
  understanding and reason that

  keep fear in its place.*fn5

The full text of Professor Levin's letter in response, under a headline selected by The Times, is as follows:

                    Howard Beach Turns a Beam
                       on Racial Tensions
    The reference to John Rawls in "Fear of Blacks,
  Fear of Crime" (editorial, Dec. 28) would
  illustrate the risks of misunderstanding
  philosophy, were it not so obviously an effort to
  bolster a position reached on nonphilosophical
    You say that the Rawls principle that "No one
  ought to endorse a social order that he could not
  accept if he were in the shoes of the most
  disadvantaged" implies that people ought not to
  take even rational steps to avoid being
  victimized by black criminals.
    In the first place, as the wording suggests,
  Rawls proposes this principle as a test of the
  basic institutions of a society, if they were
  being chosen from a position of total ignorance
  about one's actual place in that society. It does
  not constrain particular decisions made within a
  given society as a going concern, when specific
  information is available about the actual risks
  one faces.
    It is important to bear in mind that the Rawls
  principle is in any case not fundamental and
  rests on the precept that, whatever the
  probability that the worst will actually occur,
  the worst possible outcome should be made as
  tolerable as possible.
    If social policy is going to be made from this
  pessimistic perspective, then even the occupants
  of society's worst off position will endorse
  rules permitting steps to avoid assault on one's
  person. However badly off you are, you are worse
  off mugged (as homeless people who fear city
  shelters demonstrate).
    If information about appearance can be used to
  reduce the probability of being attacked, one may
  use it. Even other blacks are presumably more
  wary of 17 year old black males wearing running
  shoes and hooded sweatshirts than they are of
  other members of the population.
    You indirectly try to make these points by
  proposing the quite incredible idea that it is
  just as bad to be discriminated against as it is
  to be robbed or murdered — or, at any rate, that a
  society in which prejudice is rampant is as bad as
  one in which violent crime is rampant.
    Individual tastes in disaster may differ, but
  surely the innocent black turned away from a
  Madison Avenue boutique would not wish to change
  places with a boutique owner who has just been
  assaulted. It is unfortunate that innocent blacks
  must be inconvenienced because of the behavior of
  guilty blacks, but if we are to play the
  put-yourself-in-his-shoes game, the innocent
  black who puts himself in the shoes of the
  vulnerable boutique owner should just as surely
  conclude that he would not let himself in under
  similar circumstances.
    It is hard to fathom your sudden concern with
  the penalized innocent given your steadfast
  endorsement of affirmative action quotas that
  invariably penalize whites innocent of
  discriminating. Is discrimination against
  innocent whites a tolerable price for insuring
  jobs for blacks while discriminatory
  inconvenience for innocent blacks is too high a
  price for reducing the risk of murder for white
  store owners?

PX 1.

One year later, in the January/February, 1988 issue of Quadrant, an Australian journal published in Sidney, there appeared a book review by Professor Levin of two then current and controversial best-sellers in the United States dealing with education, Cultural Literacy, by E.D. Hirsch and The Closing of the American Mind, by Allan Bloom. The article, entitled "The Trouble With American Education", is in the record as PX 4.

This article, approximately 3500 words in length, is in large measure given over to arguments about cultural transmission of common and historical experience, sweeping claims about intellectual history, and the place of value judgments in a college education. The text of that portion of Professor Levin's article that is germane to the case at hand is as follows:

    [A] cause of the malaise of American education
  is race, a topic approached but not quite reached
  by Hirsch and Bloom. Since 1954, staggering
  energies have been expended to bring American
  Negroes into the educational mainstream. Yet they
  continue to exhibit disproportionately high rates
  of illiteracy, dropping out, absence from the
  more prestigious disciplines, and other forms of
  academic failure. The conventional explanation of
  this failure is bias in the standards by which
  students are judged; adjust the standards to
  eliminate race bias, and all will be well. And
  adjustments have been made to eliminate any
  measure on which blacks underperform, it always
  being assumed that blacks are on average as
  intelligent as whites and as capable of passing
  any fair test in proportionate numbers. But there
  is now quite solid evidence that this assumption
  is not correct; the average black is
  significantly less intelligent than the average
  white. Therefore, the only adjustments in
  educational measures that will allow blacks their
  due number of successes amount to making
  course-work and tests easier and easier, and this
  is what has been going on for over thirty years.
  Conversely, if standards are going to be raised,
  cultural literacy reasserted and college
  education given its old depth and focus, the
  American polity will have to reconcile itself to
  an embarrassing failure rate for blacks.
    The uncomfortable fact is that knowledge of
  factual matters is highly correlated with IQ for
  reasons that Hirsch's analysis makes plain.
  Intelligent people are able to incorporate what
  they hear into larger intellectual structures,
  and thereby retain it more effectively. Some
  years ago (I do not know if this is still true)
  IQ tests asked the testee if he knew what the
  Apocrypha is. This may seem culturally biased,
  but the average person in American or Australian
  society will almost certainly have heard at least
  one reference to the Apocrypha in his lifetime,
  or at least have heard the adjective
  "apocryphal". The intelligent will remember the
  explanation of the Apocrypha, or pursue the
  etymology of "apocryphal", or in some other way
  hook this isolated item into their overall web of
  beliefs. The unintelligent will not. Teach
  content-full texts and readers to blacks, and the
  result, I fear will disappoint Hirsch.

In January, 1990 Professor Levin published the following letter in the American Philosophical Association Proceedings:

    The June issue of the Proceedings (Volume 62,
  Number 5) gives survey data concerning the
  numbers of blacks and other minorities in
  philosophy. Unsurprisingly, the proportion of
  blacks in the discipline is considerably below
  their proportion of the population.
    Unfortunately, such findings in the current
  climate of opinion generally lead to calls for
  "affirmative action," i.e. preference for blacks,
  accompanied by mea culpas on the part of whites
  participating in the activity from which blacks
  have been found to be excluded. It should
  therefore be good news that whites are not
  responsible for this under-representation.
    It has been amply confirmed over the last
  several decades that, on average, blacks are
  significantly less intelligent than whites. The
  black mean IQ is slightly more than one standard
  deviation below the white mean. In more familiar
  terms, that amounts to a difference of more than
  15 points of IQ as measured by such standard
  tests as the Wechsler Adult Intelligence Scale.
  Philosophers seem to have fixated at a primitive
  verificationism about such tests, and regard such
  tests as measuring nothing beyond themselves. In
  fact, performance on IQ tests correlates quite
  well with performance on a large number of
  independently measurable variables. In a recent
  survey of the psychometric literature, the
  National Academy of Science concluded that "in
  the technically precise meaning of the term,
  [mental] ability tests have not been proved to be

  biased against blacks; that is, they predict
  criterion performance as well for blacks as for
    The significance of these findings for our
  profession (as for the rest of society) is that
  black representation in a field can be expected,
  absent any discrimination, to decrease as the
  intellectual demands of the field increase.
  Doctors as engineers are recruited from an IQ
  range of 114 of above; I do not know the
  corresponding figure for philosophy, but it is
  surely just as high, and for some specialties
  (e.g. logic) considerably higher. Only 3% of the
  black population (as opposed to 16% of the white
  population) has an IQ in this range. Making the
  most optimistic assumptions, given that blacks
  constitute 12% of the population, only 2% (not
  12%) of the profession will be black. That is
  close enough to current figures for all
  philosophers to regard themselves free of any
  discriminatory guilt.

The Classroom Disruptions

As indicated, the relevant facts in this case are in large measure not disputed by the parties.*fn6 Since the fall of 1984, City College policy has officially and in written regulations prohibited students from engaging in demonstrations that disrupt or obstruct teaching and research activities. Any activity disruptive of classes subjects the group and individual participants to disciplinary proceedings in accordance with Section 15.3 of the University Board of Trustees By-Laws.

On March 23, 1987, shortly after the appearance of his letter in The Times, Professor Levin wrote a letter, PX 48, to the City College Dean of Student Affairs, George D. McDonald, complaining of persons distributing pamphlets outside of one of his classes. A week later, on April 1, 1987, Professor Levin reported to Campus Security Chief Albert Dandridge that documents affixed to his door had been burned. Dandridge filed an "Incident Report", PX 63, and submitted a copy to Dean McDonald, among others, which stated that Professor Levin "had been the target of demonstrations by the Day Student Government." A week after that, on April 8, 1987, a group of between 10 and 15 persons conducted a loud demonstration outside of one of Professor Levin's classes, disrupting that and other classes and blocking entry into and exit from the classroom.

Dandridge was summoned to the scene by Professor Levin. Dandridge observed one of the demonstrators, whom he later identified as Stephen N. Pearl, a student in the College, push against Security personnel in an apparent effort to inflame the situation and to exhort the other demonstrators to assault the Security officers. Dandridge obtained Pearl's student I.D. card, as well as that of another student demonstrator, Vardon Marshall, and submitted copies of the cards with a report on the demonstration, PX 52, to Dean McDonald. Dandridge also filed an Incident Report, PX 65. The following day, on April 9, 1987, Professor Levin wrote a letter, PX 2, to President Harleston, with copies to Deans McDonald and Sherwin, concerning the same incident and contemporaneous acts of harassment against himself, including an anti-Semitic threat. No one replied to this letter. Dandridge submitted an April 8, 1987 Incident Report, PX 53, to Dean McDonald concerning the threat, which was affixed to the door of Professor Levin's office and stated: "We know where you live you Jewish bastard your time is going to come."

At about this time, Dean McDonald received a typewritten letter, PX 60, purportedly written by Pearl, which denounced Professor Levin and Dean McDonald among others in terms which can only be described as utterly vile, and which threatened Dean McDonald with death. Dean McDonald turned the matter over to the police. Though unsigned, the letter bore at the bottom the typed name Stephen Pearl, President of City College I.N.C.A.R. [International Committee Against Racism] Club. The identity of the author of the letter was never established.

Shortly thereafter, on April 13, 1987, Dean McDonald sent a letter, PX 54, to Pearl officially summoning Pearl to his office on April 21 to explain why he should not be subject to disciplinary measures for violating College regulations during the April 8 demonstration. A similar letter was sent to Marshall. Pearl and Marshall did not appear before Dean McDonald as required. Dean McDonald received a letter, PX 69, dated April 20, 1987, signed by "Members of INCAR and the City College Community." This letter made counter-charges against College officials and stated: "we will not even consider the charges being raised against Mr. Pearl and Mr. Marshall until the charges against Mr. Dandridge, yourself and the administration are resolved to our satisfaction."

At about this time, President Harleston and Dean McDonald met with Professor Levin. They told him that academic freedom protects student demonstrators, but that the time, place, and manner of demonstrations could be regulated by the College. No commitment was forthcoming from these officials that Professor Levin's classes would proceed unimpeded in the future.

Several months later, on September 2, 1987, Dr. Levin wrote a letter, PX 3, to Dean McDonald and President Harleston complaining that Pearl was distributing leaflets outside of his class in a manner that was in apparent violation of College regulations. Neither Dean McDonald nor President Harleston replied to this letter. No further action was taken by anyone with regard to this incident.

At the trial Professor Levin testified in graphic detail about the disruption of his philosophy class because of his controversial views. Tr. 38.*fn7 In April, 1987 between 20 and 50 students were outside the door of his classroom with banners, shouting and impeding Professor Levin's students from entering, and "trying to make noise so that the class couldn't continue". Tr. 38. The banners and the shouts denounced Professor Levin as a racist. Tr. 41. A melee with security went on for sometime in the corridor while Professor Levin attempted to resume his class. Tr. 41. Professor Levin met with Professor Harleston to complain about the demonstrators, but the President said that his hands were tied. According to Professor Levin's testimony, which the Court accepts as credible, the President said, "'What do you want me to do? There's academic freedom issues here. The students have academic freedom as well, and their academic freedom is protected."' Tr. 42.

There was a further disruption of Professor Levin's class in March, 1989. According to the Professor,

  The students burst in the door, about 20
  students, led by Stephen Pearl with a bullhorn.
  [They] began haranguing my class. I tried to talk
  to them. But that was not possible. They simply
  kept chanting and shouting, chanting and
  shouting. My students tried to argue with them.
  Most of the students were simply dumbfounded at
  this, in a state of shock.
  Finally, after about three or four minutes, I
  said to the class, well, it appears we just can't
  continue. Remember that this is your education
  and dismissed the class and went back to my
  THE COURT: What specifically did [the
  demonstrators] say?
  THE WITNESS: Levin is a racist. Levin must not
  teach here. Levin is a racist. Levin must not
  teach here.
  THE COURT: You indicated that some of your
  students responded? What did they say?
  THE WITNESS: What are you doing here? You can't
  do this.
  THE COURT: In substance, would you describe
  whether or not there were rising tempers? Was
  this an emotional discussion or was it an
  abstract discussion befitting a philosophy class?
  Give us a sense, if you would, of exactly what
  the environment was in which you found yourself?
  THE WITNESS: The word I would use is extremely
  intimidating. The students — I should say the
  invaders. My students' tempers did not rise only as
  I say because they seemed to be in a state of
  shock, intimidation out of the blue 20 people
  marching in and very loud, very angry shouting
  addressed to me, set faces, angry loud faces. Once
  or twice I would attempt to engage them. What is
  your complaint? And instead of responding, just to
  reiterate their chants louder, more aggressively
  stationing themselves in a wall in front of me,
  between me and the door.
  THE COURT: So, in other words, your ability to
  get out was blocked by these people?
  THE WITNESS: Yes. When I finally decided to
  dismiss the class they did part. But certainly it
  was a very intimidating atmosphere. It was
  clearly designed to inhibit me from teaching,
  frighten me. Menace me.
  Q. You mentioned that you wrote a letter to
  vice-president McDonald about this incident?

A. Yes.

Q. Did you receive any reply to that letter?

A. No.

  Q. Was there any other reaction so far as you are
  aware on the part of the administration to this

A. No.

Tr. 48-51.

  Professor Levin further testified that: In March,
  1990 a further incident occurred. I was teaching
  and in fact I had locked the door and there was a
  pounding at the door. So I opened it up — perhaps
  unwisely opened it up to see what the pounding was
  and about 35 or so students came in, surrounded the
  class, started shouting and chanting and making
  teaching impossible.
  I had had some inkling that something like this
  might have occurred [sic]. I believe it was
  because I had seen some posters announcing a
  demonstration at that hour. So I thought
  something might be up and I mentioned it to Mr.
  Dandridge, the head of security, and there was
  some security present. Mr. Dandridge was present.
  He entered the class very soon after the students
  did and observing it decided that the wisest
  course would simply be to break up the class.
  Prior to that, my students themselves, some of my
  students, argued with the demonstrators and asked
  them to get out. But that had no effect. That was
  the incident.

Tr. 33.

After this incident, the College assigned a security guard, as it had done earlier, to protect Professor Levin from physical harm. Tr. 76.

At the trial, President Harleston denied that he had told Professor Levin that academic freedom protected the student demonstrators. Tr. 38. He asserted, however, that he could not recall whether he had done anything "to follow-up the college's investigation of the April, 1987 disruption of Professor Levin's class", and that he could recall nothing about the March, 1990 disruption of Professor Levin's class. Tr. 138-39. When counsel directed his attention to a resolution of the faculty senate calling upon him "to prevent disruption of classes and to discipline those who attempt such disruption", PX 27, President Harleston was unable to say whether the College Administration had carried out its responsibilities to comply with this resolution. Tr. 140. Indeed, when the Court pointed out that the question of the adequacy of the Administration's response to the disruptions of Professor Levin's classes had been put to him in a previous hearing in the case held five months earlier, and asked "[i]n the period of time that has elapsed since then, have you had occasion to review [the record] and satisfy yourself as to whether or not there was an adequate response to these complaints of disruptions in the professor's classroom", President Harleston stated that he had not. Tr. 141.

Finally, at the conclusion of his testimony, the following colloquy ensued between the Court and President Harleston:

  THE COURT: Would you look at Exhibit W in the
  smaller of the two exhibit books.
  Exhibit W is the statement of the university on
  the freedom of expression and ...

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