A public university’s decisions concerning the skills, expertise, and academic perspectives of applicants control when making academic appointments

A State University of New York [SUNY] adjunct professor [Plaintiff]  attributing his failure to advance within his department to his colleagues’ unfavorable view of the methodology he employed in his scholarship, brought an action in federal district court. 

Plaintiff asserted three causes of action: 

(1) A claim for damages pursuant to 42 U.S.C. §1983 for violat[ing] Plaintiff’s right of freedom of speech while acting under color of state law;

(2) A claim pursuant to §1983 for injunctive relief in the form of a court order to “prevent ongoing discrimination against Keynesian economists” in violation of the First Amendment; and 

(3) An age discrimination claim under New York State’s Human Rights Law.

A federal district court granted SUNY's motion for summary judgment and Plaintiff appealed. The U.S. Court of Appeals, Second Circuit, noting that it "disagreed with much of the district court’s reasoning," nonetheless sustained the lower court's ultimate disposition of the case.

Citing Garcetti v. Ceballos, 547 U.S. 410, the Circuit Court opined that Plaintiff's First Amendment claims fail because "under Pickering v. Bd. of Educ., 391 U.S. 563 (1968), a public university’s interest in deciding for itself what skills, expertise, and academic perspectives it wishes to prioritize in its hiring and staffing decisions outweighs [Plaintiff's] asserted interest in competing for academic positions unencumbered by university decision-makers’ assessment of his academic speech."

Affirming the federal district court's judgment, the Circuit Court said "If the Supreme Court’s (and this Court’s) enthusiastic endorsement of the First Amendment principles supporting a university’s academic freedom is to be given any practical bite, decision-makers within a university must be permitted to consider the content of an aspiring faculty member’s academic speech, and to make judgments informed by their own scholarly views, when making academic appointments."

Click HERE to access the Second Circuits decision posted on the Internet.

 

A final determination and the exhaustion of administrative remedies are typically essential to obtaining judicial review of the administrative determination

In Rosado-Ciriello, et al, [Plaintiffs] v Yonkers City School District, et al, [District], the Appellate Division considered a proceeding pursuant to CPLR Article 78 to review a determination of the District, and to compel the District to consider "telework" as a viable work accommodation for the Plaintiffs' members in the collective bargaining unit.

Supreme Court had granted the District's cross-motion, in effect denying the Plaintiffs petition and dismissed the proceeding. Plaintiffs appealed the Supreme Court's ruling.

The Appellate Division noted "a proceeding under [Article 78] shall not be used to challenge [an administrative] determination ... which is not final," explaining that an administrative determination must be final, and thus justiciable, i.e., ripe "for judicial review."

Quoting Matter of Village of Kiryas Joel v County of Orange, 181 AD3d at 685 [internal quotation marks omitted], the Appellate Division explained "[ripeness] is a justiciability doctrine designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties". Further, said the court, an administrative determination becomes "final and binding" when two requirements are met: "completeness (finality) of the determination and exhaustion of administrative remedies."

Finding that the alleged determination was not final and binding "because it did not inflict concrete harm" and further steps, including the submission of applications with supporting documents, were available to the Plaintiffs who were seeking the "telework accommodations," the Appellate Division held that Supreme Court "properly granted the [District's] cross-motion," in effect, denying the Plaintiffs' petition, and dismissing the Article 78 proceeding.

The exhaustion of administrative remedies rule, however, "is not inflexible and need not be followed where an agency's action is challenged as either unconstitutional or wholly beyond its grant of power" [see Watergate II Apartments v Buffalo Sewer, 46 NY2d 52] or where it is alleged that the administrative agency or process followed by the administrative agency violates the individual's constitutional rights to due process [see Levine v Board of Education, 173 A.D.2d 619]."

Further, as the decision in Walton v New York State Department of Correctional Servs., 25 AD3d 999, modified, 8 NY3d at 191, notes, "an individual is not required to exhaust the available administrative remedy where such action would constitute an exercise in futility." 

In deciding the point at which petitioner's administrative remedies are exhausted, "courts must take a pragmatic approach and, when it is plain that 'resort to an administrative remedy would be futile' ... an Article 78 proceeding should be held ripe, and the statute of limitations will begin to run."

Click HERE to access the Appellate Division's decision posted on the Internet.

 

New York State Public Personnel Law e-books

The Discipline Book - For information and access to a free excerpt of the material presented in this e-book, Click HERE.

A Reasonable Disciplinary Penalty - For information and access to a free excerpt of the material presented in this e-book, Click HERE .

The Layoff, Preferred List and Reinstatement Manual - for information and access to a free excerpt of the material presented in this e-book, Click HERE .

Disability Leave for fire, police and other public sector personnel - for information and access to a free excerpt of the material presented in this e-book, Click HERE .

 

Seeking a court order in the nature of mandamus to compel a public officer or agency to perform a specified act

Among the several ancient writs which haves survived through the eons is the Writ of Mandamus.* Mandamus is sought in an effort to compel a governmental entity or officer to perform a ministerial duty.

In contrast, the Writ cannot be used to compel an act that involve[s] an exercise of judgment or discretion on the part of the public officer or entity. Citing Matter of Mensch v Planning Bd. of the Vil. of Warwick, 189 AD3d 1245, the Appellate Division explained that a discretionary act involves the exercise of reasoned judgment which could typically produce different acceptable results whereas "a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result".

In this action the Appellate Division held that the Petitioners seeking a court order in the nature of mandamus "failed to establish that there existed a clear legal right to the relief sought." Rather, opined the court, Petitioners "sought to compel conduct involving the application of the discretion and judgment of the [Employer]."

Accordingly, the Appellate Division concluded that the remedy of mandamus was not available to the Petitioners.

* Other surviving ancient common law writs include the Writ of Prohibition, issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction"; the Writ of Injunction - a judicial order preventing a public official from performing an act; the Writ of Certiorari, compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the Writ of “Quo Warranto” [by what authority].

GOVTECH TODAY Newsletter item

On August 28, 2023 GOVTECH TODAY posted the item listed below on the Internet. Click on the text in color to access the report.

"Bringing live translation to public meetings".