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Deep rift exposed as UB Law’s dean resigns

Behind the scenes at one of Buffalo’s oldest and most important legal institutions, there is a growing rift, an internal family feud fueled by allegations of perjury against its leader, a near vote of no confidence and an internal review that paints a portrait of a deeply divided institution.

At the center of the storm is Makau W. Mutua, a Harvard Law graduate, an internationally known human rights activist, and the dean of the University at Buffalo Law School. Mutua suddenly gave up that position Monday in the wake of criticism over his leadership, and he will step down in December to return as a faculty member.

Mutua’s seven years as dean appear to have divided the law school, pitting a man known across the world for human rights activism against many of the school’s most distinguished faculty members.

“It’s very toxic. It’s very sad,” one faculty member said of the environment at the law school. “We have a community that feels alienated by the administration and distanced from the school.”

The dean’s critics, and they are numerous, include some of the school’s most highly regarded faculty members.

They claim Mutua’s management style divided the school at a time of great economic turmoil. Applications and enrollment at UB Law, like at most law schools across the country, are down dramatically, and the school is going through a downsizing of both faculty and students.

Critics say Mutua, who came from within the ranks of the faculty, arrived in the dean’s office with a “divide and rule” philosophy that placed a priority on loyalty and penalized critics while rewarding allies.

But many alumni and donors view his stewardship as a much-needed step forward.

In their eyes, Mutua shook up a moribund faculty, reached out to alums who felt alienated from the school and succeeded in raising $23 million in private donations. They say the law school’s endowment has nearly doubled since he became dean.

“I found it absolutely refreshing,” said Daniel C. Oliverio, a well-known Buffalo lawyer, alumnus and donor, of the dean’s efforts to reconnect with alumni. “I found his outreach and responsiveness to be extraordinary.”

Mutua would not be interviewed for this story. But in a prepared statement, he said the allegations of perjury and his disagreements with faculty had nothing to do with his decision to step down.

“I decided to leave because it was the right time,” he said. “A seven-year tenure is twice as long as the typical tenure for a law dean, and I’ve accomplished what I set out to do.”

And in a statement announcing Mutua’s resignation, UB President Satish K. Tripathi said the dean left the law school “well positioned to achieve even greater prominence in legal education and scholarship.”

“Within a university environment, it is expected that faculty, staff and administrators will have strong and sometimes differing opinions about academic issues,” UB said in a separate statement to The News. “Discussion, debate and collaboration are encouraged at a university and are an important part of academic life.”

A lack of confidence

In the halls of the law school, there is a far different view of the man many believe aspires to high political office in his native Kenya.

Several faculty members spoke to The Buffalo News on the condition they not be identified, but others, including six of the school’s most highly regarded faculty members, talked openly about their lack of confidence in Mutua. Some are retiring next year.

Simmering beneath the surface for years, their dissatisfaction became public when eight filed signed statements in support of a law professor who was fired by Mutua six years ago and subsequently sued the dean in Buffalo federal court.

The suit by Jeffrey Malkan accuses Mutua of lying under oath, not once but twice, about the firing. The faculty members’ statements support Malkan’s account of what happened and contradict Mutua’s side of the story.

“If there’s one thing we should be teaching our students, it’s that sense of honesty, trust and professionalism,” said law professor Martha T. McCluskey.

Mutua has denied in court papers the allegations of perjury, but both he and the university declined to comment on the suit while it’s pending before U.S. District Judge Richard J. Arcara and U.S. Magistrate Judge H. Kenneth Schroeder.

In the eyes of some faculty members, Malkan’s suit is a symptom of a larger problem – the dean’s mismanagement of the school. They claim Mutua lacks an educational vision and is more concerned with power and control than with the school’s future.

They also claim the dean singled them out because of their perceived disloyalty and that his actions led to a near vote of no confidence four years ago. The effort was quashed by then-President John B. Simpson.

“Things were already brewing,” said Alfred S. Konefsky, a University at Buffalo Distinguished Professor, of the growing dissent at the school. “The senior faculty felt it was important to go on the record.”

The vote never happened. But, a few years later, Mutua again found himself the target of a scathing critique, this one an internal evaluation done by a group of faculty members led by chemistry professor Frank V. Bright.

Bright said he could not comment on the review, but Provost Charles F. Zukoski, in a letter to law school faculty at the time, acknowledged the faculty’s dissatisfaction with the dean.

“These issues have strained relationships within the school and created tension around leadership and unit cohesion,” Zukoski said.

By some accounts, the tension escalated and, in recent months, led to a private meeting between Zukoski and six female faculty members concerned about Mutua’s treatment of them.

“He has a very authoritative style that is arbitrary and capricious, and usually works to his benefit,” said law professor Rebecca R. French.

French would not comment on the meeting, but others confirmed it centered on Mutua’s relationship with female faculty members and, more specifically, a series of actions he took against them.

More often than not, the actions they point to involve Isabel Marcus and Lynn Mather, two other law professors. They say Mutua removed Marcus as head of the school’s international programs while she was undergoing chemotherapy treatment for breast cancer.

“He tried to force me to resign,” said Marcus, who remains on the faculty. “I refused and he fired me.”

Faculty members say Mather, former head of the school’s highly regarded Baldy Center for Law & Social Policy, also was targeted by the dean. Colleagues say Mather, who has since been named a SUNY Distinguished Service Professor, was recruited from Dartmouth College to head the Baldy Center.

“I was totally shocked,” Mather said. “I was deeply invested in the center and had a lot of programs planned for the next year.”

A red flag

To hear faculty members talk, the growing unhappiness with Mutua is rooted, in part, in his decision to fire Malkan in 2008.

It was a sign of things to come, they say, and a red flag to anyone, but especially to untenured faculty members, who might think twice about their allegiance to the dean.

Even more important, perhaps, was what followed, namely Malkan’s wrongful-termination suit, accusing Mutua of lying under oath about a faculty vote to promote him.

“There’s not the slightest bit of evidence that Mutua did not commit perjury,” Malkan told The News. “He’s actually succeeded in carrying out a miscarriage of justice.”

At the heart of the suit is a 2006 meeting at which faculty members took up the question of Malkan’s promotion from associate clinical professor to full clinical professor. He also was director of the school’s Legal Research and Writing Program.

Faculty members who were there say the vote was close, but Malkan’s promotion was approved. They say Simpson, who was then president, confirmed it in a letter to Malkan.

Mutua, who was named interim dean a year later, removed Malkan from his research and writing post in 2008 and, a few months later, fired him from his clinical professor’s post as well.

Malkan responded by filing a complaint with the Public Employee Relations Board – PERB ruled against him – and later a civil lawsuit demanding $1.3 million in damages. Supporters say Malkan has been unable to find work since his firing.

Mutua denies the allegations of perjury and, in court papers, claims there never was a vote to promote Malkan.

“There was only one vote, which was to extend him for another year as director of the program,” Mutua said during a deposition last year.

“And you remember this clearly?” he was asked.

“I remember this very clearly,” Mutua answered.

Privately, faculty members say his recollections of the vote are, at best, off base and, at worst, dishonest.

Charles P. Ewing, former vice dean of the law school and a co-defendant in the suit, would not comment on the perjury allegations but, as part of the court case, filed a motion to remove himself from the suit.

In his motion, Ewing says he was often “openly and strongly critical” of Mutua and his management of the law school. He also claims he asked Mutua to resign in order to avoid the vote of no confidence four years ago.

“Mutua’s credibility is certain to be attacked at trial, and that attack will be built on the credible testimony and notes of many distinguished law professors,” Ewing said in a signed statement to the court.

Ewing went on to say that the perjury allegations have tainted him, as well, and that fairness requires he be removed from the suit. Malkan has since dismissed Ewing from the suit.

Ewing would not comment on his motion but, in a brief statement to The News, said his five years as vice dean, working alongside Mutua, proved frustrating.

“I did my best to serve as a buffer and mediator between the faculty and the dean,” he said. “As troubled as I and most of my colleagues are about some of the things that have happened at the law school in recent years, there’s not a single one of us who isn’t fully committed to our students and to retaining our well-deserved reputation among lawyers, judges and legal scholars.”

As part of his motion, Ewing included the declarations of eight other professors, most of whom were at the 2006 meeting. Each of them supports Malkan’s and Ewing’s account of what happened.

Seen as a savior

There was a time when Makau Mutua was viewed as a savior of sorts.

It was 2007, and Law School Dean R. Nils Olson had announced he was stepping down. When a national search for a new dean failed, the university looked inside and found Mutua, a respected faculty member and internationally known human rights scholar.

He became dean in early 2008 after a brief stint as interim dean and, by all accounts, quickly made his mark on the law school.

“Makau has re-energized that faculty,” said Thomas E. Black Jr., a Dallas lawyer, alumnus and chairman of the Dean’s Advisory Council. “I think he’s added a ton of energy to the school.”

To hear Black talk, Mutua shook up a school that had fallen in national law school rankings, an issue of great concern to alumni.

He credits the dean with bringing in more than 20 new faculty members and overseeing a difficult but necessary downsizing. The hope is that a smaller law school – this year’s incoming class of 145 is down from a high of about 250 a few years ago – will result in better students and, therefore, higher rankings.

“Change is a difficult thing, especially to tenured faculty who have been there a long time,” Black said.

Among Mutua’s supporters, there is a school of thought on why the senior faculty rose up against him. They view it as a generational conflict, an old guard versus new guard type of battle.

“Every organization has that,” said Oliverio, the Buffalo lawyer and UB Law School alum and donor. “Show me an organization, a business, that doesn’t have that.”

Even critics acknowledge that Mutua is popular among donors. He is often described as charming and charismatic, and supporters say he is personally responsible for the success of the law school’s $30 million capital campaign.

To date, he’s raised $23 million, and Oliverio says his success is rooted in a desire to reach out to alumni with deep pockets.

He said Mutua is the first UB Law School dean in his memory to come to the offices of Hodgson Russ, Oliverio’s law firm, and ask for the firm’s input on changes at the school. The firm has since committed $500,000 to the law school.

Mutua’s emphasis on fundraising is no accident. With a decline in both enrollment and state aid, it has become more and more necessary for UB to raise money privately, and Mutua has done just that.

“I think we’ve been fortunate to have Dean Mutua’s leadership and vision,” said Francis M. Letro, a well-known Buffalo lawyer, alumnus and longtime donor.

More than anything else, Letro credits Mutua with preparing the school for the next generation of lawyers.

The dean has invested in technology as a way to improve the school’s long-distance, global teaching and in the aging and tired physical plant.

“I think Mutua saw that coming,” Letro said of the decline in law school enrollments. “I also think he’s done a lot of good at the law school to position it for the challenges of a 21st-century legal education.”

A surprise to some

Mutua’s resignation surprised a lot of faculty members. They say Tripathi seemed insistent on keeping Mutua at the helm and, as recently as last week, expressed support for him.

But six days before his resignation, Tripathi’s boss, SUNY Chancellor Nancy L. Zimpher, received a letter from several female faculty members, detailing their complaints about Mutua and their effort to seek help from the administration.

The resignation also came two weeks after The News began asking questions about the rift at the law school.

UB’s statement, which was provided to The News before Mutua resigned, also made a point of noting the “enormous pressures” on law schools everywhere and suggested that UB is in a better position than most to address those pressures.

UB officials are quick to cite Mutua’s creation of new academic programs supporting the school’s global aspirations, and his work improving real-life learning opportunities at the law school.

“I am most proud of my work with my colleagues and with university leadership to lead our great law school through its renaissance,” Mutua said. “In spite of challenges in the legal profession, the UB Law School is on a path to overcome them and continue on its present path of academic excellence.”