Federal case that roiled UB Law School now over - The Buffalo News

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Federal case that roiled UB Law School now over

An eight-year legal battle that helped expose deep strife within the University at Buffalo Law School is finally over.

The U.S. Court of Appeals for the Second Circuit affirmed a federal district court decision in favor of Makau W. Mutua, the law school's former dean.  The ruling marks the end of the legal process for a former professor, Jeffrey Malkan, who sued Mutua and the university claiming he was wrongfully terminated. The case is unlikely to move onto the U.S. Supreme Court.

"There's nothing I can do. This is final. I'm retired, I guess. Prematurely retired," said Malkan, who hasn't found another job in academia since losing his UB post. "I haven't been able to get a fair hearing anywhere."

Mutua resigned as dean in 2014 amid criticism of his management and remains on the UB Law School faculty. He described the court's decision as a "total, unequivocal vindication."

"I had no doubt that Jeff Malkan’s claims against me and UB were malicious, unfounded and frivolous. He lost in every single forum where he sued — PERB, state courts, U.S. District Court for the Western District of New York, and now finally in the U.S. Court of Appeals for the Second Circuit," Mutua said in an email to The News.

Magistrate backs former UB law school dean in suit over firing of professor

Malkan, 63, had taught legal research and writing since 2000 at UB. He claimed Mutua wrongfully terminated him in 2008 and then lied twice under oath about it.

The case laid bare a rift at the law school between several highly regarded senior faculty members and Mutua, a world renowned human rights activist. The turmoil occurred as the school was suffering through steep enrollment declines. Faculty produced a scathing evaluation of Mutua's leadership and nearly took a vote of no-confidence in him. In addition, nine senior law professors went on record in court papers supporting Malkan's account of a tenure and promotion vote that was the crux of the professor's lawsuit.

The professors filed a complaint against the former dean with the Attorney Grievance Committee, Eighth Judicial District in Buffalo, seeking public censure or disbarment of Mutua over alleged perjury in the Malkan case.

Mutua denied he had made any false statements and told the committee the complaint was filed by individuals who opposed his tenure as dean or were removed by Mutua from administrative posts at the law school.

"All of them are driven by a bilious personal vendetta against me," Mutua wrote in his 2015 reply to the grievance committee.

At the time of his resignation, Mutua and other UB administrators maintained that the allegations of perjury and disagreements with faculty did not influence his decision to step down after seven years as dean.

In an email this week, Mutua suggested that race played a factor in the allegations against him. Mutua was born in Kenya and is black.

He blamed a "small cabal of racist law faculty who had trouble accepting that a competent, reform-minded and independent black man was running the Law School" for taking up what he termed Malkan's "groundless cause."

Ultimately, judges at various levels decided that Mutua had done nothing wrong and chided Malkan and his former attorney, Frederic D. Ostrove, for continuing to rehash the alleged perjury. In 2015, U.S. Magistrate Judge H. Kenneth Schroeder recommended dismissing the wrongful termination suit and fined Ostrove $10,000 for his conduct in pursuing the perjury allegations. U.S. District Judge Michael A. Telesca of Rochester adopted Schroeder's recommendations a year later.

Circuit Judges Ralph K. Winter, John M. Walker Jr. and Rosemary S. Pooler in New York City heard Malkan's appeal in October and affirmed Telesca's decision, including sanctioning Malkan and Ostrove.

"The district court … reasonably found that the motion had no factual or legal basis, and was meant to harass Malkan's adversary," the panel wrote in its decision.

The panel also found that Mutua didn't violate Malkan's due process rights because his position at UB was a term appointment capped at three years, and State University of New York regulations do not create a "legal right" in any other appointment or renewal.

Malkan labeled the decision "inexplicable."

"I didn't have a capped contract," he said. "It was a renewable contract. The only question was whether it was a presumptively renewable contract."

In his email, Mutua said he was pleased the court sanctioned Malkan.

"It’s a good lesson for him and those who would try to use the courts for personal — and bigoted — vendettas," Mutua said.

James A. Gardner, a veteran faculty member, replaced Mutua as interim dean for more than a year until the hiring of Aviva Abramovsky, a former associate dean at Syracuse University of College of Law. Abramovsky took over as dean of the UB Law School this past summer.

Malkan said he spent $130,000 pressing his case in court. He also said the university blackballed him from finding employment at other schools by refusing to let potential employers know that he had left UB in good standing.

During the lengthy legal battle, Malkan frequently railed against Mutua and the university in emails to his former colleagues at the Law School. His references to mass shooting in three emails in 2015 prompted university officials to ban Malkan from campus – a move some professors considered outrageous and overreactive.

Former UB law professor barred from campus after emails ‘cross line’

Malkan, who lives on Long Island, said he posed no threat and has no reason to return to campus, other than to retrieve several hundred academic and personal books from O'Brian Hall.

"I wish I could get them back. I doubt they're still there," he said. "That's the only reason I'd want to go back to campus, but I'd probably send someone else to do it for me."

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