[letter sent to Legal Writing Institute listserv, June 20, 2013, 8:20 AM] Colleagues, Im sending this letter

because many of you will soon be congregating at the biennial ALWD conference. My experience may resonate with some who have had the assignment of directing a legal writing program. Sincerely,

Jeffrey

Dear LWI/ALWD Colleagues, This letter is my attempt to explain the how and why of the past several years at SUNY Buffalo. The story goes back to January 1, 2004, when a new administration was hired to run the university, both scientists from the UC System (Santa Cruz and Riverside), President John B. Simpson and Provost Satish K. Tripathi. Neither of those UC campuses have law schools. Provost Tripathi selected a law professor, Lucinda M. Finley, to be Vice-Provost for Faculty Affairs. She had been legal writing director for a brief period from 1993-1996, and has always felt that LRW is hers to do with as she pleases, although she never discussed it with me or made any suggestions about how to improve it. Meanwhile the prior law school administration, under Dean R. Nils Olsen, Jr., had an ambivalent attitude about LRW and didnt provide the resources to properly fund a program of our scope. Because of this constraint, we wound up with the unacceptable situation of six local female attorneys on one-year contracts and an out-of-town male director (me), who made double their salary. In fall 2006, when the faculty finally began to yield to my complaints that this situation was unsustainable, the next issue was whether the incumbent teachers should be grandfathered (sic) into the upgraded positions or whether they should be terminated and replacements hired, with the incumbent instructors being allowed to compete for their jobs. My position was, and is, that these would be exactly the same jobs, with the same teaching assignments in the same course, just with more defensible terms and conditions. The jobs still would not be 405(c)-protected, although I hoped that would be the next step. I also argued that

trying to rate inside candidates (who already had performance records in the school) against outside candidates (who did not), would be a matter of rating apples vs. oranges, so to speak. An ad hoc committee, appointed by then-Dean Olsen, reviewed the LRW staffing issue and took the view that, regardless of whether these were new jobs or the same old jobs, the improved terms and conditions might attract a different candidate pool. Therefore, the old LRW teachers would have to yield to better qualified outsiders, if they could be recruited. Before this plan could be implemented, the old administration was succeeded by the Makau W. Mutua/James A. Gardner administration. I made the argument to then-Interim Dean Mutua and Vice-Dean Gardner that the incumbent instructors shouldnt be fired just at the point when their terms and conditions of employment improved. Instead, because of their prior years of service, they should be given an opportunity to upgrade their performance to whatever level the administration expected for the more generous compensation they would receive. I also pointed out that this was a matter of gender equity, since all six were women. As part of the planning process for this change (which I would call a terrorization process), thenInterim Dean Mutua ordered me to submit a self-evaluation of my job performance and the incumbent LRW instructors to submit critiques of the director of the program (i.e., me), which he refused to disclose or discuss with me or the union. He also collected critiques from ViceProvost Finley and Vice-Dean Gardner, which he had no legitimate reason for concealing from me except their incivility and dishonesty, if thats a reason and that I didnt even know about until last year. They agreed with each other that their second and third-year appellate advocacy students werent good enough for the kind of high-level, intellectually sophisticated teaching they do. The blame for this, they wrote, belonged to one person alone me. In this Kafkaesque nightmare, I had no idea what was being said about me, or by whom, much less given an opportunity to respond. After he had these critiques in his secret personnel file, Mutua dismissed me as director of the legal writing program, in the middle of spring break, and Gardner instructed my LRW colleagues to speak only to him and to cease communicating with me in any form. This led, at the unions prompting, to the intervention of the Vice-President for Human Resources, Scott Nostaja, who objected to the unfairness and impropriety of this inquisition, but he only succeeded in angering Mutua, who considers himself to be a human rights advocate of international renown. Shortly afterwards Makau W. Mutua was installed in office as permanent dean, over the facultys objections, after the provost rejected all the facultys nominees for the position. Vice-President Nostaja himself resigned within days of former Provost/now-President Satish K. Tripathis elevation to the presidency in April 2011.

The critiques that had been obtained from my colleagues who were well aware that their own careers were on the line determined who would get to keep their jobs, as I finally learned last year after forcing Dean Mutua to disclose them in the Court of Claims litigation. The process, such as it was, began with the issuance of one-year notices of non-renewal to all six women in the defunct program, with an invitation to reapply for their jobs in the new program. Those two whose critiques had been insufficiently critical of me were rejected. A third LRW instructor, who had complained too often about the inequities in the program and was considered a troublemaker, was also non-renewed. The bottom line was that three women were subtracted and three men added. For good measure, in some kind of parody of fairness, Dean Mutua also issued a notice of nonrenewal to me, even though, two years earlier, I had been reappointed to a full clinical professorship with a 405(c)-protected contract. His rationale was that Interpretation 405-6 states that the definition of good cause includes substantial modification or termination of an entire clinical program, and that the name change of the LRW program from Legal Writing to Legal Skills and of the LRW course from R&W to LAWR met that requirement, regardless of whether the change eliminated the underlying teaching positions. He simply ignored the clause in my contract that provided that a change in the structure or staffing of the law schools LRW program would not represent good cause for my non-renewal because my teaching assignment wasnt limited to first-year legal writing and I was approved, if I chose not to teach that course, to teach any other writing or doctrinal courses for which I was qualified. In addition to these name changes, he maintained that he was starting with a clean slate because he had removed and terminated the programs director, even though the same section of the same legal writing course that I had taught in fall 2008 (L-515, sec. L4) was still being taught in fall 2009, that is, after my termination, by a newly-hired instructor. In other words, his reasoning was that he had fired me because it was a new program and that it was a new program because he had fired me. Whatever Interpretation 405-6 was intended to mean, I doubt the ABA intended for it to be the exception that swallows the rule. Throughout the 2008/09 academic year, he refused to allow the faculty to vote on my nonrenewal, as required by the Faculty Bylaws. His excuse was that I had never been a clinical professor, as far as [he] was concerned, but only an out-of-category LRW instructor, despite the title/rank conferred on me by President John B. Simpson. Professor Charles P. Ewing, who was chair of the Grievance Committee at the time (and subsequently, as of June 1, 2009, ViceDean for Legal Skills), blocked my attempt to appeal the denial of my right to due process to the faculty.

What was Dean Mutuas motivation for this repression of the legal writing faculty? I believe he thought that the best way to placate Vice-Provost Finley and hold on to the deanship in the face of the facultys opposition was to discredit the preceding administration through a campaign of bullying and grandstanding. The supposedly new Legal Skills program wasnt a new program at all, but rather the same first-year LRW course (office memos in the fall, appellate briefs in the spring) plus a list of preexisting skills courses that the law school had compiled to show its compliance with ABA Standard 302(a). The only thing added was the third semester of LRW that I had proposed at a faculty retreat in June 2007. This fictitious program allowed Dean Mutua to feature himself as a trailblazer in the field of legal skills while terrorizing the legal writing faculty. In addition, he and Vice-Provost Finley, who are quite vain about their own legal skills, apparently thought that I would be utterly baffled about how to proceed. This is the sum and substance of the remarkable transformation of the legal writing program in Buffalo. Although the merits of my case will not be decided by anyone on this listserv, I cannot withdraw my objection to the indifference and insensitivity shown by those who have benefited from the misfortunes suffered by others (see postscript), and cant imagine why they persist with their self-promotions and attempts to undermine me while this litigation is going on. They fail to realize that they have much less job security than I did (I had an appointment to the voting faculty with a 405(c)-protected contract they dont), and that any gains I make in my lawsuits against the university are going to help secure their futures. As for the article in the Spectrum that I shared with the listserv, I held back for as long as I reasonably could before disclosing this crucial aspect of the story, but anyone who has recently dealt with the state judicial system in New York knows that multi-year delays, such as the one I fell into, are not uncommon. I told the Spectrums reporter that Dean Mutua, on March 31-April 1, 2010, had testified before a state administrative tribunal, the Public Employment Relations Board (PERB), that my contract wasnt valid because the Promotion and Tenure (P&T) Committee, on April 28, 2006, had adjourned without voting on my faculty appointment. On three separate occasions, I provided credible evidence to President Tripathi that Dean Mutua had sworn falsely to PERB in an attempt to justify his malicious misconduct and abuse of power. This was premeditated testimony, prepared on four-months advance notice and repeated on two consecutive days, under both direct and cross-examinations. My evidence took the form of an e-mail message from former-Dean R. Nils Olsen, who assured me that he had told me the truth about my promotion in April 2006 and would have had no conceivable reason to reappoint me without the facultys mandatory recommendation and then

lie to me about it. In addition, I gave President Tripathi e-mail messages from two highlyregarded professors who had been present at the P&T Committee meeting, Professor Markus Dubber (now at the University of Toronto) and Professor Shubha Ghosh (now at the University of Wisconsin). See http://www.scribd.com/doc/134010241/Makau-Mutua-Nils-Olsen-promotedJeff-Malkan-without-going-to-the-Committee-and-getting-a-vote As one might expect, faculty members still in Buffalo are reluctant to put anything in writing to me, but no one over the past seven years has ever even hinted to me that my reappointment and promotion had not been voted upon by the P&T Committee, much less asked me what [I] was still doing in the building, which Dean Mutua testified puzzled him and the rest of the faculty. These professors, of course, would be obliged to answer President Tripathi and tell him the truth, but he has made no inquiries, as far as I know, and ordered the Attorney General to proceed with the litigation while withholding any settlement offer or other accommodation that would allow me to resume my career in legal education. In other words, his response has been to circle the wagons. The story Ive recounted is one of institutional corruption that revolves around the legal writing program of a major state-sponsored law school for which my only recourse has been the judicial process. I hope it might prompt reflection about the legal protections upon which we all rely for our academic freedom in the most practical sense of being able to function in institutions of higher education without fear of reprisal from our employers. Although ALWD and LWI have made tremendous progress towards steering legal education in the right direction, and weve definitely made a dent in the universe, I think we need to realize that many law professors still regard legal writing professors as employees of the faculty rather than members of the faculty. To put it plainly, my view is that legal writing professors are law professors who teach legal writing, and Ive never considered myself to be anything but. Im quite certain that Dean Mutua, Vice-Provost Finley, and Vice-Dean Gardner would disagree and couldnt tolerate me because I stood too close to the line. This story has less to do with who I am, or who we are, than with who they are. That may be the real answer to the question of how this could have happened, and why. Sincerely,

Jeffrey P.S. I should conclude with a few words about my colleagues who were arbitrarily terminated by Dean Mutua and Vice-Dean Gardner after serving the legal writing program for at least six

years each. Ill omit their last names. Kendra is a leading practitioner in the field of NativeAmerican law in western New York. She graduated first in her class from SUNY Buffalo Law, summa cum laude, while raising young children, one of whom was a cadet at West Point during the time she was in our program. She was also a classmate of mine in the Ph.D. program at SUNY Stony Brook in the early 1980s. She joined our program in 2002. Jennifer is an honors graduate of Hartwick College and Valparaiso Law School. She attended both those schools on full-tuition merit scholarships. She practiced law for many years at Damon Morey, one of the top firms in Buffalo, before joining our program in 2001. Her husband is the news anchor of the local NBC affiliate, who graciously lent his presence to many law school events. Margaret is a graduate of Barnard College and a magna cum laude graduate of SUNY Buffalo Law, and practiced for six years at a highly respected boutique firm in Buffalo before which she worked at Phillips Lytle (another prestigious Buffalo firm) and clerked for the Appellate Division. She also joined our program in 2001 with the enthusiastic support of her former professors, including the former dean, and is now director of the paralegal program at a local college. Putting aside what happened to me, I believe that these three were victims of a serious injustice.