Appeals Court Judge: Allegations Of Prof. Denied Tenure “Reveal a Grotesque Miscarriage of Justice at Cornell University”
Hon. José A. Cabranes: Higher education procedures in Title IX cases “have been compared unfavorably to those of the infamous English Star Chamber.”
I’ve said it so many times in so many places, but it’s worth repeating: Universities are among the most vicious litigators I’ve ever seen. They fight to the bitter end on almost everything because they are holier than thou in their own minds. They fight on principle with other people’s money, and often it’s ideological, like in the despicable campus kangaroo courts that send people to their career deaths based on flimsy and contradictory evidence without meaningful due process.
I said as to Oberlin College’s treatment of the Gibson family:
… these colleges and these universities are some of the most vicious litigants I’ve seen. Before I joined Cornell Law School for 22 years, I was a civil litigator, they fight like everything.
And I think one of the big takeaways is that these are very powerful entities. They fight more viciously than your local chemical company. And they wrap themselves in this “holier than thou” attitude because they’re educators and, therefore, somehow they have some sort of moral superiority. But as we’ve seen in the Oberlin College case, they don’t, they really are just vicious, vicious, litigants, and people who have no trouble smearing others in trying to destroy them.
So it no surprise that a reader sent me multiple articles about a decision by the Second Circuit Court of Appeals in the case of Dr. Mukund Vengalattore, who has been fighting against Cornell Universiy for years over his denial of tenure after what he alleges was a false sexual harassment claim against him.
In 2017, The Cornell Daily Sun student newspaper published a detailed timeline of Dr. Vengalattore’s struggles:
Nearly a decade ago — long before he claimed Cornell exerted bias in not admitting students to his lab, unfairly denied him tenure and continues to violate a court order by not restarting the tenure review process — Prof. Mukund Vengalattore, physics, was seen by colleagues as a vital hire for the University.
The professor now claims Cornell has consistently been wronging him since 2012, when he first applied for tenure. The University’s wrongdoing, the professor alleges, was at its peak during his tenure review, which a judge said violated Vengalattore’s due process rights “to such an extent as to be arbitrary and capricious.” The University must restart the tenure review, Chemung County Court Justice Richard Rich ruled in November 2016.
The University has twice tried to remove Vengalattore from campus — first in June 2016, and now on Friday, when it imposed an unpaid, two-week suspension on the professor. Vengalattore asked a Schuyler County Court to hold the University in contempt last week because, he said, Cornell has yet to start its new, court-ordered tenure review.
The case ended up in federal court, with a Complaint filed against Cornell and the U.S. Dept. of Education, that latter of whom was accused providing mandatory guidance that pressured Cornell to violate his rights.
The New Civil Liberties Alliance, which is representing him, has a case page about the case that includes this description and video:
Dr. Vengalattore was a tenure-track professor of physics at Cornell University with an impressive history of conducting ground-breaking research. After a graduate student left his program for academic reasons, the student falsely accused Dr. Vengalattore of sexual harassment.
Following mandatory “guidance” from the U.S. Department of Education, Cornell had set up a campus disciplinary process that dispensed with every fundamental notion of due process. Dr. Vengalattore was not allowed to see the accusations against him, much less challenge the “evidence” collected by the college, provide evidence of his innocence, confront his accuser, or even defend himself at a hearing.
Unable to prove his innocence in this unfair process, Dr. Vengalattore was denied tenure, disciplined by Cornell, and faced the loss of his promising career. NCLA sued Cornell for its violations of due process, but also the Department of Education for forcing Cornell to adopt such an unfair process.
Now I don’t know who’s right and who’s wrong on the facts of the case. And universities are allowed to defend themselves. Cornell did so successfully in the District Court, which threw the case out, finding all of Dr. Vengalattore’s claims legally deficient.
That all changed when the Second Circuit found that Dr. Vengalattore’s federal claim under Title IX against Cornell should not have been dismissed, with the District Court later to decide whether to retain jurisdiction over his state law defamation claim. NCLA describes the victory:
The U.S. Court of Appeals for the Second Circuit today vacated the dismissal of the Title IX and defamation claims in Dr. Mukund Vengalattore v. Cornell University and the U.S. Department of Education. It held that university discrimination against faculty on the basis of sex is subject to suit under Title IX….
Judge Amalya Kearse, writing for the majority, described Cornell’s procedures in dealing with the allegations as “fundamentally skewed.” Judge Kearse noted that “The accuracy of the investigators’ recommended finding that Vengalattore had a sexual relationship with [Jane] Roe … is plausibly called into question not only in light of the investigators’ rejection of Vengalattore’s requests to pursue evidence that could have supported his denial of a sexual relationship with Roe, but also in light of rationales proffered by the investigators for certain conclusions.”
You can read the Second Circuit Opinion here. Only the sex discrimination claim survived (and possibly state defamation claim), but it’s an important point because it goes to the heart of why he alleges he was denied tenure.
But what’s getting the most attention is the Concurring opinion by Judge José A. Cabranes, which starts at page 69 of the pdf. linked above. Here it is in full, it’s an indictment of a corrupted system throughout higher education (emphasis added):
JOSÉ A. CABRANES, Circuit Judge, concurring:
I concur in the judgment of the Court and in Judge Kearse’s comprehensive opinion. I pause briefly to comment, in my own name, that, as alleged, this case describes deeply troubling aspects of contemporary university procedures to adjudicate complaints under Title IX and other closely related statutes. In many instances, these procedures signal a retreat from the foundational principle of due process, the erosion of which has been accompanied — to no one’s surprise — by a decline in modern universities’ protection of the open inquiry and academic freedom that has accounted for the vitality and success of American higher education.1
[ fn. 1 See generally Richard Hofstadter & Walter P. Metzger, The Development of Academic Freedom in the United States (1955); and the related volumes Richard Hofstadter, Academic Freedom in the Age of the College (1961) and Walter P. Metzger, Academic Freedom in the Age of the University (1961). There are, fortunately, some notable exceptions — principal amongst them the University of Chicago, which in 2015 reaffirmed its “commitment to a completely free and open discussion of ideas.” The Chicago Principles: Report on the Committee on Freedom of Expression, University of Chicago, available at https://provost.uchicago.edu/sites/default/files/documents/reports/FOECommitteeReport.pdf.]
This growing “law” of university disciplinary procedures, often promulgated in response to the regulatory diktats of government, is controversial and thus far largely beyond the reach of the courts because of, among other things, the presumed absence of “state action” by so-called private universities. Thus insulated from review, it is no wonder that, in some cases, these procedures have been compared unfavorably to those of the infamous English Star Chamber.2
[fn. 2 See American Association of University Professors, The History, Uses, and Abuses of Title IX (June 2016), at 87, available at https://www.aaup.org/file/TitleIXreport.pdf.]
Vengalattore’s allegations, if supported by evidence, provide one such example of the brutish overreach of university administrators at the expense of due process and simple fairness. His allegations, if corroborated, would reveala grotesque miscarriage of justice at Cornell University. As alleged, Cornell’s investigation of Vengalattore denied him access to counsel; failed to provide him with a statement of the nature of the accusations against him; denied him the ability to question witnesses; drew adverse inferences from the absence of evidence; and failed to employ an appropriate burden of proof or standard of evidence. In other cases and other universities the catalogue of offenses can include continuing surveillance and the imposition of double jeopardy for long-ago grievances.3
[fn. 3 Elsewhere, I have criticized the “specialized inquisitorial procedures that universities have developed for sexual-misconduct cases.” José A. Cabranes, For Freedom of Expression, for Due Process, and for Yale: The Emerging Threat to Academic Freedom at a Great University, 35 Yale L. & Pol’y Rev. 345, 353 (2017). These procedures can deprive the accused of various rights, including the right to a public hearing or the complete record of a private hearing, the right to have counsel speak on the accused’s behalf, the right to friendly witnesses, the right to confront and cross-examine adverse witnesses, and the right to the presumption of innocence until proven guilty. Id. at 355; see also José A. Cabranes, The New ‘Surveillance University,’ Washington Post (Jan. 11, 2017) (describing the adoption of university surveillance and reporting regimes which can be used as “tool[s] for policing the teaching and research of the professoriate”). Even short of formal discipline, such lack of due process may inflict reputation harm, particularly where rules of “confidentiality” make it effectively impossible for an accused to respond publicly to damaging pronouncements by managers of the university grievance system.
There is no doubt that allegations of misconduct on university campuses — sexual or otherwise — must, of course, be taken seriously; but any actions taken by university officials in response to such allegations must also comport with basic principles of fairness and due process. The day is surely coming — and none too soon — when the Supreme Court will be able to assess the various university procedures that undermine the freedom and fairness of the academy in favor of the politics of grievance.
In sum: these threats to due process and academic freedom are matters of life and death for our great universities. It is incumbent upon their leaders to reverse the disturbing trend of indifference to these threats, or simple immobilization due to fear of internal constituencies of the “virtuous” determined to lunge for influence or settle scores against outspoken colleagues.
I can’t predict the outcome ofthe case, but I can predict that Dr. Vengalattore has a long litigation road ahead.
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This is a very insightful and informative recap of this case — thank you, Professor J.
Civil law really doesn’t work. With attorney fees at $350 to $550 per hour, hardly anyone except those with deep pockets can afford it. I’ve been involved in three civil actions, each spanning three years. In each case, the objective was to grind down the other side, in an ugly attempt to inflict them with maximum damage through high legal high costs. If it was about setting a legal controversy over facts or laws, all three of my cases could have been settled in a week, through a few exchanged legal memorandums/pleas, by the opposing attorneys. One of the surprising things I discovered in each of my three lawsuits is how deeply unhappy the lawyers were. It seems every attorney that I met was unhappy. They would often openly discussed with the opposing attorney how much contempt they have for the field, in front of their clients.
If you were doing what they were doing, wouldn’t you be unhappy, too?
Yes. It’s a complete waste of life, for both the clients and the attorneys. Most of these attorneys are very bright and thus feel under challenged. As a client, I was deeply unhappy also, because these legal actions are not something you can put on the back burner or offload onto the attorney(s).. It requires constant focus, leaving you drained. After 3 years of it, you feel like you’ve lost, even if you’ve won. I’m impressed with legal theory, but that’s just academic theory. Practically, from what I’ve seen, its just a horrible grind.
There’s a lot of truth in what you say. It’s why arbitration is becoming more and more popular, as an alternative dispute resolution mechanism. Cheaper and faster. None of this long, drawn-out civil tort drama, where the only real winners are the lawyer pocketing the juicy fees from protracted litigation.
Supposedly arbitration cuts down on the time. But arbitration still requires the same processes: discovery, interrogatories, etc. It’s less formal, but still expensive and time consuming. The attorneys burn through your money at the same rate. One of my three civil actions was an arbitration. It lasted three years, like my other two civil actions.
Arbitration is no longer cheaper or faster–with the discovery, attorneys fees and arbitrators’ fees, you might as well go to court since you have better appellate rights for a bad decision
There is no fighting the good fight. There is no vindication should one ultimately prevail through years of expense, corruption, institutional inertia, greed, ignorance and luck.
One who is wronged should look in the mirror and ask, “Can I still go on, bruised but wiser? What right do I have to drag my family through such filth to receive at best an inconclusive and unconvincing “vindication?”
Roll up your sleeves, be a man, accept what cannot be changed and move on. And, a pox on their houses.
It is shocking that the Second Circuit Court of Appeals didn’t vigorously support the woke university’s policies. Justice Sotomayor must be soooooo disappointed.
They clearly lost sight of their purpose.
If I am not mistaken, Donica Thomas Varner, the former General Counsel at Oberlin during the Gibson Bros. trial as well as Title IX transgressions, is now the GC at Cornell. How is it she could be presiding GC for such conduct at both institutions?
Room temp IQ?
No longer listed at Oberlin and is now listed as Vice President and General Counsel @ Cornell U.
If the saying “What goes around comes around” holds weight it begs the question if this bodes ill wind for Prof. J as a result of coverage of the Oberlin lawsuit. When the national media was not looking Prof. J vested himself and staff here at L.I. which put the focus on just one part of the undemocratic policies and injustices used in America’s Universities and Colleges. As a result of the superb coverage at Legal Insurrection of the Oberlin trial it brought L.I. and Prof. J to the attention of the national media leading to many guest invitations to join the media and conferences to continue to address these issues and opine on other national happenings.
I like to believe that at his point Prof. J holds an equal if not a stronger position than the Cornell U. legal department and it is not if, but when, Cornell U. comes after him, (they’ve tried), in their endeavor to remove him, The coverage from his staff will make this another ‘Oberlin’ like media event.
” . . . it begs the question if this bodes ill wind for Prof. J as a result of coverage of the Oberlin lawsuit.”
I think the Cornell sexual grievance department and the ACLU and prepping Christine Blasey Ford to write an OpEd for WAPO.
“The district court must now allow extensive discovery and a trial on many of MV’s claims. Cornell can either offer to make a settlement or decide to go to trial. Ultimately, Cornell University Counsel Donica Thomas Varner will make that recommendation. Varner, when she served as University Counsel of Oberlin, decided to press ahead on extensive appeals of the Gibson’s Bakery case, another example of what some say is excessive overreach by a college administration.”
I spent all weekend reading the background materials related to the case including the change.org petition, Jane Roe’s LinkedIn profile and her PhD dissertation. Perhaps “Karen” be a more apt name than “Jane Roe.” A blonde sorority girl somehow gets accepted into the Cornell PhD program, one of the top programs in the country, where are of the students are incredibly smart. She picks a subtopic of physics that involves a lot of experimentation. From January 2009 to October 2012, virtually every experiment she sets up does not work. They work after other students are assigned to “help” her work on the experiment. She leaves without writing up her work or even thinking about a thesis. She would settle for a Masters Degree as a consolation prize and heads off to a research job in a different state.
As soon as she leaves, with some modifications, the experiments start making major breakthroughs. Finally, in 2014 the group writes up the work for peer reviewed publication. At this time, the professor is getting ready for his tenure review. To be charitable, they send the draft paper to Karen for comment and list her as third author. She demands to be first author, and the team says no, and Karen is very angry. The authors are listed as first initial and last name, and she complains that in her case, that spells out something “sexually suggestive.” So, they add her middle initial.
She then sends a letter opposing his tenure claiming that the professor threw a power supply at her, when the witnesses say he slid it down a table toward her. She then claims that the first initial-last name format was a form of sexual harassment. Despite this the Physics Dept votes for tenure. So, in October, Karen escalates this by claiming “rape” and a year-long secret sexual relationship with him, without any proof. It can’t be processed as a Title IX complaint because too many years went by without filing a complaint. So, the Dean invents an ad hoc procedure. The rape claim was disproven, but the Dean found that a “preponderance of the evidence” supported finding the improper relationship. Many more procedural errors followed. Not only did Karen torpedo the tenure application, but following procedures that defy explanation, suddenly she is awarded a Cornell PhD, even though she never was first author on any journal article and half of her thesis is a write up of a simple survey about sexual harassment taken by undergraduates attending a conference for female physics majors . Both Cornell’s reputation and the value of a Cornell Physics PhD have been cheapened by this episode.
and my alma mater is unable to understand why I haven’t donated in the past fifty years
Universities generally are scorched earth litigation adversaries who pay millions for defense and a cent for tribute Cornell appears to have used the same playbook as Oberlin
I have been named in a couple of business-related lawsuits for having a tangential relationship to the real litigants, but they were run-of-the-mill bickering over bad business deals and who should ultimately pay the price for them. No lofty principles as stake. Just stupid greed. I agree with those above who recommend getting disengaged from such things as rapidly as possible. There is very likely no real victory to be had in terms of being made financially whole. Only the lawyers get compensated.
But when you get tapped by history to fight for a worthy cause, I appreciate folks who look deep down in themselves, consult their moral compass, and proceed on principal. Of course this professor can never get his life back. But he can do everything in his power to punish the evil that brought this about and which is increasingly poisoning our legal system and our society as a whole. Good for him. If your enemies are tenacious, then be implacable. Fight the good fight. It matters.
And we can do our part by contributing to public interest law firms such as Institute for Justice and others that actually care about people’s rights and fight for the little guy. George Soros is spending his money to buy the legal system. What are you buying?
Here is another example of a miscarriage of justice by the DOJ https://www.dailywire.com/news/biden-doj-wants-reduced-sentence-for-leftist-lawyers-who-used-molotov-cocktails-to-target-police-van-during-protest The same woke legal establishment that couldn’t wait to take down Giulani has been clearly missing in action with respect to these two lawyers who were clearly intent on firebombing NYPD vehicles during the riots of 2020. I would not bet one either of these two domestic terrorists serving a day in jail or losing their law licnenses
The annexed brief was submitted by 56 former federal prosecutors solely on the grounds that there was no basis for pre-trial detention of the two lawyers and would be terrorists as domestic terrorists. A careful reader will note the absence of any reference to the riots of the summer of 2020 and the extensive damage caused by the same
Clearly, would be domestic terrorists who were arrested for planning to throw Molotov cocktails at police cars somehow wind up with the creme de la creme alumni of federal prosecutors filing an amicus on their behalf . One should not be shocked that the woke legal world in the same zealous manner went after Giulani on the pretext of poor advocacy while in fact the suspension focused on Giulani raising the issue of the propriety of the 2020 election returns.