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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