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Bennun v. Rutgers State University

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


filed: August 21, 1991.

DOCTOR ALFRED BENNUN
v.
RUTGERS STATE UNIVERSITY; BOARD OF GOVERNORS OF RUTGERS STATE UNIVERSITY; AND DOCTOR EDWARD J. BLOUSTEIN, PRESIDENT (CIVIL RIGHTS NO. 84-4655); DR. ALFRED BENNUN V. RUTGERS STATE UNIVERSITY; BOARD OF GOVERNORS OF RUTGERS STATE UNIVERSITY; AND DR. EDWARD J. BLOUSTEIN, PRESIDENT, RUTGERS STATE UNIVERSITY (CIVIL RIGHTS NO. 85-3491); DR. ALFRED BENNUN V. RUTGERS STATE UNIVERSITY (CIVIL RIGHTS NO. 86-621); RUTGERS, THE STATE UNIVERSITY; BOARD OF GOVERNORS OF RUTGERS, THE STATE UNIVERSITY; AND DR. EDWARD J. BLOUSTEIN, APPELLANTS

Appeal from the United States District Court for the District of New Jersey; (D.C. Civil Action No. 84-04655). {Judge}{Q}Judges{/Q}{/Judge}

Sloviter, Chief Judge, Becker, Stapleton, Mansmann, Greenberg, Hutchinson, Scirica, Cowen, Nygaard and Roth, Circuit Judges, and Smith, District Judge.*fn* Chief Judge Sloviter would grant in banc rehearing for the reasons set forth in her attached Statement Sur Denial of Rehearing In Banc. Judge Roth would grant in banc rehearing and joins in Chief Judge Sloviter's attached Statement.

SUR PETITION FOR REHEARING

The petition for rehearing filed by appellants in the above captioned matter having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.

SLOVITER, Chief Judge, dissenting from the denial of a petition for rehearing, with whom Judge Roth joins.

I dissent from the denial of rehearing in banc in this case because I believe that the majority's decision may be read to thrust the federal courts of this circuit into the subjective area of academic tenure and promotion decisions to an unwarranted and unprecedented degree.

I do of course accept the proposition that the tenure and promotion decisions of colleges and universities are subject to Title VII. See Kunda v. Muhlenberg College, 621 F.2d 532, 545 (3rd Cir. 1980). I also accept the proposition that when an academic institution violates Title VII, the court is obligated to fashion an appropriate remedy. See id. at 549. On the other hand, we cautioned that,

it is clear that courts must be vigilant not to intrude into that determination, and should not substitute their judgement for that of the college with respect to the qualifications of faculty members for promotion and tenure. Determinations about such matters as teaching ability, research scholarship, and professional stature are subjective, and unless they can be shown to have been used as the mechanism to obscure discrimination, they must be left for evaluation by the professionals, particularly since they often involve inquiry into aspects of arcane scholarship beyond the competence of individual judges.

Id. at 548. See also Gurmankin v. Costanzo, 626 F.2d 1115, 1125 (3d Cir. 1980), cert. denied, 450 U.S. 923, 67 L. Ed. 2d 352, 101 S. Ct. 1375 (1981).

In the present case, it would appear that this Court may have abandoned the doctrine of restraint set forth in Kunda. In Kunda, although we affirmed a judicially imposed requirement of tenure, the plaintiff's qualifications were not in dispute, and the court accordingly did not review the college's assessment of her qualifications. In this case, Professor Bennun's qualifications to be full professor were in dispute among the faculty and administration at Rutgers. Thus, from the limited record available to me on a petition for rehearing, it appears that the district court reassessed every decision made by Rutgers regarding Professor Bennun's qualifications and concluded that the court's assessment of the factors under review was superior to the university's. If the court did so in lieu of deferring to the university's ultimate resolution of that dispute, the district court would have gone far beyond the boundaries of review set out in Kunda.

I do not believe that it is proper or desirable for the courts of this circuit to become involved in substantive tenure and promotion decisions in the academic setting unless the evidence of discriminatory action is unmistakable. Because I believe that this opinion appears, at least on its face, to be in conflict with our prior restraint, I would grant the petition for rehearing in banc.


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