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May 10, 1996

RUTGERS, THE STATE UNIVERSITY, JOSEPH J. SENECA, Chair, Promotion and Review Committee, FRANCIS L. LAWRENCE, President, Rutgers University, Defendants.

The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 Currently before the court is a motion for summary judgment filed by the Defendants (the "Motion for Summary Judgment"), pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. *fn1" For the reasons set forth below, the Motion for Summary Judgment is granted.


 A. Parties and Individuals Involved

 Rutgers is "the state university of New Jersey." N.J.S.A. § 18A:65-3. Lawrence is the president of Rutgers. Defendants' Rule 12G Statement at 1. Seneca is vice-president of Rutgers for academic affairs. Id. The Board of Governors (the "Board") has supervisory authority over Rutgers and makes decisions regarding promotions of faculty members. Id. (citing N.J.S.A. § 18A:65-25).

 Jean L. Ambrose has been assistant vice-president for faculty affairs at Rutgers since November 1986. Ambrose Aff., P 1. Prior to that time, she was associate dean of the Graduate School-Newark. Id. In 1985, Stewart joined the Rutgers faculty as an assistant professor in the Graduate School of Education, Department of Learning and Teaching (the "Department"). Defendants' Rule 12G Statement at 5. Stewart has focused her research and writing on literacy development in early childhood, including "strategies for educating low-income, minority children." Plaintiffs' Rule 12G Statement at 1-2 (citations and internal quotations omitted); Ambrose Aff., Ex. F.

 Anthony E. Kelly ("Kelly"), who is caucasian, was promoted from assistant to associate professor and received Tenure during the 1994-95 academic year, also in the Department. Defendants' Rule 12G Statement at 15; Moving Brief at 1. Michael W. Smith ("Smith"), another caucasian member of the Department, was Tenured during the 1994-95 academic year. Defendants' Rule 12G Statement at 19; Moving Brief at 1.

 B. Background

 1. The Rutgers Tenure Evaluation Process

 The scholarship, teaching and service of an assistant professor are considered in deciding whether to grant Tenure. Ex. A (University Policy with Respect to Academic Appointments and Promotions (the "Policy")) to Ambrose Aff. at 1; Plaintiffs' Rule 12G Statement at 2-3; Defendants' Rule 12G Statement at 1. The parties dispute the extent to which promotion involves subjective and objective factors. Moving Brief at 9-10; Opposition Brief at 4-8; Reply Brief at 6-8. The Policy provides in relevant part:

Informed judgments concerning a faculty member's accomplishments can be made only by qualified colleagues. Such subjective judgment by persons competent to evaluate duties, responsibilities, services, and accomplishments will protect the interest of professors themselves, the department, the college, the University, and the students better than any objective rating that could be devised.

 Ex. A (Policy) to Ambrose Aff. at 4-5 (emphasis added); see Seneca Dep. at 67-70.

 Stewart was denied Tenure based upon evaluations of her scholarship. Defendants' Rule 12G Statement at 1 n.2 (citing Seneca Dep. at 41-43, 48, 69-70). Several factors are considered to measure scholarship, including peer evaluations, research, presentation of papers, fellowship awards and publication of books and articles. Id.; Plaintiffs' Rule 12G Statement at 3. Seneca states no single factor is dispositive in the evaluation of a candidate's scholarship. Plaintiffs' Rule 12G Statement at 3 (citing Seneca Dep. at 74-76).

 The 1994-95 Academic Reappointment/Promotion Instructions ("1994-95 Instructions") describe the process for applying for Tenure. Ex. C (1994-95 Instructions) *fn3" to Ambrose Aff. To apply for Tenure, a candidate must first prepare a description of his or her qualifications, including scholarly accomplishments, a document known as Form 1-a ("Form 1-a"). Defendants' Rule 12G Statement at 2 (citing 1994-95 Instructions at 4-14). Form 1-a, along with "supplementary materials submitted by the candidate, if any," confidential letters of recommendation and other evaluation forms comprise a document known as a promotion packet ("Promotion Packet"). Id. at 2-3.

 Tenured members of a candidate's department first evaluate the Promotion Packet and produce a report, reflecting the majority and minority views on the substance of the candidate's application. Defendants' Rule 12G Statement at 3 (citing 1994-95 Instructions at 9). The appointments and promotions committee ("A & P Committee"), also composed of faculty members at the candidate's institution, evaluates the Promotion Packet and provides a written recommendation to the Dean. Id. (citing 1994-95 Instructions at 12). The Dean considers the evaluations of the Tenured members of the candidate's department and the A & P Committee and makes an independent recommendation. Id. The PRC, chaired by the vice-president of Rutgers for academic affairs -- in this case, Seneca -- plays a role in the Tenure process. Id. at 4. The PRC is charged with guarding the integrity of the Tenure review process by ensuring that evaluations of a candidate have been made by leaders in their academic fields and that "appropriate evidence and analysis have been presented of accomplishment and impact on the field to support these judgments, and that the dean has applied the highest, University-wide standards of quality." Id. (quoting 1994-95 Instructions at 13). The chair of the PRC serves without vote. Id. "Finally, the [PRC] has the responsibility on the basis of its assessment of these matters, to reach a recommendation concerning the candidate." Id. The PRC reviews each candidate independently, without making comparisons with the credentials of other candidates. Id. (citing Seneca Dep. at 24). The PRC then submits a report to the president of Rutgers -- in this case, Lawrence -- who reviews the materials and submits a recommendation to the Board. The Board decides whether to grant or deny Tenure. Id. (citing 1994-95 Instructions at 14).

 From the 1990-91 academic year to the 1994-95 academic year, Rutgers considered 368 faculty members for Tenure. Of these, 238 faculty members were Tenured, a success rate of sixty-five percent. Defendants' Rule 12G Statement at 2 n.3 (citing Ambrose Aff., P 3). Stewart represents that, while employed at Rutgers, no African-American received Tenure in the Department, although another African-American faculty member was hired with Tenure from another institution. Plaintiffs' Rule 12G Statement at 2 (citing Stewart Dep. at 332-33). She also represents that there were no African-American members of the PRC between 1992 and 1995, the time during which she was considered for Tenure. Id. at 9 (citing Seneca Dep. at 70). Stewart states there has not been a Tenured African-American member of the Department for at least twenty years. Stewart Dep. at 332.

 2. Stewart's 1992-93 Evaluation for Tenure

 Stewart first applied for Tenure during the 1992-93 academic year. Her Promotion Packet (the "Stewart 1992-93 Promotion Packet") then contained evaluations by nine individuals, each a faculty member at a university other than Rutgers. Defendants' Rule 12G Statement at 5. "All the [outside evaluators] are leading scholars in [Stewart's] field at highly respected public institutions. They include seven professors, many of whom are nationally prominent and two associate professors." Ex. F (Stewart 1992-93 Promotion Packet) to Ambrose Aff. at 81 (conclusions of Acting Dean Nobuo K. Shimahara ("Shimahara")). The evaluations are summarized below.

 A professor at the University of Georgia, who judged Stewart's scholarship "by quality and quantity of publications," concluded: "I would have thought that a person at [Stewart's] level would have developed her ideas more fully in published work. In short, she has chosen a very interesting area in which to work but has not, as of yet, published a systematic account of her research in this area." Ex. F (Stewart 1992-93 Promotion Packet) to Ambrose Aff. at 26 (emphasis in original).

 A professor at Ohio State University described Stewart's work as "cutting edge" and stated Stewart "has made a substantial contribution in the area of early literacy research." Ex. F (Stewart 1992-93 Promotion Packet) to Ambrose Aff. at 29. He concluded:

Characteristics such as energy, drive, curiosity and knowledgeable (sic) distinguish [Stewart] from the majority of her counterparts at other institutions. She has amassed a history of scholarship evidenced in the quality of her published articles and submissions to date. Moreover, she has the necessary background, curiosity and drive to continue to make substantial contributions. She has earned a reputation of trustworthiness, commitment, integrity and collegiality.

 Id. at 30.

 A professor at Boston University concluded "there appears to be some coherence and integrity to [Stewart's] scholarly activity," and indicated Stewart worked as a graduate student with Jana Mason ("Mason"). Mason is a distinguished academic in the field of early literacy research, which has been the focus of Stewart's scholarship. Ex. F (Stewart 1992-93 Promotion Packet) to Ambrose Aff. at 33. This assessment indicated Stewart had coauthored several articles, on which she was second author, and had just begun to produce articles as a first or sole author. Id.

 An associate professor at the University of Georgia gave Stewart a positive review, concluding that Stewart's "scholarship has given her national prominence as a researcher in the area of literacy development in young children." Ex. F (Stewart 1992-93 Promotion Packet) to Ambrose Aff. at 37. Another professor at Ohio State University concluded Stewart had become a prolific writer and gave her a favorable review for the quality, quantity and originality of her work. Id. at 40-41.

 A professor at the University of Colorado at Boulder indicated Stewart had published one article in a journal, five chapters in edited volumes and nine technical reports. As well, three of Stewart's articles were then under review by journals and one was being revised and resubmitted to Reading Research Quarterly, a "first-tier" journal. Ex. F (Stewart 1992-93 Promotion Packet) to Ambrose Aff. at 43. "With the addition of the Reading Research Quarterly piece and one additional acceptance of the three journal articles out for review, [Stewart] has proven the ability to conduct an independent and ongoing line of research." Id. at 44.

In summary, when I compare [Stewart's] past record of achievements with other scholars who are at the same time in their careers, I would say that she is between the second and third quartile; however, if I base my evaluation on the promise which seems inherent in her work, I would give a more hearty endorsement.

 Ex. F (Stewart 1992-93 Promotion Packet) to Ambrose Aff. at 52.

 The Department evaluated Stewart's 1992-93 Promotion Packet and recommended, by a vote of eleven to one, that she receive Tenure. Defendant's Rule 12G Statement at 7. The Department concluded, however, that Stewart had not "'fully demonstrated peer acceptance and recognition of her work,'" had only recently developed "an 'independent line of research'" because most of her work was co-authored or multiple-authored and also concluded "there was not 'definitive evidence that [Stewart's] scholarly activities have attained the peer acceptance that is indicated by publications in refereed *fn4" journals.'" Id. at 8 (quoting Ex. F (Stewart 1992-93 Promotion Packet) to Ambrose Aff. at 69-76).

 The A & P Committee recommended against granting Stewart tenure by a vote of two to one, concluding that "while [Stewart] is not a strong candidate for promotion at Rutgers, she has demonstrated the potential for being a productive and nationally visible scholar." Ex. F (Stewart 1992-93 Promotion Packet) to Ambrose Aff. at 79.

 Shimahara recommended Stewart for Tenure, observing that seven of nine reviews, as summarized, "speak of Professor Stewart's scholarship in very high terms." Ex. F (Stewart 1992-93 Promotion Packet) to Ambrose Aff. at 81. He also observed that Stewart had published one article "in a leading national journal," had written five book chapters as a co-author and authored or co-authored twelve technical reports. Ex. F (Stewart 1992-93 Promotion Packet) to Ambrose Aff. at 82-83. Shimahara also indicated Stewart then had four manuscripts under review, two of which she had revised and had good odds of being published.

The fact that she has co-authored most of her articles, reports, and book chapters and published one refereed article to date, seems disturbing. But it should be reiterated that her contributions are broadly recognized by senior scholars in the field across the nation as 'substantial' and representing the 'cutting edge' in the field of young children's literacy. It is the quality of her research that earns such respect.

 Id. at 82.

 On 29 March 1993 (the "29 March 1993 Letter"), Seneca, writing for the PRC to Lawrence, recommended Stewart be denied Tenure:

Professor Stewart is an able teacher, appreciated by her colleagues and students. She has established an excellent record of participation in professional organizations and University activities. Professor Stewart's scholarly record has been evaluated by reviewers as promising, but several note a lack of substantive contributions. The independence and quality of her work are questioned by some evaluators. The [PRC], therefore, concludes that, based on the assessment of her record, Professor Stewart has not achieved a level of scholarly accomplishment to justify promotion to the rank of Associate Professor with tenure.

 Ex. F (Stewart 1992-93 Promotion Packet) to Ambrose Aff. at 84. Lawrence reviewed the Stewart 1992-93 Promotion Packet and concurred in the decision of the PRC. He so informed the Board. Defendant's Rule 12G Statement at 9 (citing Lawrence Aff., P 2). By letter, dated 2 April 1993, Shimahara informed Stewart that the Board declined to grant her Tenure. Id.

 3. Stewart's 1993 Grievance Filing

 Rutgers has an agreement (the "Agreement") with the American Association of University Professors (the "AAUP") which provides for a grievance procedure "to help ensure the integrity of the reappointment, promotion, and tenure procedures; to provide a process for determining whether evaluations resulting in negative personnel actions were flawed . . . and to provide remedies in cases where defects are found." Ex. E (Agreement) to Ambrose Aff. at 28. Under the Agreement, an aggrieved faculty member may contest a decision on grounds it was arbitrary or capricious, was the ...

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