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To: gbinder@buffalo.edu; kimconno@buffalo.edu; eemeid@buffalo.edu;
ubprovost@buffalo.edu; jljarvis@buffalo.edu; jereed@buffalo.edu;
jgard@buffalo.edu; finleylu@buffalo.edu; dwestbro@buffalo.edu;
lechiesa@buffalo.edu; bladelfa@buffalo.edu
Subject: Why no faculty investigation?
Date: Thu, 16 Apr 2015 08:05:42 -0400
What SUNY Buffalo is experiencing isn't just the problem of declining enrollment, aggravated by its own
mistake of expanding the faculty by twenty-two new professors while almost doubling tuition and losing
one-third of its first-year class. The problem is that the University administration has decided to defy
federal law, state law, and its own accrediting agency in order to repress faculty self-governance and
allow Makau W. Mutua and Jim Gardner to pursue their own malicious personal agendas.
1. In April of 2009, then-Provost Satish K. Tripathi, former-Dean Makau W. Mutua, and former-Vice
Dean James A. Gardner submitted false statements to the ABA Site Visit Committee, lying about the Law
School's compliance with ABA Standard 405(c), the clinical faculty standard. This was a fraud on the
Law School's accrediting agency.
2. Makau W. Mutua lied at a hearing of the Public Employment Relations Board (PERB), on March 31
and April 1, 2010, about his contacts with Vice-President for Human Resources, Scott J. Nostaja. FormerDean Mutua falsely claimed that he knew nothing about the union's request for a meeting with him in fall
of 2008 because he had been insulated by his Vice-Dean for Administration, James R. Newton, who
inexplicably withheld this vital information from him. This was obviously a lie for which Mr. Newton
was required to fall on his sword. This month, Mr. Newton suddenly left his post in the Law School with
no explanation or forwarding address.
3. Finally, Makau W. Mutua, at the same hearing of the Public Employment Relations Board, on March
31 and April 1, 2010, lied about the Promotion and Tenure (P&T) Committee's vote on my reappointment
and promotion.
4. Satish K. Tripathi lied under oath in a sworn declaration in federal district court, dated December 5,
2013, stating that his office staff had intercepted every single document I had sent to him over the
previous two years regarding my allegations against former-Dean Mutua, as well as the two front-page
articles published in the UB Spectrum, and that he was therefore innocent of any knowledge of the
situation in the Law School. This is not only absurd, but it is a "Teflon Don" organized crime tactic.
https://www.scribd.com/doc/254...
5. President Tripathi followed this perjury by his sustained refusal over the next nine months to allow any
investigation of former-Dean Mutua. To the present day, President Tripathi refuses to acknowledge my
allegations against former-Dean Mutua, even though the facts are backed by compelling evidence on file
in federal district court.
6. Makau W. Mutua, for all his misdeeds, is still collecting the enhanced salary of a SUNY Distinguished
Professor. No one as far as I know has ever been placed on a paid sabbatical leave for three semesters in a
row. (It is *not* true that he is teaching in the Law School this semester.) He has left the United States
and is living full-time in Rome, Italy while the U.S. federal magistrate is reviewing allegations, filed
under the provisions of Rule 11 of the Federal Rules of Civil Procedure, of perjury and obstruction of
justice.
7. Makau W. Mutua repeated his perjury in a deposition taken under the auspices of the federal district
court on December 19, 2013. At this deposition, he also claimed that he could not produce the
subpoenaed records of my promotion to full clinical professor because my dossier had been vandalized by
former-Dean R. Nils Olsen and former Vice-Dean Susan V. Mangold to cover-up their subversion of the
faculty by promoting an "imposter." He said his version of events would be supported by formerPresident Bill Greiner who, unfortunately, could not speak for himself because he had passed away four
years earlier.
8. James L. Jarvis, Esq., SUNY Employment Counsel, testified under oath, on December 20, 2013, that
SUNY Buffalo Law School is illegally granting presumptively renewable term contracts to tenure-track
faculty and clinical professors. He swore that these employment contracts have no legal validity under
New York State law. He knows that SUNY is a state agency and that the University's long-standing
interpretation of the SUNY Trustees' Policies, its enabling legislation, is exactly the opposite. He also
knows that in 2009 the Law School certified exactly the opposite to the ABA.
https://www.scribd.com/doc/253...
9. Satish K. Tripathi refused to allow the faculty to approve its own permanent Dean in May 2009, and
again in November 2010. He protected Makau W. Mutua in the Dean's Office until September 22, 2014,
when the perjury scandal was due to be reported within days by the Buffalo News. He then refused to
appoint an interim dean for three additional months.
http://www.buffalonews.com/cit...
http://www.ubspectrum.com/arti...
http://www.ubspectrum.com/arti...
10. He finally appointed James A. Gardner as Interim Dean on December 20, 2014, the day the faculty
dispersed for its six-week winter vacation. Interim Dean Gardner has stated that he will continue to
occupy the Dean's Office for the indefinite future, that is, until he and President Tripathi determine that
"conditions are favorable." Interim Dean Gardner also stated that he will remain in office as long as he
and the President decide they like this arrangement. He was not selected by the faculty, but rather was
"nominated" by "several" faculty members, whatever that means. The faculty has not been allowed to
vote on its own Dean since R. Nils Olsen, Jr., was appointed in 1998.
The Law School's self-inflicted damage over the term of former-Dean Mutua's administration is reflected
by the facts at the bottom of this page. The Law School's tuition is so high ($26,100 plus $2,300 in
mandatory fees) that Albany Law School - a private law school - now guarantees to match this price for
all three years for any SUNY undergraduate or graduate student.
The Law School's U.S. News ranking now stands at a seven-way tie for 87th place, an "improvement"
about which the Law School boasts on its web page, failing to mention that former-Dean Mutua
repeatedly "pledged" over the past seven years to attain a ranking in the top fifty.
Jim Gardner cannot solve anything because he has been instrumental in creating this crisis. If my
allegations involved a student's violation of the Honor Code, the faculty would determine whether the
allegations were true and impose an appropriate sanction, if warranted. That is not possible here because
Jim Gardner, the present Dean, is protecting Makau Mutua, the former Dean.
Only one junior professor has been willing to speak out in Jim Gardner's favor, and he is a person who
will need the Interim Dean to sign his promotion papers. No tenured professor has spoken a word of
support for Jim Gardner. He betrayed the faculty by circumventing faculty governance and taking the job
from a President whose hostility to the Law School is recognized by everyone. What is most disturbing to
me is that Jim Gardner is attempting to benefit from his own wrongdoing, which should never be
tolerated. Every lawyer knows that this principle is a bedrock of legality and justice.
In spring 2016, the ABA will be considering the Law School's re-accreditation, and that Site Visit will
coincide with a trial in federal district court where every member of the tenured faculty will be testifying
under oath. This cover-up will come to an end, in full public view, at that point.
Sincerely,
Jeffrey Malkan
SUNY Buffalo Law first year enrollment
Fall 2008 - 240
Fall 2013 - 198
Fall 2014 - 143
down 59.6%
Source
http://www.newyorklawjournal.c...
SUNY Buffalo Law tuition
2008-09 $14,685 per year
2015-16 $28,400 per year
up 95%
Sources
http://www.lsatprepcourse.com/...
http://financialaid.buffalo.ed...
SUNY Buffalo Law faculty
In 2008, former-Dean Makau W. Mutua, in reckless haste, added six new junior professors to the faculty
every year for four years in a row. See http://www.law.buffalo.edu/new... ("meet the new faculty, 20082013") (last visited Feb. 26, 2015). This maneuver insulated him from the scrutiny of his peers and
protected him from another no-confidence vote. With its burdened and diminished student body, the Law
School has taken the drastic step, unprecedented by any law school, of waiving the LSAT for all SUNY
Buffalo undergraduates with a 3.5 GPA. This will have the detrimental effect (for them) of locking these
undergraduates out of scholarship opportunities at competing law schools. Interim Dean Gardner calls the
LSAT "superfluous." It would be more honest to say that a high percentage of the recently enlarged and
bloated faculty is "superfluous."
The appointment came after Mutua announced his resignation in September. Former
law school professor Jeffrey Malkan filed a lawsuit against Mutua in 2011 for
wrongfully terminating his contract. Mutuas perjury charges stem from him
testifying that a vote to promote Malkan to clinical professor never took place a
vote seven faculty members testified did happen.
Gardner said the allegations against Mutua and Mutuas resignation did not hurt the
law schools reputation.
These charges have been made by a disgruntled former employee who has thus
far lost every legal action he has mounted against individuals in the law
school,Gardner said. Its incumbent upon every official in this law school and
university to adhere to the highest standards of ethical conduct and lawyers have
their own code of ethical conduct thats even more rigorous.
Malkan said his Court of Claims litigation is still pending and his Public Employment
Relations Board case was dismissed, but that it was based on Mutuas testimony, in
which he allegedly lied under oath. Malkan plans to ask this to be decision to be
vacated when situation with Mutuas testimony is resolved.
But Malkan said he is encouraged by his federal lawsuit, which he said he expects to
go to trial in the spring of 2016 and that UBs motion to dismiss the case was
denied.
Mutua is still teaching as a SUNY distinguished professor at the law school this
semester but will be on leave for all of next year. Gardner said there is a tradition in
universities that a dean takes time off after stepping down and the university
facilitates by granting a leave.
Mutua officially stepped down on Dec. 19, 2014. Matthew Dimick, an associate
professor in the law school, said Gardner is more than competent and a great
person to have at this time when the school is facing challenges like the long and
steep decline in applications to law school. The Spectrum reached out to numerous
other law school professors, none of whom wished to speak on the record about
Gardner, the transition from Mutua or the morale within the law school.
Gardner said the law school is responding to challenging times and fewer applicants
by shrinking the size of its classes. He said the law school is starting to explore
other programs that might be of interest to people who want to become better
acquainted with the law.
Another way the law school is attracting students is through admission without the
Law School Admission Test (LSAT).
UB announced in February that students who maintain a 3.5 GPA and score in the
85th percentile of a standardized test like the SAT do not have to take the LSAT to
get into the law school. Students in the UB Honors College will automatically be
accepted into the law school.
Gardner called the LSAT superfluous.
All the LSAT is designed to do [is] to give you one indication that the student is
capable of doing their work, Gardner said. If we have other indications that the
student is capable of doing their work and will succeed and prosper, then theres no
need for the LSAT.
Gardner said he could not imagine why anyone would think worse of the law school
because of its LSAT-free admission. He said hundreds of colleges and universities
have made the SAT optional, so he sees no reason for concern.
Gardner said the law school uses the Law School Survey of Student Engagement
(LSSSE), a comprehensive survey that gets administered to law students by an
independent surveying organization. UB commissions them to do surveys and get
feedback from students. A faculty-student committee then reviews this material.
Another way Gardner said he obtains feedback from law students is by just talking
with them.
He said he has met with the executive board of the Student Bar Association to
meet and greet and hear what was on their minds. Gardner plays in a jazz band
that performed for students at their law school auction.
CJ Cook, a first-year law student, said he has never been more intimidated by a
professor.
The man was brilliant and was not afraid to shoot you down when you had the
wrong answer, said Cook, who took Gardners Civil Procedure class. But he pushed
us to be better arguers and better thinkers.
Cook said Gardner was a phenomenal professor and turned what he thought was
going to be a boring class into an interesting one.
Gardner has been working closely with the faculty as well.
Dimick said Gardner has done a lot to brainstorm and rally the faculty to come up
with ideas.
Gardner created several ADHOC committees to spearhead and probe and discuss
different possible ideas to help the law school, Dimick said.
According to Gardner, part of the law schools core commitment is to foster
inclusion and an atmosphere that is respectful to diversity. He said the law school
tries to take diversity into account in its hiring and admissions process.
Gardner said a great number of the law schools course offerings are organized
around the interests of diverse communities. The law school has courses on race,
gender and sexuality that get into the question of how the law treats those issues.
Gardner said UB law students put in nearly 29,000 hours of community engagement
and service in 2013. He said about 15,000 hours was in legal externships, which put
students into non-profit legal offices around the region, 8,300 hours of direct probono work and 5,500 hours of work in legal clinics that provide services to indigent
and underserved communities.
Gardner, who has been married to his wife for 28 years and has a 20-year-old
daughter, always knew he wanted to be a lawyer, even though he grew up in a
family of musicians and artists in the Bronx.
His great grandfather was an actor. His grandfather was a violinist and composer.
His grandmother was a concert pianist. His father was a musician and music teacher
and his brother is currently an actor in New York City.
While in law school, he volunteered at an association in Chicago called the Better
Government Organization, an organization that was trying to take on the corrupt
Chicago political machine, as Gardner put it.
He said he became a lawyer because he wanted to reform the political system.
Gardner wanted to end the inequality of influence caused by economic which he
says has only gotten worse. He also wanted to expand access to the political system
in terms of the right to vote. He said people have been complaining forever that
political discourse is nasty and shallow and filled with distortions.
It was a long time ago, but its all going to sound very familiar because not much
has happened, Gardner said.
Gardner taught as a professor in Western New England University, William and
Mary, the University of Connecticut and Florida State University before eventually
coming to UB in 2001.
He taught constitutional law for 27 years and found teaching in Buffalo different
than in other places he taught in Southern states like Florida and Virginia. Gardner
especially noticed the difference when he taught UB students about the New Deal
and federal regulations of labor relations.
With students in Buffalo, everyone has in their family a parent or an uncle or
grandparent who is a member of a large industrial union, so kids here understand
it, Gardner said. Kids in the South have no personal experience of knowing
someone who was a union member or an activist.
Gardner said there is always diversity of the student population no matter where
you are. He said UB is a little different because it is a public school so there tends
to be more socioeconomic diversity to the student body.
Gardner said the best thing about being asked to serve on an interim basis is he can
find out whether it is something he would like to do for a longer period of time.
Gardner said President Satish Tripathi, the provost and Gardner himself will decide
how long he will remain dean.
For now, Gardner said the main thing the law school wants to accomplish is to train
highly competent ethical professionals to go out and assume positions of
leadership.
Ashley Inkumsah is the assistant news editor and can be reached at
news@ubspectrum.com