CUNY administrators have sunk to new lows in their continuing quest to deny tenure to history professor KC Johnson (which would amount to firing him) and to secure their right to sink the careers of future whistleblowing faculty in the manner to which they are, apparently, accustomed.

In March, CUNY Chancellor Matthew Goldstein overturned Brooklyn College's extremely suspicious and unjustifiable decision to deny Johnson tenure for "lack of collegiality." Johnson was awarded tenure, and it looked like that would be the end of a long and harrowing tale of academic malfeasance. But the good people at BC weren't about to accept such a ruling. Last March, the BC Faculty Council re-opened Johnson's case, forming an "Integrity Committee" whose mission is to review (again) Johnson's qualifications (which are impeccable, and which were never in question) and to question the procedures by which Goldstein overturned BC's initial recommendation. The good works of this new and noble initiative are beginning to make themselves felt at the college and beyond.

For example, it is now acceptable at CUNY for top administrators to libel those junior faculty they seek to fire. Susan O'Malley, English professor at Kingsborough Community College, president of the CUNY University Faculty Senate, and ex oficio member of the Board of Trustees, published a statement on Johnson's case in the Senate Digest. Here is the text:

As the faculty member on the Board of Trustees, although without a vote, I first heard that the Board was being asked to vote on Professor Robert David Johnson's promotion and early tenure as the February 24, 2003 Board meeting was convening. A sheet of paper announcing an addendum to the University Report was placed at my seat. We were to vote on Professor Johnson's promotion to full professor effective 1/1/03 and his tenure effective 9/1/03. This action had not been presented to the Board Committee on Faculty, Staff, Administration for discussion and vote, nor had it been placed on the Board Calendar so that faculty could address it at the Board Public Hearing. The only discussion at the February Board of Trustees meeting consisted of a statement from Trustee Pesile that she had been trying to bring this matter to the Board's attention since October. However, Trustee Wiesenfeld had made known to the New York Sun his views supporting Professor Johnson.

Chancellor Goldstein recommended to the Board that it overturn the decision by the Brooklyn College faculty and the President of Brooklyn College. He said that after having received a complaint from Professor Johnson's attorney, he had given Professor Johnson's file to three professors who had distinguished records, and who had voted to promote Johnson to full professor after his having taught for three and one half years at Brooklyn College. The three professors who voted to promote Professor Johnson are Pamela Sheingorn, Professor of History at Baruch and Executive Officer of the Doctoral Program in Theater at the Graduate Center; David Reynolds, University Distinguished Professor of English at Baruch College; and Louis Masur, chair of the City College History Department.

It is not my place to judge Professor Johnson's scholarship. A historian, he has written several reputable monographs. However, although he has one other monograph in press, he has not published since his tenure clock started at Brooklyn College. He was scheduled to have another year at Brooklyn College before coming up for tenure. While I agree with the AAUP that collegiality, a reason cited in the. Johnson case, should not be the sole criterion for the denial of promotion, as I talk to Brooklyn College faculty I realize that this is an extremely complex case.

What kind of message does this give to faculty coming up for promotion? That it is better for a faculty member who anticipates any difficulty to hire a private lawyer and ask the Chancellor to form his own committee to recommend promotion and tenure? As Chair of the University Faculty Senate and as one who is concerned with governance issues, I believe that the Chancellor's action does a disservice to shared governance at CUNY. On March 25, 2003, th UFS plenary voted to support a Resolution on the Integrity of the Promotion and Tenure Process which was written in response to the Chancellor's grant of early promotion and therefore tenure to Professor Johnson. Chancellor Goldstein's action overrode the decisions of the three committees at Brooklyn College involved with the promotion and tenure process, as well as the decision of the President of Brooklyn College. The UFS resolution "calls upon the Chancellor to affirm a policy of non-interference with established campus and university governance and contractual procedures, includ™ing appeals and grievances."

Cordially,

Susan G. O'Malley

Lie #1: "The only discussion at the February Board of Trustees meeting consisted of a statement from Trustee Pesile that she had been trying to bring this matter to the Board's attention since October."

The truth: Trustees Mastro and Schmidt also spoke, at some length, expressing their strong support for the Chancellor's action. Trustee O'Malley was free to speak about her concerns regarding the meeting, but did not do so. Read the transcript of Mastro and Schmidt's comments here.

Lie #2: The Chancellor "said that after having received a complaint from Professor Johnson's attorney, he had given Professor Johnson's file to three professors who had distinguished records . . ."

The truth: The Chancellor did not act unilaterally in response to legal threats, but in consultation with a variety of CUNY administrators and advisors--as he said in the meeting O'Malley attended.

Lie #3: "as I talk to Brooklyn College faculty I realize that this is an extremely complex case."

The truth: O'Malley never spoke to Johnson, or to anyone who supported his tenure. Her inquiry can hardly be considered to be a balanced one; her "realization" that Johnson's is a "complex" case is not the conclusion of one who has sought out all the facts, but the verbiage of one who is parroting the oversimplified and self-serving position of Johnson's antagonists.

Lie # 4: The statement: " . . . was written in response to the Chancellor's grant of early promotion and therefore tenure to Professor Johnson."

The truth: There is no such thing as "early promotion" at CUNY, a fact of which O'Malley, a top official at the institution, seems disturbingly unaware. Johnson's was a standard tenure and promotion case, not an application for special consideration.

Finally, Lie #5, the biggest one of all: "However, although he has one other monograph in press, he has not published since his tenure clock started at Brooklyn College."

The truth: Johnson has published one book and seven articles or book chapters since his tenure clock started ticking. He also has two monographs in press, along with three volumes of the LBJ transcripts that will be out later this year. For the price of a simple finger click, you can peruse Johnson's publication record on his faculty home page--something O'Malley was apparently too lazy or too incompetent to do herself.

O'Malley's suggestion that the real issue with Johnson is his inadequacy as a scholar--his failure to publish a single book or article since coming to Brooklyn College in 1999--is demonstrably false and patently libelous. She has published her statement in an official CUNY publication, and has thus ensured that her damaging falsehoods will reach each and every faculty member not just at Brooklyn College, but in the entire CUNY system. Her insinuation that Johnson hired a lawyer to help him hijack a review process that would have exposed the inadequacy of his professional credentials would be laughable if it were not attached to such a dishonest and malicious agenda: if my cursory searches through academic databases are correct, Johnson has published more in his few short years at Brooklyn College than O'Malley has in her entire career (she has been at CUNY since 1974). But O'Malley's slender scholarly credentials are beside the point. What is to the point: O'Malley's observation that Johnson has hired a lawyer. My guess is that it won't be long before O'Malley makes the acquaintance of said lawyer.

Hasten the day of O'Malley's visit from said lawyer.

O'Malley admits that Johnson has "several reputable mongraphs" under his belt, with another one in press. And yet she pretends to worry about the "kind of message" this sends to "faculty coming up for promotion" and insinuates that his publication record falls short of the standard.

It would be interesting to place Johnson's CV alongside those of his "colleagues" (if that is the correct term for it) in the history department.

Well, faculty coming up for promotion should certainly be worried about the message O'Malley is sending: if your CV is noticeably more impressive than that of the senior faculty who will vote on your case, you might well find yourself rejected on the grounds of "lack of collegiality."

I agree that O'Malley's comments are at least partially uninformed, but your reaction to them is overblown. You're attributing to malice that which can be best explained by ignorance. Regrettable ignorance? Yes. Libel? No.

IA--publication envy may be a factor here, though I didn't read it that way. I think that would be a very interesting thing to write more about, if you have more information.

I've heard many anecdotes of people not being hired because faculty were intimidated by the candidate's publication record, a likely phenomenon in an era of increased professionalization.

"You're attributing to malice that which can be best explained by ignorance."

There's no way this can stem from ignorance. They will have gone through his files a hundred times with a fine-toothed comb.

If he has indeed published, then the statement that he has not published since his tenure clock started ticking does seem potentially libelous.

IA--remember it's "she," not "they," we're discussing, and while she should have read through his file carefully, that does not mean that she did.

There's no way this can realistically be considered libellous; you'd have to prove that she knew the truth and deliberately lied about something that anyone could check.

On ignorance - she's a faculty leader, and a well-established one at that. Not much reading was required to know the true state of his productivity.

On publication envy - I'd say it looks more like mediocrity protection. This woman has also been an outspoken opponent of improving standards of admission in the university system of which she's a part.

And finally - her cri de coeur (and a badly written one at that - but few English professors write well) seems to me a predictable and basically acceptable complaint about faculty autonomy having been insufficiently respected in this case. This is a perfectly legitimate and in fact important principle, and I have no problem with some after the fact fuss being made about it here.

IANAL, but I have spent some time looking into libel law, and "Infect_polo_opus" is not correctly stating the situation.

The requirement for proof of deliberate lying is the basis for what's known as "actual malice", and according to the NY Times decision (in 1964) that standard only applies when the person being defamed is a "public figure". Within the context of this discussion, I think a good case can be made that Johnson is not a public figure, and if so then it isn't necessary for him to prove "actual malice" in order to demonstrate libel. All he needs is "common law malice", which connotes ill will or spite. If someone makes demonstrably false statements with ill will or spite about someone who is not a "public figure", then it is not necessary to prove that that the lies were deliberate.

I am using quotes for "public figure" because it's a term of art in libel law and was defined in a 1974 Supreme Court decision written by Justice Powell.

Some relevant links: the definition of "actual malice" and "public figure"; a general discussion of libel law with some background on the 1964 NYTimes decision

IPO,
She is a CUNY administrator. Though without a vote, she sits on the board that is involved in this case. She has published a statement which misrepresents Johnson, she was in a position to find out the facts before publishing anything, and she clearly published this statement with the intention of damaging his prospects. I think this might meet the legal definition of libel.

IAAL, and Den Beste states the situation with more accuracy than I_P_O did; however, I will take this opportunity to clarify. Malice can indeed be inferred from ignorance in libel cases: if the person making the allegedly libelous statement knew or SHOULD HAVE KNOWN that the statement was false, that constitutes malice. Since O'Malley represents that she is familiar with Johnson's record, and states falsehoods based on her alleged familiarity with that record, it's a prima facie case of malice.

1. O'Malley isn't necessarily lying. Quite the contrary. The publications could have appeared AFTER the tenure clock started, but were the result of work done BEFORE he got there.

If he was given credit for prior service, then the "tenure clock" would be only a couple of years (I'm being deliberately vague here because decisions have to be made in sufficient time to allow due notice to be given inn case the decision is negative).

In other words, what she's saying is (to translate): "he's done some good stuff but that was before he actually got here, since then he hasn't done squat and this bothers me."

Ti is a fair objection. Universities are unfortunately full of people who crank out some decent stuff early on and then lapse into a sort of intellectual coma for the next thrty years.

Now, before you blow a collective gasket, hear this: none of the above should be construed as support of her position. I am simply explaining why, technically, she can probably get away with what she said in the letter.

If you folks think that lawyers are experts at crafting letters, I have news for you--academics are the true masters. They can smear a person without subjecting themselves to any reprisal at all. And they do.

2. Nor does the fact that his credentials are "better" than hers automatically allow an inference of professional jealousy. She may genuinely believe what she says, and she may very well have a case. But that's not the point I'm making, I'm just saying--don't go overboard here.

I do not know the precise details of Johnson's case, and have no position on his tenure. The provocative title of this article in light of its content suggests that historians should stick to writing about history, while letting the lawyers write about the law. The plaintiff (Johnson) would also need to be able to prove damages. Unless the granting of tenure is reversed, and Johnson can show that the reversal was specifically the result of O'Malley's comments, there is no "case." These postings then must be viewed as nothing more than an academic discussion, no pun intended.