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April 29, 2013


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I wonder what Professor Filler would answer if he was asked at a depositon if the secretary or janitor was his equal? If you said no, would it mean you disrespected them? It is the kind of question which probably should have been objected to, because, in one sense, all men (and women) are created equal, yada, yada.

Dan Filler

It's true that I can't say how I would have responded under the stress of a deposition. What I hope I would have said was: "We were colleagues and he didn't answer to me." I hope I would not have stated, and I am certain that I would not have interrupted the attorney to repeat, that we were not equals. And if someone asked if my secretary or janitor were my equal, I don't believe I would have answered as the dean here did. In my view, any professor or dean who needs to emphasize his or her superior status is going to have a very challenging run in academic administration.

Christine Hurt

I may be quite jaded from my 5 years teaching and directing an LRW program, but I think when we are asked if we are "equals" with our teaching colleagues, our response says a lot about us. If I was asked if an untenured person were my equal or a clinical professor or an adjunct, I would never say "we are not equals." Unless the person reported to me in some sort of supervisory capacity, I would consider us equals. Even if I was asked the question of someone who I did supervise, I would hope I would not answer "we are not equals." The question seems to refer to the fact that Prof. Malkin did not report to then Prof. Mutua, so responding to Prof. Mutua's request was out of professional courtesy and collegiality, not because Prof. Mutua supervised Prof. Malkin.

Terrill Pollman

Of course they are both faculty and regardless of Prof. Mutua's ridiculous comments, they are equals. But even the post assumes that the question in legal writing is the status equality of contract and tenured faculty. It ignores the fact that many legal writing faculty are tenured or tenure track. One has to wonder if Prof. Mutua would find a tenured professor who teaches legal writing is his "equal."


This post seems quite silly with an air of unmitigated superiority. It strikes me as equally problematic to proclaim equality when it is not true -- and in some programs, I gather at Buffalo, LRW professors are not on equal footing with tenure track professors. I know at least one school that was able to modify some of the discrepency among positions by emphasizing the unequal status. Perhaps his deposition answer could have been more artful but this post seems worse to me, particularly when the comment regarding Dean Mutua's repeating his answer is included, which is not only disrespectful but suggests a serious lack of familiarity with deposition transcripts.

Jeffrey Harrison

Equal means the same, right. They are not the same. That, however, does not create a ranking. The answer to the question is "We are not equal because we have different duties and different roles to play in the law school." Yes, the answer is unfortunate but I am not sure what posting it is supposed to suggest.

Jeffrey Malkan

Just to clarify, at the time Dean Mutua gave this testimony in state court (no, it wasn't a deposition) I was a full clinical professor, promoted on recommendation of the P&T Committee, and a member of the voting faculty (subsequent to the 2007 update of the Faculty Bylaws to comply with ABA Standard 405(c)). So, whatever one thinks about hierarchy in legal education, the question here shouldn't be whether Makau Mutua and I were "equals" in some mathematical sense, like A=B, but whether this was an appropriate comment for a dean to make about a faculty colleague. Like most universities, SUNY Buffalo has a faculty code of conduct that states the institution's commitment "to the highest standards of civility, decency, and mutual respect for all, and to promoting an atmosphere free of abusive, demeaning, or unfair treatment." I would say that Dean Mutua's comment was intended to be abusive and demeaning. Everyone in the courtroom was shocked when he blurted it out. Yes, we don't all do the same job in the law school, but no, that doesn't mean that we aren't engaged in a common enterprise, that we aren't members of the same profession, and that we aren't obliged to treat all of our colleagues with civility and respect rather than calibrate our behavior to their status and rank. That's what I think the posting was supposed to suggest.


Jeffrey - I know nothing about the larger issues in your case. However, I looked at the longer excerpt of the testimony on your website, and the questions and answers both before and after make clear they were talking about your status in 2005, not about your later status at the time of the testimony. So I think your comment is a bit misleading.


I don't want to defend Dean Mutua's actions; the firing sounds appalling. And frankly I know next to nothing about this situation other than an article or 2 I've read. That said, I have taught LRW for almost 15 years, at both 'elite' and lower tier schools, and I think the Dean's attitude is, sadly, still all too common. He expresses it more baldly than most, but even in institutions where some writing faculty are tenure track, the second-class citizen aura isn't completely banished. Obviously, I cannot speak for all institutions. Mutua's comments express a deeply ingrained attitude in law, and frankly throughout academia: the theory/practice split. LRW folks shouldn't become too complacent about status, even as LRW faculty gain some measure of institutional 'equality.'

Jeffrey Malkan

I know this is a case-specific point that may seem trivial (except to me, of course), but in 2005 I had the university title/rank of Clinical Associate Professor; in 2006 I received a promotion to full Clinical Professor. Dean Mutua's defense is based in part on his claim that I was "out of category," that is, not really a clinical professor but an LRW instructor because I did not have a teaching assignment in a clinic. In other words, in his own mind, he thought he had the authority to nullify my letter of appointment from the President and demote me in rank from clinical professor to LRW instructor (which would, in effect, void my due process rights under the Faculty Bylaws). I don't know whether my "demotion" in his mind makes any difference to our discussion; whatever Dean Mutua subjectively thinks about clinical professors or LRW instructors, he doesn't have to respect them, nor do I have to respect, well, Dean Mutua -- civility and the appearance of respect will suffice. Often civility consists in keeping one's thoughts and opinions to oneself and not saying what one really thinks.


I have to say that this seems like a very poor place to litigate a claim, it seems that it might be time to take this post down, which I noted earlier, struck me as inappropriate in the first place.

Eric Muller

There's an interesting conflation of "respect" and "identical treatment" going on in this post and comment thread. I respect lots and lots of people in my life but don't believe that requires me to treat them all the same, or to treat them all as equal to me in every way. Similarly, I have been differentially treated by others (not included in meetings, not invited to dinners or parties, not given co-billing or co-authorship on projects, and on and on) and not understood that differential treatment as a subjective expression of disrespect.

(I offer this not as a comment on this litigation, about which I know no more than what I've read here. I am certain that there is a much larger context here, both about the litigated issues and about a broader culture of respect or disrespect at Buffalo, that this little deposition excerpt doesn't purport to capture.)

Eric Muller

(And naturally, there have been times where I have been differentially treated by others and understood it as an expression of disrespect. My point is simply to say that "respect" and "identical treatment" are different things.)

Paul Horwitz

Eric and Jeffrey Harrison's comments seem right to me, with respect. It strikes me that a number of issues may be conflated here. 1) The extent to which what might, from other lips, come off as no more than an awkward moment in a deposition, is somehow emblematic of Dean Mutua's dealings with others. I obviously have no views on that. 2) The extent to which such a remark, although it might be seen as harmless taken out of context, should be read in the context of a larger discontent about how LRW and/or clinical professors are treated. Again I have no strong view (and I too have taught a legal writing section). But even if either of the concerns raised in (1) or (2) are justified, I would still be reluctant to read too much into an exchange in a deposition. Spoken conversation is clumsy, never more so than when it is rendered in cold print. 3) The conflation of "respect" and "identical treatment" that Eric discusses. Clarifying that someone is not one's equal, where that is actually true as a matter of status or responsibility, is not disrespectful, although of course it can be said in a more or less disrespectful fashion. I can't speak for Buffalo, but at most law schools LRW instructors do not have equal status to faculty, clinical or scholarly.

It would be odd, and more or less assume the question at issue, to make an argument that runs along these lines: LRW teachers deserve equal status with other professors; in response to my assertion of equality, you told me I was not your equal; that's disrespectful; and that proves that we ought to be given equal status. And yet that's almost the sense I'm getting here. I take it, at least, that everyone agrees that whether or not Dean Mutua or anyone else acted or acts disrespectfully toward LRW instructors, who ought to be a valued part of any law school, says absolutely nothing about what their contract status ought to be as a matter of policy.

Jeffrey Malkan

My lawyer (actually, the UUP's lawyer) put the words "colleagues" and "equals" together in the same sentence (clipped off in this excerpt) and Dean Mutua objected that we were not equals. In the context, I believe he also meant that we were not colleagues -- that people of my rank and status are not members of the faculty, no matter what our contracts and the ABA rules say, but rather employees of the faculty. So even though then-Professor Mutua was not my supervisor, he could order me to write a report and, when I complied and submitted the report, it wasn't a gesture of collegiality and engagement, but rather a subordinate fulfilling an order that he had no option to refuse. The consequence is that clinical and legal writing faculty should be at-will employees, rather than faculty members with job security sufficient to protect their academic freedom. If that was the deal I'd signed-up for when I accepted my appointment, I would have understood and maybe agreed with his underlying point, although I would still have been offended by his incivility in saying it. There's never any need to tell people who work for you that, don't forget, we're not equals.

Paul Horwitz

I appreciate Jeffrey's additional comment and, to be clear, I am not speaking about his case or Buffalo more generally.


Let me get this straight: the dean said that a professor was not his equal. What's the problem? Is every law professor a dean? I assume that a dean of a law school has some authority that a law professor, tenured or not, doesn't have.

really confused

I retract my prior comment after rereading the post.

Jeffrey Malkan

I just wanted to say three more things. (1) I don't have any problem with anyone thinking that they are better than another person (i.e., not "equal"). I think a human being in our society would be lacking in normal self-esteem if he or she didn't measure him- or herself against others every day of their lives (although the criteria of what we think is important, of course, may vastly differ). (2) I don't like to use business school jargon, but I'm afraid that many law school administrators are lacking in what business types call "emotional intelligence," that is, the ability to tell the difference between when they are acting in the best interests of the organization as opposed to their own obsessions and concerns. (3) I appreciate the thoughtful and intelligent comments I received from those who posted on this thread. I really miss that.


This is interesting. I know nothing about the issue other than what I read here. But it seems that the equality question arose in a particular context, namely, one person asking another to account for their work and program. If this lawsuit were about bullying or harassment, it would be obvious that a tenured professor who has a formal voice in the operation of the school is not "equal" to anyone without a vote or job security. If there were some question about the direction of, say, the library, and a senior faculty member asked an untenured library director about their views, there would be a power inequality, because if the librarian ignored the faculty member and refused to provide information, the librarian (or the policy the librarian wanted) could suffer, but not vice versa.

And this is not necessarily wrong. Of course, no one should make unreasonable demands on colleagues. But at many schools including mine the voting, tenure-track and tenured faculty shares in the governance of the institution in a way that other faculty colleagues do not. For the voters to decline to be informed about the institution, to decline to make hard choices, or to refuse to use their security to confront administrators who makes questionable decisions would be to abandon the institution of which they are fiduciaries. Put another way, if the faculty was voting on an issue, and the proponents of that issue failed to comply with reasonable requests for information, I could well imagine voting no. This inequality is wholly apart, of course, from the questions of whether anyone currently disenfranchised should have a vote, who is the better teacher, scholar or lawyer, or who makes a more important contribution to the institution.

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