Ollman v. Toll

Bertell Oilman, the plaintiff in this civil action, is a Marxist. He has here sued various representatives of the University of Maryland under 42 U.S.C. § 1983, 1 claiming that in 1978 he was rejected for the position of Professor and Chairman of the Department of Government and Politics at the College Park campus of the University because of his political beliefs and associations. Named as defendants are John S. Toll, President of the University of Maryland, Wilson H. Elkins, the past President of the University, and the University’s Board of Regents. As relief, plaintiff seeks an injunction which would require the University to appoint him as Professor and Chairman of the Department in question, back pay, compensatory and punitive damages, attorneys’ fees and other relief.

In opposing the plaintiff’s claims for relief, the defendants assert that plaintiff’s political beliefs were not a substantial or motivating factor in the decision of the President of the University not to appoint him as Chairman of one of its major departments and as a Professor with tenure. Defendants further contend that if plaintiff’s Marxism were found to be a substantial factor in President Toll’s rejection of defendant for the position, the President would have reached the same decision as to plaintiff’s employment at the University even in the absence of plaintiff’s political beliefs. It is further contended that defendants Elkins and the Board of Regents were not responsible for any violation of plaintiff’s constitutional rights because the ultimate decision was made by President Toll on July 20, 1978 and not by the other named defendants.

Pretrial proceedings in this case have been extensive. Following several pretrial conferences and the entry of a Pretrial Order with supplements, the case came on for trial before the Court sitting without a jury. The trial record is a massive one. Extensive testimony was heard during the four-week trial and over 300 exhibits were entered into evidence. Much of the testimony was conflicting, and in deciding the issues of fact, due regard has been had by the Court to the credibility of the witnesses and the weight their testimony deserves. Findings of fact and conclusions of law, pursuant to Rule 52(a), F.R.Civ.P., are contained in this opinion, whether- or not expressly so stated.

*1199 I

The background facts

The University of Maryland is a large, public institution, with branches in various parts of the State and even overseas. At any one time, there are approximately 50,-000 students at the College Park campus of the University. The total faculty numbers some 4,000 persons, with some 2500 faculty members located at College Park.

The Department of Government and Politics at the College Park campus is one of the larger departments of the University. 2 In September 1977, Professor Davis P. Bobrow, who had come to Maryland in 1974, resigned as Chairman of the Department. In accordance with University procedures, a Search Committee was appointed to locate a successor for this important position.

After considering a list of approximately 100 persons during the final three months of 1977, the Search Committee by early January of 1978 had not come up with a likely candidate to recommend for the position. Dr. Bertell Oilman, the plaintiff, was at the time an Associate Professor of the Department of Politics at New York University (hereinafter “N.Y.U.”). 3 His name was not on the original lengthy list which the Search Committee had considered. However, in early January, three members of the Committee suggested plaintiff’s name for the position, and the Committee ultimately recommended him and one other candidate for the position. The other candidate was Dr. Robert T. Holt, who is a Professor of the Department of Political Science at the University of Minnesota and presently Chairman of that Department. Both Dr. Holt and Dr. Oilman came to the College Park campus on several occasions and were interviewed.

Under University procedures, a Search Committee is required to report its recommendations for filling a position of this sort to the Provost of the particular Division of the faculty. The Department of Government and Politics was within the Division of Behavioral and Social Sciences, and the Provost was Dr. Murray Lee Polakoff, who, in February 1978, had been with the University for some seven months. Following receipt of the Search Committee’s recommendation, the Provost was in turn required to make his recommendation to the Chancellor for Academic Affairs, in this instance, Dr. Robert L. Gluckstern. Dr. Gluckstern in turn would forward his recommendation for the position to the President of the University. Under the By-laws of the Board of Regents, it was the President who had the final authority to appoint a person Chairman of a Department. However, it was the practice that all recommendations for faculty appointments to be made by the President would first come to the Vice President of Academic Affairs for review. In the spring of 1978, Dr. R. Lee Hornbake had occupied this post for some eighteen years. He regularly reviewed recommendations of this sort from the Chancellor, and in turn, made recommendations to the President before final action was taken.

In the spring of 1978, Dr. Wilson H. Elkins had been President of the University of Maryland for some twenty-four years. He had previously announced his retirement effective June 30,1978, and Dr. John S. Toll had been selected to replace him as President, commencing on July 1, 1978. Dr. Toll had been President of the State University of New York at Stony Brook, New York, for some thirteen years. During the spring of 1978, he was finishing up his term at the Stony Brook campus and was, of course, not then responsible for affairs of the University of Maryland.

Acting with some urgency between early January and late February, 1978, the Search Committee for the Department of Government and Politics recommended both Dr. Holt and Dr. Oilman for appointment as Chairman of the Department. In a meeting with Provost Polakoff, the same mem *1200 bers of the Committee who had initially suggested plaintiff’s name urged that he be selected for the position. The Provost agreed and, after reviewing the matter with the Chancellor and receiving his concurrence, telephoned plaintiff on March 3, 1978 and offered the post to him, provided that the President approved the appointment. When he had originally reviewed the qualifications of the candidates, Chancellor Gluckstern had rated Dr. Holt over Dr. Oilman, but he was later persuaded by the Provost that the position should be offered to Dr. Oilman.

More than six weeks then elapsed before Chancellor Gluckstern forwarded his recommendation to Dr. Hornbake and Dr. Elkins. Various steps were taken during that period to have the files on the recommended appointment put in proper form for submission to the President. Meanwhile, on April 18, 1978, an article appeared in The Diamondbaek, the campus newspaper, reporting that plaintiff, a Marxist, was being recommended for appointment as Chairman of the Department of Government and Politics. This first press report led in the following weeks to a veritable storm of publicity relating to the appointment. Articles appeared in Baltimore and Washington newspapers as well as in The Diamondback, discussing the fact that a Marxist was being considered for this important position. The publicity evoked considerable comment by both public officials and private citizens, and the Oilman matter quite rapidly became a cause célebre. The Governor, legislators, alumni, members of the faculty, members of the Board of Regents and private citizens raised questions concerning the propriety of the proposed appointment. Members of the faculty and other supporters of plaintiff viewed the Oilman affair as a question of academic freedom and urged President Elkins to promptly appoint plaintiff to the position in question. Suit was threatened if the appointment was not made at once. Some of those who opposed the appointment based their objections on plaintiff’s qualifications to be Chairman of this important department at the University. Others took the flat position that a Marxist should not occupy the post.

When the formal papers eventually reached Dr. Hornbake and were reviewed by him, he was disturbed by certain irregularities which he concluded had occurred in the search procedures. The more he looked into the matter, the more concerns he had. After further study of the file and discussions with various faculty members, Dr. Hornbake eventually recommended to President Elkins that plaintiff not be appointed. Meanwhile, the publicity and controversy over the appointment continued. Since late April, President Elkins had been aware that if the appointment was rejected by him, a suit in federal court would be filed against him by Dr. Oilman.

By this time it was late May of 1978, a very busy time of the year for a University President. To complicate matters even further, President Elkins was scheduled to retire effective June 30. Fearing that if he went along with the recommendation of Dr. Hornbake he would be involved in lengthy litigation which would come to trial after his retirement, President Elkins decided to seek the help of the Board of Regents. At a meeting of the Board of Regents on June 16, 1978, he stated that he was bringing the matter to the Board because of unusual circumstances surrounding the appointment. Dr. Elkins informed the Board that he was not inclined to support the appointment but that he was asking the Board itself to make the final decision. After some discussion, the Board concluded that it did not have sufficient information on the matter at that time. The Board decided to meet with counsel, secure counsel’s advice and then decide on its further course of action. Before the Board would legally have been able to act on the appointment, it would have been necessary to change its By-laws, which provided that only the President had the authority to approve or disapprove an appointment' of this sort. Between June 16 and June 30,1978, which was the last day that President Elkins was in office, the Board had the matter under study, receiving advice from an Assistant Attorney General of the State. At a meet *1201 ing of the Board held on June 21, the Board formally requested President Elkins to give the Board a written report on the matter before he left office. It was decided that upon receipt of this report, the Board would then consider what further action it should take.

President Elkins left office without having acted on the appointment. On June 30, as requested, he submitted to the Board his written report, together with pertinent materials from Chancellor Gluekstern, Provost Polakoff and the Search Committee. On July 1, 1978, defendant Toll assumed his new duties as President of the university and was confronted immediately with the Oilman matter. After considering the posture of the appointment at that time, he decided that he alone should make the final decision. He so advised the Board, which concurred in that decision since it was in keeping with the existing By-laws. At a later meeting held on July 18, the Board formally reaffirmed the President’s authority to act on the Oilman appointment.

After discussing the matter with Dr. Hornbake and reviewing all documents in University files, President Toll decided that he would not rely merely on information in the files but would himself make an independent investigation of the qualifications of the plaintiff to be Chairman of the Department of Government and Politics. He held an open meeting with members of the Department on July 11, 1978, soliciting their views. 4 Various Professors and other faculty members presented their comments both pro and con concerning the appointment of plaintiff to this position. Most favored the appointment but one-third of those present opposed it, including two former Chairmen of the Department and the Acting Chairman. On his own, President Toll had prepared a list of political science experts and others for consultation, and in early July, President Toll personally communicated with these individuals. Most of the persons on this so-called “referee list” were political scientists, and many were persons known and respected by President Toll. Some of the comments were favorable to Dr. Oilman but most were unfavorable.

Finally, on July 20, 1978, President Toll announced his decision. In a prepared statement, he said that after appropriate consultation and review, he had decided not to approve the appointment of plaintiff for the position of Professor and Chairman of the Department of Government and Politics at the University of Maryland at College Park. President Toll stated that his decision had been based on his own evaluation of whether or not the proposed candidate was the best qualified person for the position. His decision was announced at a special meeting of the Board of Regents held on the morning of July 20, 1978.

On August 1, 1978, this civil action was filed. Plaintiff contends that defendant Toll’s stated reason for disapproving the appointment was a mere pretext and that defendant Toll was actually motivated to reject plaintiff because of his Marxist beliefs. With reference to his claim against President Elkins, plaintiff asserts that this defendant refused to decide whether or not to confirm plaintiff’s appointment, because of plaintiff’s Marxism, and that such refusal amounted to a violation of plaintiff’s rights under § 1983. As to the Board of Regents, it is also contended that this defendant refused to take action to confirm plaintiff’s appointment because of legally impermissible reasons.

II

The applicable legal principles

It is well established that a state university may not refuse to employ a prospective member of its faculty if the decision is made by reason of the exercise by the applicant of constitutionally protected First Amendment rights. Cherry v. Burnett, 444 F.Supp. 324 (D.Md.1977); see Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Marxist or Communist beliefs, like other political beliefs, are protected under the First and *1202 Fourteenth Amendments, and such beliefs or one’s association with others holding them is protected activity for which a state may not impose civil disabilities such as exclusion from employment by a state university. Cooper v. Ross, 472 F.Supp. 802 (E.D.Ark.1979).

In Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), the Supreme Court dis cussed the principles applicable in a suit brought under § 1983 by a teacher seeking reinstatement by a state educational institution. The burden in a case of this sort is initially placed upon the plaintiff to prove that his beliefs were constitutionally protected and that such beliefs were a substantial or motivating factor in the decision of the state institution not to hire him. Id. at 287, 97 S.Ct. at 576. Once the plaintiff in a case like this one has carried his initial burden, the Court must go on to determine whether the defendants have shown by a preponderance of the evidence that they would have reached the same decision as to the plaintiff’s employment even in the absence of the protected beliefs. Id. at 287, 97 S.Ct. at 376; Givhan v. Western Line Consolidated School District, 439 U.S. 410, 416, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979); Cherry v. Burnett, supra at 326.

It is equally well established that, in a case of this sort, the fact finder must bear in mind that it is not the function of a federal court to second guess the decision of an official of a state university on matters within his discretion which do not rise to the level of a constitutional deprivation. Shaw v. Board of Trustees of Frederick Community College, 549 F.2d 929, 932 (4th Cir. 1976); Cherry v. Burnett, supra at 332. No reason at all need be given for the refusal of a state university to hire a member of the faculty, and in fact, the state institution need have no reason at all so long as the decision is not based on a constitutionally impermissible reason. Franklin v. Atkins, 562 F.2d 1188, 1190 (10th Cir. 1977). A federal court should not set aside the decision of a school administrator which the court may view as lacking in wisdom or compassion or because of mistake. Cherry v. Burnett, supra at 332. As the Supreme Court emphasized in Mt. Healthy, an applicant for a position at a public institution does not have the right to prevent his prospective employer from assessing his record and reaching a decision not to employ on the basis of that record merely because he has beliefs or associations which are constitutionally protected. 429 U.S. at 286, 97 S.Ct. at 575.

In this case, the Court is called upon first to determine whether the plaintiff has satisfied his initial burden of proving that his beliefs were constitutionally protected and that these beliefs were a substantial or motivating factor in the decision of one or more of the defendants not to hire him as Professor and Chairman of the Department of Government and Politics at the University of Maryland. Secondly, if plaintiff has satisfied his initial burden, the Court must determine whether the defendants have shown by a preponderance of the evidence that they would have made the same decision even in the absence of the constitutionally protected beliefs of the plaintiff. Thirdly, and related to each of these questions, is whether the reasons given by one or more of the defendants for refusing to hire the plaintiff were pretextual.

Ill

The claim against defendant Toll (a) Plaintiff’s burden

Quite clearly, plaintiff has satisfied the first part of the burden placed upon him in a case of this sort. Dr. Oilman was a Marxist and was known for professing those political beliefs. Whether or not plaintiff’s Marxist beliefs are popular ones and whether or not they have the approval of other citizens of this country, they are entitled to the full protection of the First Amendment. No more direct assault on academic freedom can be imagined than for school authorities to refuse to hire a teacher because of his or her political, philosophical or ideological beliefs. See Board of Regents v. Roth, 408 U.S. 564, 581, 92 S.Ct. *1203 2701, 2711, 33 L.Ed.2d 548 (1972) (Mr. Justice Douglas dissenting). Thus, an official of a state university may not restrict speech or association, even by the subtle or indirect coercion of refusal to hire, simply because that official finds the views expressed by any group or individual to be abhorrent. See Healy v. James, 408 U.S. 169, 187-88, 92 S.Ct. 2338, 2349, 33 L.Ed.2d 266 (1972); Franklin v. Atkins, 409 F.Supp. 439, 445 (D.Colo.1976), aff'd, 562 F.2d 1188 (10th Cir. 1977).

The second portion of plaintiff’s burden is a much more difficult one. 5 Plaintiff must go beyond proving that his Marxism was a factor in his rejection. To be entitled to the relief he seeks, plaintiff in this case has the burden of showing that his beliefs or associations were a substantial or motivating factor in the decision of one or more of the defendants that he would not be hired at the University of Maryland. It is this issue to which the great bulk of the evidence in this case has been directed.

Although plaintiff has contended that President Elkins and the Board of Regents played a part in rejecting him for employment at the University, it is abundantly clear that President Toll and only President Toll made the final decision which is being challenged. Moreover, under the By-laws of the Board of Regents, only President Toll was legally authorized to make the decision after July 1, 1978, and no decision either way was made before that date. Therefore, it is the reasons given by President Toll for acting as he did which must be examined critically and in detail before the Court can determine whether plaintiff has met his burden of proving that his Marxism was a substantial or motivating factor in his rejection.

(b) President Toll’s review of the matter

Most of the voluminous evidence in the case related to events that occurred before President Toll assumed his duties at the University on July 1, 1978. These facts are of course relevant, because many of the events occurring in the first six months of 1978 were later brought to the attention of President Toll when he assumed office on July 1,1978 and reviewed extensive University files relating to the matter. But, much more significant are the critical events that occurred between July 1, when President Toll took office, and July 20, when he announced that he would not appoint plaintiff to the position in question. A detailed examination of these events in particular is necessary for this Court to determine whether plaintiff has met his burden in this case.

President Toll had first heard of the Oilman matter while he was still at Stony Brook. A letter dated March 23, 1978 and marked “PERSONAL AND CONFIDENTIAL” was addressed to and received by him. Although unsigned, the letter was written on stationery of the University of Maryland’s Department of Government and Politics, and purported to be submitted on behalf of a group of faculty of the Department. Attached to the letter was the Curriculum Vitae of the plaintiff. This letter informed defendant Toll that there was a vacancy in the Department and that certain persons were trying to bring in the plaintiff and have his appointment confirmed before defendant arrived on the scene. It was suggested in the letter that the appointment might slip through in the shuffle during the change of presidency and be made irrevocable before defendant Toll took office. 6

In a confidential memorandum dated April 5, 1978, defendant Toll forwarded the letter on to Chancellor Gluckstern. In this memorandum, defendant Toll said the following:

“If the statement by these faculty members is correct, and a new Depart *1204 ment Chairman is being selected without giving the tenured faculty of the Department a chance to vote, then there would appear to be a lapse in proper procedure. I have no further information than the information given in this letter, and I am therefore forwarding it to you to act on in accordance with your own judgment and discretion.”

By letter dated April 20, 1978, Chancellor Gluckstern replied to Dr. Toll, noting that Dr. Oilman was a Marxist scholar and further stating:

“Ever since it became evident that Dr. Oilman was a leading candidate for the appointment there has been agitation by an unidentified minority of the Government and Politics faculty. Their displeasure is manifest not only in the letter you have received but also in approaches to administrative officers at College Park, to President Elkins and members of the Board of Regents, through private citizens to the Governor’s office, and to the press.

“I expect to forward to President Elkins within the next week my recommendation for the appointment of Dr. Oilman. For your information, I am enclosing herewith copies of some correspondence dealing with the search procedure. I believe that these letters respond to most of the erroneous charges contained in the anonymous letter.”

After receiving that letter, Dr. Toll had little contact with the Oilman matter until he came to Maryland to assume the office of President. Indeed, he believed that President Elkins would have made the decision by the time that he (Toll) assumed office. Moreover, defendant Toll had told the Chairman of the Board of Regents that he would fully support any decision on the matter made by President Elkins.

Although Dr. Toll’s term of office did not commence until July 1, 1978, he arrived at the University on June 30 and met with the Vice Presidents that Friday afternoon so that he might have a “running start.” That meeting was mainly concerned with various other matters, but procedural aspects of the Oilman appointment were also discussed. By that time, President Toll had learned that the decision in the Oilman appointment had not been made by retiring President Elkins but that the matter was under discussion by the Board of Regents. Before deciding what should be done, the Board had requested President Elkins to prepare a full written report for the Board’s consideration. That report, with voluminous attachments, was submitted to the Board on June 30, the last day that Dr. Elkins held office. A copy of the report was given to defendant Toll when he arrived on the campus that afternoon.

Defendant Toll knew that the By-laws of the University provided that the President should make the final decision on appointments of chairmen of departments. Reflecting on the matter, he decided that it would be a mistake to alter that authority and begin his administration with a diminution in the responsibility of the President. In that Friday afternoon meeting, defendant Toll told the Vice Presidents of the University that he would ask the Board to reaffirm the authority of the President to make the decision on the Oilman appointment. None of the Vice Presidents objected to the incoming President’s views concerning this subject. Dr. Toll’s authority to make the decision pursuant to the By-laws was later formally reaffirmed at the Board meeting held on July 18, 1978.

After assuming office on Saturday, July 1, and dealing with various University matters that day, 7 President Toll flew back to his summer home on Long Island that night. He took with him the thick packet of materials prepared by President Elkins for the Board relating to the Oilman mat *1205 ter. 8 In the report he had prepared for the Board of Regents, President Elkins described in detail the steps he had taken in connection with the Oilman matter since he had first been officially advised by Chancellor Gluckstern that the recommendation would be forthcoming. Following his review of materials received from the Chancellor, President Elkins had concluded that the procedures followed in arriving at a decision to offer plaintiff the position lacked credibility. It was his opinion that Dr. Oilman’s academic accomplishments would not bring academic stature to the Department of Government and Politics, that Dr. Oilman lacked administrative experience necessary for directing a large department such as this one, and that Dr. Oilman’s lack of diversification in the field of political science was not conducive to effective leadership in a department which was marked with dissension and the absence of intellectual harmony. For these reasons, President Elkins had concluded that plaintiff’s qualifications to be Chairman of the Department were not sufficiently strong to justify his appointment. He so stated in his report to the Board of Regents, which was included in the papers turned over to President Toll.

Over the long Fourth of July weekend following assumption of his new duties, President Toll for the first time reviewed in detail all documents in the file pertaining to the recommended appointment. At the outset, he was struck by apparent irregularities in the search procedures. An offer 9 to plaintiff had been made before the search process had been completed. One of the promising candidates, Dr. Charles F. Cnudde, who was Chairman of the Department of Politics at Michigan State University, was actually visiting the Maryland campus after a decision had been made to offer the position to plaintiff.

In particular, President Toll noted a misleading statement contained in Dr. Polakoff’s letter of April 7, 1978 to Chancellor Gluckstern, recommending Dr. Oilman for the position. That letter indicated that by January 1978, the list of candidates for the position had been reduced from over one hundred names to five, that these five candidates were then invited to the University for interviews, that the two highest candidates (who were Oilman and Holt) were then invited to return for further discussions and that from this “thorough” search process, Dr. Oilman evolved as the leading candidate. Since Dr. Cnudde came to the campus in early March after a decision had been reached to make an offer to plaintiff, Dr. Polakoff’s statement concerning the thoroughness of the search process raised questions in President Toll’s mind.

In the course of President Toll’s further review of these materials, other concerns arose. The Search Committee had been given a specific charge which outlined the qualifications for individuals to be recommended for the position in question. In its entirety, the charge was as follows:

“CHARGE TO GOVERNMENT AND POLITICS SEARCH COMMITTEE

“A nationwide search for the Chair of Government and Politics at the University of Maryland. Suggested qualifications: Outstanding scholarly reputation, highly energetic, capable administrator, interested in interdisciplinary and applied programs and research. Experienced in obtaining research grants.”

Professor Toll concluded that this was a reasonable statement of the necessary qualifications of candidates for the position, and used the charge itself in judging the qualifi *1206 cations of plaintiff. Included in the file before him were letters to Chancellor Gluckstern from Dr. Martin C. McGuire, Chairman of the Search Committee, recommending both Professor Robert T. Holt and plaintiff for the position. Dr. McGuire’s letter of February 21, 1978, which attached a copy of Professor Holt’s Curriculum Vitae (hereinafter “C.V.”), stated that Professor Holt had been “enthusiastically” endorsed by the Search Committee as a candidate for Chairman of the Department of Government and Politics. Dr. McGuire stated that Professor Holt had “a superb record as a scholar,” “a proven track record as an administrator” and that he would “be most adept” at bringing research grant money into the Department. Dr. McGuire’s shorter letter of February 24, 1978, which attached a copy of plaintiff’s C.V., stated that plaintiff had been “warmly” endorsed by the Committee as a candidate for the position. Although stating that plaintiff was “a world renowned student of Marx” who had “captured the imagination” of the Search Committee, Dr. McGuire made no mention of any administrative experience of plaintiff nor of any experience he had in obtaining research grants.

When he read these letters and the attached C.V.’s, President Toll concluded that Holt appeared to be a much stronger candidate than Oilman. 10 He wondered why an offer had not been made to Holt. Dr. Holt had been promoted in 1964 to a full professorship in the Department of Political Science at the University of Minnesota, which, according to Dr. McGuire’s letter, was one of the top six political science departments in the nation. 11 Unlike plaintiff, Holt had been on the original list of 100 names that had been compiled by the Search Committee. Holt’s C.V. indicated that he was a top flight scholar, that he had published extensively in recognized journals and that he had considerable administrative experience. 12 Furthermore, Holt had experience in research development. President Toll felt that it was important for the University of Maryland to have as Chairman of the Department of Government and Politics an individual who would know how to obtain research grants and develop graduate research programs. Since the Department at Maryland was a large one and since the University occupied a unique location so close to the seat of the national government in Washington, D. C., President Toll believed that one of the important missions of the Department was to develop strong graduate research programs. 13

President Toll also noted that Professor Holt had, between 1976 and 1978, been a member of the Council of American Political Science Association (APSA), the leading professional association for political scientists in the nation. In President Toll’s mind, election to such a position was a recognition of national achievement by a professor’s colleagues and particularly by those interested in research in political science. 14 Recognizing that Professor Holt was a leading candidate for the position, the Search Committee had speeded up its procedures since Holt had to know before mid-March whether the offer would be made to him. Although the deadline was that of Holt, the Committee, in acting with *1207 urgency, had recommended Oilman to the Provost.

During his long weekend review of these files, President Toll also studied plaintiff’s C.V. and other materials submitted in support of the Chancellor’s recommendation of plaintiff for the appointment. Unlike the other leading candidates, plaintiff was not at the time a full Professor but merely an Associate Professor at N.Y.U. President Toll noted that plaintiff’s principal contribution as a scholar was his book entitled Alienation: Marx’s Conception of Man in Capitalist Society, published in 1971. This was recognized as plaintiff’s major work, but it was apparently based in substantial part on his 1967 doctoral dissertation. 15 Information contained in the files before him did not indicate to President Toll that plaintiff possessed the administrative experience to be Chairman of a large Department such as this one. Many of the letters of recommendation contained statements to the effect that the author of the letter had little knowledge of plaintiff’s experience in this regard.

Although his impressions of plaintiff’s qualifications for the position and of those of other candidates were merely tentative ones, President Toll concluded, before returning, to the Maryland campus on July 5, that it would be necessary for him to investigate the matter further. He recognized that both the Provost and the Chancellor had recommended the appointment. But President Toll had serious doubts whether his approval of the Chancellor’s recommendation would result in the best appointment that could reasonably be made, and he had enough concerns that he felt he should check further. He decided to secure additional expert opinions on plaintiff’s qualifications, both from within the University and from outside. He also decided that he himself would read plaintiff’s publications and use the knowledge gained thereby as background for his discussions with the experts with whom he would consult.

President Toll’s approach to this appointment was consistent with the practice he had followed in making appointments at Stony Brook as to which he had had concerns. 16 On those occasions, he had solicited views from knowledgeable persons outside the University. Moreover, he himself had often been called by representatives of other universities and asked for his appraisal of the qualifications of candidates who had applied for positions at such institutions.

On Thursday, July 6, 1978, President Toll went to St. Louis to attend a meeting called by the Association of American Universities. While there, he continued his investigation of plaintiff’s qualifications. President Toll telephoned or spoke in person to five different individuals about plaintiff before he left St. Louis on Saturday, July 8. Most of the comments he received were unfavorable.

One of the significant evaluations obtained by President Toll in St. Louis was that given him by Professor John Wahlke. Dr. Wahlke was a political scientist with a national reputation and was President of the American Political Science Association at the time he was called by defendant Toll. 17 President Toll was personally acquainted with Dr. Wahlke, who had previously been a Professor of Political Science at Stony Brook and whose advice had previously been solicited by Toll concerning appointments of political scientists at that New York institution. Dr. Wahlke, who was then at the University of Iowa, told Presi *1208 dent Toll that he knew of plaintiff and his writings in general, that he had not read all of plaintiff’s works but that he had read a few things which were “fairly polemical.” Terming the recommendation of plaintiff for the position in question “a mystifying choice,” Dr. Wahlke told President Toll that plaintiff was not a nationally known scholar of real stature and that he did not believe that plaintiff would even be considered for a full professorship in his department at Iowa. In his testimony at the trial, Dr. Wahlke corroborated President Toll’s version of this telephone conversation.

Also of significance to President Toll were the comments of Dr. William Havard, who was then Chairman of the Department of Political Science at Vanderbilt University and an editor of a scholarly political science journal. President Toll did not himself know Dr. Havard, who had been recommended by Chancellor Alexander Heard, then Chief Executive Officer at Vanderbilt University. 18 Chancellor Heard told President Toll that he could count on Dr. Havard’s honest and expert advice.

At President Toll’s request, Dr. Havard reviewed publications of plaintiff over a period of several days. When he called back, Dr. Havard recommended strongly against the appointment, telling President Toll that he would definitely not want plaintiff on his own faculty. According to Dr. Havard, plaintiff was not a leading scholar, and Dr. Havard did not regard him as objective or capable. Dr. Havard, although active in political science circles, had never heard of the publications of Bertell Oilman until the recent notoriety that was the result of this particular controversy at the University of Maryland.

Another political scientist who was Chairman of the Department of Political Science at a respected public university, termed the Oilman appointment “silly” and “foolish” and one which could not be justified because it did not take advantage of the University of Maryland’s location near Washington, D. C. It was this Professor’s view that the orientation of the members of the faculty at Maryland behind the appointment was not towards scholarship “but toward social change.” After reviewing plaintiff’s scholarly publications, this Professor called President Toll back four days later to say that he had read much of plaintiff’s work and that he thought that plaintiff could merit tenure but that he would definitely recommend against the Chairmanship at Maryland for plaintiff. 19

When he returned to Long Island for the weekend of July 8-9, President Toll continued his independent check of plaintiff’s qualifications, telephoning and soliciting the views of various members of the faculty at Stony Brook. Professor Frank Myers, who was then about to become Chairman of the Department of Political Science at Stony Brook, stated that although plaintiff was one of the better scholars on Marxist political theory, he, Myers, did not believe that plaintiff was in the same league as the leading political theorists in the country. Professor Myers was doubtful that plaintiff would be considered for a full professorship at Stony Brook, but stated that he did not know whether this was as much a criticism of Dr. Oilman as of his own department where he believed Oilman would not fit in well. Myers had no idea of Oilman’s ability as an administrator.

Professor Joseph Tannenhaus was also a member of the Department of Political Science at Stony Brook and had formerly been its Chairman. 20 He told President Toll that plaintiff was not a major figure in political science because he worked in a field which *1209 had not attracted many of the best political scientists and which was “not a main line field.” Professor Tannenhaus had not heard of plaintiff until one year previously, and he was surprised when the University of Maryland approached plaintiff about the Chairmanship. 21

On July 10, President Toll returned to the Maryland campus. On the evening of July 11, a previously scheduled meeting was held with the full time faculty members of the Department of Government and Politics so that President Toll might personally hear their views concerning the controversial Oilman appointment. Also present at the meeting were Chancellor Gluckstern, Provost Polakoff, Dr. Hornbake and other administrative officials of the University. 22 The meeting lasted for some one to two hours, and some seventeen members of the Department’s faculty attended and freely presented their views concerning the qualifications of plaintiff for the position in question and the procedures employed for recommending him.

What became abundantly clear during this meeting was that the faculty of the Department had sharply differing views both as to the procedural aspects of the selection of plaintiff and as to the s