The following Letter to the Editor was submitted to the Chronicle of Higher Education but not published. March 25, 1999
Faculty who are contemplating legal action against a university should consider whether the defendant is able to crush a legal challenge by virtue of the fact that its adjunct professors who also serve as judges are in a position to protect the university from potentially costly judgments. The issue of faculty judges who sit in cases brought by faculty plaintiffs against the same defendant university is no mere academic question. It is a troubling and growing concern among those who feel that the breach of judicial ethics inherent in this scenario can only work to further erode public confidence in the judicial process. There are at least three reported instances where plaintiffs, associated with a university, failed in their attempt to recuse a judge associated with the same defendant university. They are: Tonkovich v. Kansas Bd. of Regents [924 F.Supp. 1084 (D.Kan. 1996)], Wu v. Thomas [996 F.2d 271 (11th Cir. 1993)], and Lunde v. Helms [29 F.3d 367 (8th Cir. 1994)]. No doubt there are similar cases like that of the author's that have not yet been published. That judges associated with a university may feel obliged to defend it is not lost on administrators who have aggressively sought to add judges to their law school faculties. To understand how an educational institution can control the courts for its own purposes, one need look no further than to Louisiana and the control exerted by one of its major private universities. Tulane University has perfected a powerful means of influencing politicians and the local judiciary through the use of scholarships and academic appointments. The degree of control thus acquired inspires both admiration and fear. Tulane has given hundreds of thousands of dollars in scholarships to the families of judges who later tried cases against it - and even more to the families of U.S. Senators who helped choose federal judges who later tried cases against it. These gifts were effectively "laundered" by being passed through the hands of state legislators and other elected officials. The scholarship program has been further "legitimized" through the bona-fide distribution of scholarships to the families of deserving, needy students. Judges who are adjunct professors in Tulane's Law School are frequently called upon to preside in lawsuits brought against Tulane by its former employees. The most noteworthy instances occur when such faculty-judges sit in cases brought by faculty-plaintiffs. A prime example of the way state judges, whose families benefited from Tulane scholarships, appeared to exhibit bias against Tulane employee plaintiffs can be found on the Web site: www.tulanelink.com. From the "Menu of Documents," click on "Schwarz v. Tulane." See also "Judicial Conflict of Interest." Tulane's scholarship gifts are legal in Louisiana because of an act, recently upheld, that established Tulane's tax-exempt status in 1884 (see enclosed reprint from The Times-Picayune, May 30, 1996, p. A-2). Additional Times-Picayune references to Tulane's scholarship program and the scandal surrounding it can also be found on the above Web site. Interestingly, federal investigations into scholarship gifts given by the Salt Lake City Organizing Committee to families of the International Olympic Committee may lead, ultimately, to regarding such gifts as bribes that may possibly constitute criminal wrongdoing. If the Department of Justice finds that scholarship gifts to public officials have the intent of cultivating favoritism and are illegal under federal guidelines, then Louisiana state law regarding Tulane scholarships could be superseded by federal law and thus be considered illegal. In the meantime, Tulane will continue to enjoy the unprecedented advantage cultivated by decades of influence peddling. In conclusion, Tulane's secret weapon against its employee plaintiffs is a cadre of judges whose loyalty is assured through scholarships, law school professorships, and other associations with the University. Even the Chief Judge of the Federal District Court sits on Tulane's Board of Governors. Thus, as long as the principle of equal justice under the law is compromised by political considerations, it is little wonder that public confidence in the judiciary has ebbed so low. One can only speculate on whether a study of law schools with judges on their faculty would uncover a similar state of affairs at other universities. Carl Bernofsky, Ph.D.
Former Research Professor (1975-1995)
Tulane University School of Medicine
IS YOUR SCHOOL THE BENEFICIARY OF IMPROPER JUDICIAL PARTISANSHIP? The following two-step process can determine whether a university law school engages in the practice described above. The first step is to examine law school catalogs for the past five or more years. Adjunct faculty who are also judges are identified by the title "Honorable" in front of their names. The second step is to examine the dockets of cases in both state and federal courts in which the university is named as defendant. The most pertinent cases will be civil suits brought by present or former employees. Searches for cases and their dockets may require personal visits to a courthouse or the use of a relatively expensive information retrieval service. Presiding judges are conspicuously noted on the dockets, while magistrate judges may be indicated only by a numerical code that will require identification by a clerk. If the result is affirmative, a brief account of any pertinent finding may be directed to: American Bar Association, Section of Legal Education and Admissions to the Bar, 750 North Lake Shore Drive, Chicago, IL 60611.
POSTSCRIPT The ABA's Section of Legal Education and Admissions to the Bar maintains a staff of consultants who are faculty members at Indiana University's School of Law. From Bernofsky's experience, the primary purpose of the Office of the Consultant on Legal Education appears to be the protection of ABA's accredited schools, which the Office accomplishes by intercepting negative criticism, identifying problems that arise and, if necessary, taking defensive action. Thus, the ABA, while employing slogans such as "Defending Liberty" and "Pursuing Justice," is dedicated, like any other establishment enterprise, to safeguarding its own interests and maintaining an iron grip on its private domain. Following Bernofsky's written complaints to ABA's Section of Legal Education about Tulane's employment of law professor judges who hear cases brought against the university, Tulane defiantly funded a trip to Greece for an adjunct professor judge who was presiding in a case against it and advertised the trip widely in its brochures and Web site. Bernofsky now recognizes that movement toward judicial and legal reform cannot arise from within those judicial and legal institutions that need to be reformed. Greater reliance must be placed upon outside organizations that are dedicated to necessary change and understand from the experience of their constituents what reforms are needed. In short, only with continued vigilance and a commitment to tireless effort can citizens guard themselves from the actions of established institutions that would deprive them of the liberty and justice promised by the U.S. Constitution. NOTE In 2005, The Faculty Rights Coalition proposed that adjunct professor judges should agree, as a precondition of employment, not to hear cases that involve the institution where they teach.
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