By Christopher Warburton.
The requirement that a black faculty member should publish in Economics journals while white faculty members should not publish in such journals is obviously discriminatory. In the world of Judge Oetken, that cannot be discrimination. Additionally, the judge did not see evidence that was provided by personnel committee members who recounted, without solicitation, several instances of discrimination and duplicitous standards behind closed doors.
This is a judge who was appointed to the Federal bench with the help of a New York Senator, Schumer. The judge presided over the case of Senator Schumer’s friend, Jeremy Travis (the President of John Jay College). For over seven years, the President of the College could not find anyone else to give annual commencement addresses except Schumer. Of course, Travis was sued together with Jay Hamilton and Joan Hoffman. It strikes me as odd that the judge presided over a case that exudes the appearance of impropriety or conflict of interest. Unlike the proposition or insinuation of Freedman, the judge has never provided finality to the case.
It is rather strange that as government employees, the defendants begged for immunity though they were sued as individuals. The reckless judge provided them cover by introducing a new judicial philosophy, “immunized discrimination and retaliation,” to the jurisprudence of the United States. Government employees may be immunized after they have performed their duties responsibly; not after they have negligently executed their duties with depraved indifference, hubris, callousness, or lawlessness. As a result, the ruling of the judge is both prejudicial and disturbing; an unspectacular manifestation of judicial activism without careful thought of practical consequences.
The Judge seems to understand that when a Department Chair, Jay Hamilton, was under investigation for discrimination, he should not have presided over the personnel process of a complainant. More so, the Chair should not have knowingly and willfully provided false information to a personnel committee and the Equal Employment Opportunity Commission (EEOC). In the real world (beyond that of Judge Oetken) and under New York State Law, such a behavior is known as “retaliation” and “perjury.”
Sadly, and notwithstanding the latent awareness of the judge, the judge immunized the defendants against a retaliation suit. By so doing, the judge rendered mute the New York State Law against retaliation when it comes to government employees. The spirit and intent of the retaliation law were never intended to promote discriminatory application of the law. That is, government employees should never be free to retaliate against their subordinates in their privileged capacity as government employees. Government employees may be immunized after they have performed their duties responsibly; not recklessly.
By immunizing the defendants, the judge approved of the negligent behavior of the college. The college is negligent because it claimed that it investigated a discrimination complaint without doing so. The college is equally negligent because it refused to appropriately prevent the preservation of a hostile work environment despite repeated complaints of harassment. The judge was apprised of the publicly available evidence that did not matter to him or the author of the previous article. Of course, with judges like Oetken, why should John Jay College or its employees be subjected to the rule of law? Why should the college discontinue its affinity with a culture of discrimination and negligence? When a judicial system is rotten because of some tawdry judgments or judges, society decays and it begins to grapple with the decadence of lawlessness and disorder.
Evidently, the article is factually incorrect and probably innocently incorrect because the judge did not show a proper understanding of the case. The application for promotion was never considered because of a deprivation of due process. The reality is at variance with the assertion that promotion was denied. The Department Chair, Jay Hamilton, who is an Assistant Professor and whose public record reflects that he has neither published a paper in an Economics journal nor demonstrated an ability to do so, collaborated with the Provost, Jane Bowers, to ensure that a Promotion Committee did not evaluate the merits of an application for promotion. Public evidence suggests that the Chair has never engaged in an exercise of intellectual curiosity; shockingly so. Apparently, the judge did not show any sensitivity to the details of the case, the meaning of deprivation of due process, and the circumstances under which such a deprivation is discriminatory.
In the final analysis, the US judicial system is very resilient. It has adequate self-correcting mechanisms or safeguards that should provide caution against imprudent analysis or pontification. While the author of the article presumes or insinuates finality of a judicial process—without allusion to the flawed ruling and preconditions for appeal—a balanced or prudent analysis should indicate that the flawed and surprising ruling of the judge is not an authoritative dispensation of the case to warrant any premature presentation or discussion of the case.
