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A former New York college instructor may proceed with a claim that he was denied tenure because school administrators disapproved of his conservative politics and support for President George W. Bush, not for deficiencies as an educator, a federal judge has ruled. Michael Filozof has presented sufficient evidence of a possible First Amendment violation to deny Monroe Community College’s motion for summary judgment on his free speech claim, Western District Court Judge David G. Larimer has determined. Filozof contends the tenure track he was on as a political science instructor at the Rochester, N.Y., community college was suddenly derailed in 2003, during a period of hot debate among students and faculty over the ramp-up to the war in Iraq. His complaint characterized faculty and administrators as liberals who are intolerant of right-of-center viewpoints. He argues in Filozof v. Monroe Community College, 04-cv-6545L, that a sex-harassment charge was trumped up against him after he theatrically kissed the hand of a school secretary and that administrators began to question his “open-mindedness” because of the confidence he expressed in the correctness of his conservative views. Judge Larimer ruled Tuesday that whether Filozof can ultimately prove college officials engaged in the discriminatory fashion he alleges “are questions of fact which cannot, and should not, be resolved by this Court.” “In order to meet his initial burden on his First Amendment claim, Filozof need not show that his political speech was the only factor in MCC’s determination, but must show that it was a ‘substantial’ or ‘motivating’ factor,” the judge wrote from Rochester. “Construing the evidence in Filozof’s favor, as I must on this motion, I find that Filozof has met this burden, and that MCC has failed to prove that it would have discontinued Filozof’s employment even in the absence of such speech.” Filozof was initially brought on at the community college as an adjunct political science teacher in the spring 2002 semester and subsequently hired for the 2002-03 academic year for what was to be the first of five, one-year contracts that would culminate in his being granted tenure in 2007. In March 2003, however, Filozof was observed taking transparencies he had requested from a college secretary and, “in a Shakespearian manner,” bowing and kissing the woman’s hand in thanks. As he left, he said to a male professor words to the effect that, “See Dave, that’s the way you have to treat them.” The secretary, Diana Rayner, related the incident to Susan Belair, the chairwoman of the political science department. Belair, in turn, told the college’s sexual harassment officer, Susan Baker. In a deposition, Rayner said she did not consider the hand kiss to be sexual harassment but that she was pressured by Belair or Baker, or both, to file a formal complaint. Filozof balked at meeting with Baker to discuss the incident that led to the complaint. He was later ordered to apologize to Rayner, Day, Baker and Belair and to hold a series of meetings with Belair to discuss his “acculturation” at the college. That fall, members of Filozof’s department recommended that his contract be renewed for a second year, calling him an “exceedingly gifted teacher” and including unsolicited letters from students praising his work. Belair, however, recommended against rehiring Filozof, citing his interpersonal “difficulties” and his alleged reluctance to participate in college activities beyond the classroom. The liberal arts dean at the college, Chet Rogalski, also recommended against renewal, as did Vice President Janet J. Glocker. The trustees at the college ultimately voted against rehiring Filozof. Rogalski said he was against renewal in part based on Filozof’s alleged failure to be “open-minded” with respect to his political conservatism. At a deposition, Rogalski said he was “disappointed when I suggest to Michael that his philosophy was conservative and he remarked that it was not — it was factual and correct. … Michael has evidenced through his attitude and relationships that he will always consider himself right and others wrong. One of the hallmarks of a successful college professor is that they have an open mind to differing opinions and people.” POLITICAL VIEWS The attorneys for Monroe County who defended the college and its administrators contend that it was not Filozof’s political beliefs that Rogalski meant when he criticized the failure to be more “open-minded.” Rather, Rogalski objected to Filozof’s insistence that he was correct and worried that he might stifle the airing of opposing views in his classroom, the county argued. Judge Larimer disagreed. “It is clear from Rogalski’s handwritten notes outlining the written recommendation that his conclusion about Filozof’s open-mindedness referred to Filozof’s political views,” the judge wrote. In fact, materials submitted to administrators in support of renewal of Filozof’s contract contained praise from students and other professors for allowing classroom discussions of viewpoints that conflicted with his conservative stances, Larimer held. The judge also wrote that the timing of the decision not to renew Filozof’s contract is “suggestive of a potential causal relationship” between the decision and Filozof’s expressions of support for Bush and the Iraq war. “Politically charged” conversations were occurring at the college about the country’s involvement in Iraq, Larimer wrote, and Filozof had posted an American flag sticker on his office door with a pro-Bush slogan on it, leaving no doubt where he stood. Larimer dismissed Filozof’s causes of action that he was discriminated against based on his gender and Caucasian race. He also dismissed Filozof’s motion to declare unconstitutional two programs that offer teaching opportunities to minority instructors. J. Nelson Thomas of Dolin, Thomas & Solomon in Rochester represented Filozof. Michael E. Davis and Howard A. Stark of the Monroe County Department of Law argued on behalf of the college, its trustees, several college administrators and Monroe County.

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