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Although the nation’s largest law school saw an end to one protracted legal battle earlier this year, it now has another court fight on its hands that alleges nepotism involving a Michigan appeals court judge who sits on its board of directors. A former associate dean at Thomas M. Cooley Law School charges that the school fired her because she would not agree to hire the husband of Michigan Court of Appeals Judge Jane E. Markey. The plaintiff in the case, Lynn Branham, said that she and other faculty members refused to approve the appointment of Markey’s husband, who is now a tenure-track professor at Cooley. The lawsuit and correspondence among board members, administrators and faculty obtained by The National Law Journal indicate a fierce power play at the school regarding the hiring of Markey’s husband, Curt Benson. Filed in the U.S. District Court for the Western District of Michigan, the lawsuit is the latest in the school’s court scuffles. In January, Cooley lost a four-year fight when the U.S. Supreme Court declined to review its case alleging that the American Bar Association wrongfully delayed the accreditation of its Grand Rapids, Mich., and Rochester, Mich., campuses. Branham, the former associate dean of Cooley’s Grand Rapids campus, asserts in her July 2 lawsuit that law school administrators pressured her and other faculty members to approve the appointment of Markey’s husband as an associate tenure-track professor in 2003, despite concerns she expressed about his academic record and about a conflict of interest in hiring him. She left the school in 2006, after it did not offer her an employment contract, the lawsuit alleges. Branham’s claims include damages for breach of contract and intentional infliction of emotional distress. She also alleges that the school violated the Americans With Disabilities Act. In court papers, she asserts that she suffers from epilepsy, which was worsened by the increased workload she received as retaliation for her failure to approve Benson for a tenure-track position. Named as defendants are Thomas M. Cooley Law School and its president and dean, Donald LeDuc, who did not return repeated phone calls seeking comment for this article. Cooley’s general counsel and associate dean of development, James Robb, said that the school will “vigorously defend” the case in court. Markey, who is not named in the lawsuit, said it was “absolutely inappropriate” for her to comment. Markey, a graduate of Cooley, has been a director on its 13-member board since 1995 and was elected to the Michigan Court of Appeals in 1994. Her term expires on Jan. 1, 2009. Benson, who became a tenure-track professor following another faculty vote last year, was a litigator for 21 years in the Grand Rapids area. His father is a retired Michigan state trial court judge in Grand Rapids. Benson, also a graduate of Cooley and the former president of the Grand Rapids Public Schools Board of Education, declined to answer questions about the lawsuit. “It’s outside of my concern at the moment,” he said. Branham also declined to comment for this article. She joined Cooley in 2003 as the associate dean of the school’s Grand Rapids campus, which opened that year. She had been on the Cooley faculty from 1983 to 1996 and left to become a visiting senior research scientist at the University of Illinois. She also was a visiting professor at the University of Illinois College of Law. She earned a juris doctor degree from the University of Chicago Law School. Conflicts and typos According to the complaint, the controversy began in 2003, when Branham failed to support Benson’s appointment, which subsequently was rejected twice by a faculty vote before he finally was approved in 2006. Branham’s reasons for opposing Benson’s appointment included what she perceived as a conflict of interest because his wife sat on the board of directors. Branham also opposed Benson’s appointment because of his below-average grades in six classes while he was a law student at Cooley in the 1980s, and because of typographical errors in the materials he submitted as part of his bid for the job. Branham alleged that a conflict of interest arose because of the appointment power that the board wields over LeDuc’s job as president and dean, which the hiring of a director’s spouse � or failure to do so � could compromise. Following the first faculty vote, the school’s administration and Markey herself apparently began to lobby heavily for Benson’s appointment. Benson had taught at the school as a visiting professor before he applied for the full-time position. A day before a special faculty meeting in July 2004 to reconsider Benson’s appointment, documents indicate that Markey sent a four-page letter to LeDuc, Branham and Charles Cercone, associate dean of faculty, with instructions to pass it on to other faculty members if they wanted to do so. She also wrote that she did not “want or expect any response whatsoever.” The letter lauded her husband’s accomplishments and explained his shortcomings. “As an employer myself and as a former member of Dykema Gossett’s recruiting committee, I would wonder why such a smart guy had such average grades,” the judge wrote. “Well immaturity, personality and naivet� all played a role.” The judge continued: “During the many years we have shared in the legal profession and in politics, Curt and I have faced many dilemmas, some of which have been quite public and unpleasant. Curt has admitted his mistakes with humility and contrition.” It is unclear to what the judge is referring. However, in 2002, while Benson was campaigning for a Kent County court judgeship, a race he lost, a local newspaper reported that he refused to answer the Grand Rapids Bar Association candidates’ questionnaire, complaining that the questions were unfair. One of the questions would have required Benson to reveal that he was convicted in 1994 of driving while visibly impaired. After the first faculty vote and before the judge sent her letter, Cercone, the dean of faculty, apparently sent Branham an e-mail that she asserts served as an ultimatum regarding her job security. The e-mail stated, “Last chance to fall on your sword and do the right (or maybe just the smart) thing. What do you say?” Branham responded, “I did the right thing (and the smart thing for the school, our students, and Don) last week.” Cercone, who declined to comment for this story, submitted a motion to the faculty to reconsider Benson’s appointment for a second vote after Benson’s bid was rejected the first time, according to Branham’s complaint. Correspondence indicates that Cercone followed up with a six-page memo to the faculty outlining why he believed Benson was qualified for the job and why no conflict of interest existed. The memo stated that the faculty relied too heavily on Benson’s grades and did not fully consider the positive student evaluations he received as a Cooley visiting professor and his work experience. It also stated that the faculty’s decision to reject Benson could potentially “take the faculty hiring process out of the hands of the Dean and Faculty and into the hands of the Board of Directors.” It further stated that Branham’s charges of a conflict of interest served as a “direct challenge to the authority of Cooley’s Board � one that [would] not go without review.” It continued, “This whole affair will likely have consequences far beyond our decision whether to hire Professor Benson.” Under the ABA standards for accreditation, law schools that are not part of a university, such as Cooley, should be governed by a board, which grants authority to a dean. The rules require that the dean and faculty recommend to the board the selection, retention, promotion and tenure of faculty. An ABA spokeswoman could neither confirm nor deny whether it had received complaints about Cooley’s governance procedures. John Sebert, who served as the consultant on legal education to the ABA from 2000 to 2006, declined to comment specifically on the Cooley matter. But he said that boards of independent law schools generally have more input into personnel matters than boards at law schools affiliated with larger universities. However, he added that they are more likely to get involved in the promotion of a faculty member to a tenured position than in an initial appointment. Several current and former Cooley faculty members declined to be interviewed for this story. “We’ve been told that we couldn’t say anything,” said Dennis Cichon, a professor at Cooley who teaches contracts and secured-transactions courses. But one former Cooley professor, Leo Clarke, who left the school last year to go into private practice at Drew, Cooper & Anding in Grand Rapids, said he had concerns about some of the administration’s practices, though he declined to comment specifically about Benson’s appointment. “The school and I had a difference of opinion as to the qualifications for being a good professor,” Clarke said. He is a graduate of University of California at Los Angeles School of Law, Order of the Coif, and a co-author of Secured Transactions and Payment Systems: Problems and Answers (Aspen, 2003). He described Branham, who had pushed for his hire at Cooley, as “obsessive-compulsive about her duty to be fair to the school.” Established in 1972 and accredited by the ABA in 1975, Thomas M. Cooley Law School has about 3,300 students, of whom about 2,750 attend part-time, according to the latest data from the ABA. The bar-exam passage rate for its students was 71% for the 2005-2006 academic year, compared with a 74% pass rate statewide. The attrition rate for first-year students is 26%. Branham’s lawsuit alleges that her epilepsy worsened because of an increased workload she received after she rejected Benson’s application. She claims that beginning in January 2005, she was not allowed to teach in her area of expertise, criminal law and procedure, and was required to teach equity and remedies instead. Her assignment then changed to torts and later to constitutional law. Branham asserts that she requested a reasonable accommodation to help reduce a stress level that was exacerbating her epilepsy, which the school did not make. Her claim states that, in September and November of 2006, she took unpaid leave under the Family Medical Leave Act. She obtained a right-to-sue letter from the Equal Employment Opportunity Commission on June 1. The case is before U.S. District Chief Judge Robert Holmes Bell.

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