Judge: Former Cobleskill dean can sue for retaliation

Former dean Thomas J. Hickey can’t use the First Amendment to sue SUNY-Cobleskill for firing him

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Former dean Thomas J. Hickey can’t use the First Amendment to sue SUNY-Cobleskill for firing him after he spoke out against policies that he says violate the rights of black students at the college.

But he can sue for retaliation using other federal laws if he can prove he was fired for trying to protect the rights of minorities, a federal judge ruled last week.

Hickey filed a federal lawsuit in U.S. District Court last year claiming he’d been fired for telling college president Donald P. Zingale and Provost Anne C. Myers that the college’s alleged practice of recruiting black students, regardless of their ability to graduate, is wrong.

He contends the college has lowered academic baselines for accepting students in order to collect their tuition money and make budget, and he claimed black students, in particular, are targeted for such recruitment.

Lawyers for the state Attorney General’s office, which defends state institutions, made several arguments in court papers last month calling for the complaint to be thrown out altogether.

In a ruling dated March 2, U.S. District Judge Thomas J. McAvoy dismissed two of Hickey’s complaints but said two others should be explored further.

“The decision is a vindication of our legal position,” Hickey’s attorney, Phillip G. Steck, said Friday.

In its motion to dismiss the complaint, the Attorney General’s office argued that Hickey can’t sue using the First Amendment’s right to free speech provision because the courts don’t protect the speech of public employees if that speech is work-related.

McAvoy agreed, ruling that Hickey’s opposition to the college’s admission policies was directly related to the work of a college dean.

McAvoy also rejected Hickey’s retaliation claim based on the Equal Protection Clause. Cobleskill is in the U.S. District Court’s 2nd Circuit, and the 2nd Circuit doesn’t recognize a retaliation claim under that clause, according to the ruling.

The Attorney General’s office argued that Hickey can’t sue using a federal law that prohibits racial discrimination where federal funding is involved — like student aid — because he isn’t a student.

The same argument, they said, applies to the federal law prohibiting discrimination when contracts are involved — Hickey wasn’t engaged in a contract with the college like students studying at the college, the attorney general’s office argued.

But McAvoy, in his ruling, states that a person doesn’t have to be a victim of the discrimination they got fired for speaking out against.

The person suing only has to show they were participating in a protected activity, like opposing racial discrimination; that an adverse reaction to that activity took place, like getting fired; and that the protected speech was the cause of the termination.

“Defendants admit that [Hickey’s] speech and actions caused his termination,” McAvoy ruled, so he may have a claim for retaliation.

The same goes for the federal law prohibiting racial discrimination in contracts, the judge said.

Hickey doesn’t have to be a student paying tuition at the college. He can still sue for retaliation after getting fired for speaking out against discrimination related to other students’ contract rights, the court ruled.

Steck said the ruling sets the stage for both sides to start presenting documents and questioning witnesses.

College spokeswoman Kate Birchenough said the college has a policy not to discuss litigation. The attorney general’s office also declined comment.

Categories: Schenectady County

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