With Great Caution and Deference New Jersey Courts Leave Decisions Resulting From Internal Grievance Proceedings of Universities Undisturbed

On February 16, 2024, in a published decision in Chee Ng, PH.D., v. Fairleigh Dickinson University, the New Jersey Appellate Division granted summary judgment in favor of the University against a former tenured professor who disagreed with the findings of his termination hearing. The court left the University’s decision to terminate the professor undisturbed because it is well settled that Universities have the freedom to decide who to hire, promote, or retain. A University’s – whether public or private – grievance process is entitled to deference.

Facts

Fairleigh Dickinson University (“FDU”) hired Dr. Chee Ng in December 1999, as an Associate Professor of Finance at the Silberman College of Business. In 2003, Dr. Ng was granted tenure by FDU and promoted to full time Professor in 2007. However, during his tenure, Dr. Ng received forty-six complaints from students regarding his inappropriate and unprofessional teaching style. So much so that his behavior had become so extreme that his continued presence became harmful to the University’s reputation.

Students enrolled in Dr. Ng class first complained about him in the Spring of 2009. Ten students alleged that: (1) he made discriminatory comments during class; (2) he mistreated students: and (3) he had a generally rude demeanor. Then in Fall 2010, seven of Dr. Ng’s student complained of the following: (1) improper conduct; (2) inappropriate comments about being tenured; (3) inappropriate discussions about out of class subjects; and (4) general insensitivity to student questions about in-course material. Thereafter, in an effort to remediate the situation, the Department Chair met with Dr. Ng three times that semester to discuss the student’s allegations to avoid similar complaints by his students in the future. In the meeting, the Chair recommended that Dr. Ng modify his approach to classroom management and be more accessible to students.

A little over a year later in January 2012, yet again, another group of students complained about Dr. Ng alleging that Dr. Ng baselessly accused his class of cheating and discouraging them from asking questions during his lecture. Later that semester another student complained that Dr. Ng made a discriminatory comment singling out a religious minority. The Chair once again addressed these complaints in an email to Dr. Ng and copied the Dean and the Associate Dean of the business school. When Dr. Ng responded to the email, he refused to take any accountability for how his actions were perceived. Yet again, the Chair emailed Dr. Ng offering advice to make the student feel more comfortable.

In the Fall of 2013, more students complained about Dr. Ng’s classroom demeanor. Again, the Chair met with Dr. Ng multiple times during the semester to discuss the complaints and potential remedies and memorialized these conversations with emails to Dr. Ng. Once again Dr. Ng refused to take accountability for his actions.

In the Spring of 2015, five more students filed complaints alleging similar allegations. This time, on April 7, 2015, Dr. James Almeida, the Associate Dean of the business school met with Dr. Ng that semester to review the students’ allegations. On April 22, 2015, Dr. Andrew Rosman (“Dr. Rosman”), one of the business school Deans prepared a memo documenting the five new complaints. The memo noted that Dr. Ng had been counseled on his classroom demeanor and verbal mistreatment of students. Dr. Rosman recognized and included in the memo that rather than reform Dr. Ng had become more inappropriate, and the escalation of this behavior had been taken to such an extreme that it was harmful to FDU. During the summer semester of 2015 Dr. Rosman wrote Dr. Ng detailing thirty-six complaints made again him over time and was put on notice that serious sanctions would be imposed if he did not improve his behavior.

Dr. Ng did not teach in the Fall of 2015 or Spring of 2016 because he was on sabbatical. However, when he returned to the classroom in the Fall of 2016, FDU yet again received a student complaint alleging that Dr. Ng called the class “stupid”. Dr. Rosman wrote to Dr. Ng about the student’s complaint and again warned him that if the complaints persisted the consequences would be more severe.

A year later, in the Fall of 2017, nine students filed complaints regarding the same pattern of behavior that Dr. Ng had exhibited in the past. As promised by Dr. Rosman that more severe consequences would ensue if the complaints persisted, Dr. Rosman forwarded the complaints to FDU Provost, Gillian Small (“Small”).

On March 20, 2018, Dr. Ng was informed by Small that the University had commenced a dismissal proceeding pursuant to Section XI.3.1 of the faculty handbook and he was provided with a statement of charges. The University Grievance Committee (“UGC”) found that there was adequate cause for termination because Dr. Ng allegedly breached various provisions of the faculty handbook and violated additional standards established by the American Association of University Professors. On May 21, 2019, the UGC recommended that Dr. Ng be placed on probation for a period of two to three years. Christopher Capuano (“Capuano”), FDU’s President rejected the UGC’s finding and concluded that there was adequate cause supporting termination. Capuano forwarded his written recommendation to the Board who reviewed the entire record and unanimously voted to terminate Dr. Ng. The Board found all forty-six complaints credible and noted FDU’s several attempts over the years to implement corrective action to assist Dr. Ng in correcting his classroom demeanor. Therefore, the Board found clear and convincing evidence that Dr. Ng had engaged in willful misconduct and the record supported termination.

Trial Court Decision

On September 16, 2019, Dr. Ng filed a complaint in the trial court alleging FDU breached the terms of the faulty handbook because the University failed to establish adequate cause for termination by clear and convincing evidence. After completion of discovery, FDU moved for summary judgment. The trial court granted FDU’s motion. The court found that the Board properly followed its own internal procedures and there was sufficient evidence in the record to support its decision. Further, the handbook authorized the Board to make the final decision on Dr. Ng’s termination from his tenured professorship and found the Board was neither arbitrary, capricious nor unreasonable in doing so.

Appellate Division Decision

On appeal, Dr. Ng argued that the court should perform a de novo review of the Board’s actions and further argued that the Board failed to prove his conduct warranted removal as a tenured member of the FDU faculty at his termination hearing. Dr. Ng further argued that the trial court committed error by reaching the same conclusion as the Board without weighing the evidence itself. The appellate court was unpersuaded by Dr. Ng’s argument. The court recognized that Dr. Ng was essentially asking the court to retry the merits of the tenure hearing appeal. That the court will not do so because New Jersey courts give deference to a University’s decision – private or public institution – because Universities must be free to determine for themselves on academic grounds who may teach. The court integrates principles of “academic freedom” with its deference to an academic institution’s agreed upon grievance process. Thus, in instances like this the court will apply an agency standard of review by applying deference to institutional expertise for internal procedures that involves the removal of a tenured faculty member. The court exercises “great caution” when asked to substitute its judgment for that of a teaching university. The court recognizes that such a decision cannot more fully implicate an institution’s academic responsibility. In upholding the trial court’s grant of summary judgment, the court considered the voluminous record which included numerous complaints made against Dr. Ng over ten years; correspondence between Dr. Ng and his supervisors; the UGC’s and University’s recommendations; and multiple email between the parties concerning student complaints of Dr. Ng’s misconduct and his written responses to them. Therefore, the court concluded that there was sufficient credible evidence in the record to support the Board’s decision and its actions were not arbitrary, capricious or unreasonable.

The Bottom Line

As long as the University’s decision is neither arbitrary, capricious nor unreasonable the courts will defer to the University’s decision. The court recognizes decisions like this rest in the realm of the institution’s expertise.

For more information regarding this decision please contact John C. Petrella, Esq., Chair of the firm’s Employment Law & Litigation Practice Group via email here or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Counseling & Compliance Practice Group via email here, or call 973.533.0777.