Opinion
December 21, 1970
Appeal from a judgment of the Supreme Court at Special Term, entered June 11, 1970 in Albany County, which dismissed petitioner's application, in a proceeding under CPLR article 78, to compel an investigation of alleged political discrimination in hiring at the Law School of the State University at Buffalo, and to require the State University to cease and desist from such alleged discrimination against petitioner. Appellant, an attorney, brings this proceeding in the nature of mandamus, alleging that he has been the victim of discrimination. He charges that the sole basis for denial to him of employment as a law professor at the State University at Buffalo School of Law is his conservative political views. Appellant originally filed a complaint with the State Commission for Human Rights, which was dismissed on the grounds that the Commission had no jurisdiction to consider discrimination due to "political and social views". No appeal was taken from this decision. It is a well-established legal proposition that before mandamus will issue, a clear legal right to relief must be demonstrated. ( Matter of Marburg v. Cole, 286 N.Y. 202.) Special Term concluded that "Since public employment is a privilege and not a right, petitioner lacks the clear legal right to relief". The position which appellant seeks on the teaching staff of the State University is in the professional service (Education Law, § 355-a, subd. 1), and is part of the unclassified Civil Service (Civil Service Law, § 35, subd. [h]). The Dean of the Buffalo School of Law denied petitioner's contentions and states that the decision not to hire him was based on an evaluation of his scholarship and teaching ability. Evaluation of a teaching candidate is a discretionary power vested in the appointing officer, and unless made in an arbitrary and capricious manner, may not be disturbed. Qualifications of a teacher, concerning such matters as the quality of books and articles published, recommendations from past employers and teachers, are largely determinations properly left to the judgment of an administrator. Appellant has failed to produce any evidence upon which it can be concluded that respondent's determination was based on considerations other than his professional qualifications and ability. Judgment affirmed, without costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.