The Administrative Agency Standard of Review Applies to Internal Decisions of a University Regarding Removal of a Tenured Faculty Member

Ng v. Fairleigh Dickinson University, ___ N.J. Super. ___ (App. Div. 2024). This opinion by Judge Smith upheld the decision of the Board of Trustees to terminate the employment of plaintiff, a tenured professor. Over a period of nearly a decade, dozens of students submitted complaints about plaintiff. Those complaints ranged from allegations of “discriminatory comments during class; mistreatment of students; and generally rude demeanor” to “inappropriate comments about being tenured; inappropriate discussions about out-of-class subjects; and general insensitivity to student questions about the in-course material” to accusations that plaintiff had “baselessly accused his class of cheating and discouraged them from asking questions during his lecture.” Along the way, plaintiff had been counseled about changing his behavior but did not do so.

When yet another set of comparable complaints was made, the university began proceedings before its Grievance Committee (“the UGC”). As Judge Smith recounted, the UGC “found there was adequate cause for dismissal, alleging Dr. Ng breached various provisions of the faculty handbook, specifically sec. XI.1.1, citing ‘[f]ailure to perform professional responsibilities, either through gross incompetence, gross negligence, or willful disregard of scholarly and professional standards,’ and sec. XI.1.3, ‘[w]illful acts which directly and seriously subvert the rights and welfare of members of the University community. The statement of charges also alleged Dr. Ng violated additional standards established by the American Association of University Professors.”

The UCG recommended that plaintiff be placed on probation for two to three years. The University’s President, however, rejected that and concluded that there was adequate cause for termination. He forwarded his recommendation to the Board, which “reviewed the entire record, including submissions from Dr. Ng, and unanimously voted to fire him. The Board found clear and convincing evidence Dr. Ng had engaged in willful misconduct, and that the voluminous record before it supported dismissal. Among other issues, the Board found all the student complaints, now totaling forty-six, credible. The Board rejected Dr. Ng’s arguments that the students’ complaints were inherently unreliable. Finally, the Board noted FDU’s several attempts over the years to implement corrective action to assist Dr. Ng in correcting his classroom demeanor.”

Plaintiff sued. The Law Division granted summary judgment to the university, finding that the faculty handbook authorized the Board to make the final decision as to whether plaintiff should be terminated and that the Board’s decision was not arbitrary, capricious, or unreasonable. Plaintiff appealed, arguing that the Law Division had erred in failing to weigh the evidence in the record and in ordering additional submissions before deciding on the motion for summary judgment.

Judge Smith quickly disposed of the latter argument. “A trial judge has discretion to permit supplemental pleadings, and such ‘discretion should be exercised to increase, not limit, the likelihood that the information before the court reflects facts that could be adduced at a hearing..’ Burns v. Hoboken Rent Leveling & Stabilization Bd., 429 N.J. Super. 435, 443 (App. Div. 2013). The trial court properly exercised its discretion when it found the record insufficient and requested additional briefing. The resultant order increased the amount of relevant evidence available to the trial court to facilitate an informed decision.”

That left the question of the standard of review. Judge Smith observed that the Appellate Division would review the Law Division’s ruling de novo. But the Law Division was not required to review the Board’s decision de novo, contrary to plaintiff’s contention. Judge Smith cited cases in which our appellate courts had reviewed deferentially “a private high school’s institutional expertise in applying agreed-upon procedures for hiring, promoting, and retaining its teaching faculty,” as well as decisions giving “well-settled deference to the internal decisions of our public universities.” Decisions elsewhere did likewise.

Plaintiff relied on some cases, led by Woolley v. Hoffmann-LaRoche, Inc., 99 N.J. 284 (1985), But those cases involved the “well-settled use of common-law contract jurisprudence to determine if an employer’s actions to terminate an employee comport with the procedures set out in a non-negotiated employee handbook. These cases are inapposite, as it is undisputed that FDU’s faculty handbook is a negotiated agreement which establishes the method and manner the university must follow to remove tenure status from a professor.”

Judge Smith concluded by stating that “integrat[ing] principles of academic freedom with our deference to an academic institution’s agreed upon grievance process, we conclude an agency standard of review must apply to consider a challenge to a private university’s decision to terminate the employment of a tenured professor.” He then went on to reject plaintiff’s contention that there was not clear and convincing evidence on the record as a whole to support termination.

“The voluminous record includes, among other things: numerous complaints made against Dr. Ng over ten years; correspondence between Dr. Ng and his supervisors; the UGC’s and university president’s recommendations; and multiple emails between the parties concerning student complaints of Dr. Ng’s misconduct and his written responses to them. Dr. Ng essentially asks us to retry the merits of the tenure hearing on appeal. We decline to do so. We also decline to substitute our judgment for that of the Board in evaluating and weighing the evidence presented at Dr. Ng’s tenure hearing.” The panel thus affirmed the summary judgment for the university.