Supreme Court sides with tenure-track professor, denies anti-SLAPP motion by California State University

By Elizabeth Alt | May 16, 2017

LOS ANGELES — A former tenure-track professor at California State University is continuing a lawsuit against the university for allegedly denying tenure because of his national origin, also claiming the school failed to provide a non-discriminating workplace. 

Sungho Park, who is Korean, filed a lawsuit on May 27, 2014, in the California Second District Court against the California State University Board of Trustees to seek damages and receive his rights as a tenured professor. 

California State University responded to the suit asking to strike the motion under the state's Anti-SLAPP (Strategic Litigation Against Public Participation) statute, which protects against frivolous litigations surrounding the subject of public versus private speech and actions. The university claimed the evidence of communication from Park’s employee reviews is protected under the state’s anti-SLAPP law. 

The issue made its way to the California Supreme Court, which sided with Park on May 4 and sent the case back to trial. The Supreme Court said the question of how a claim relates to a defendant’s protected activity has “generated uncertainty in the Courts of Appeal.”

“A claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted,” the opinion, written by Justice Kathryn Werdegar, states.

Park, who was hired as assistant professor specializing in special education in 2007, was denied tenure in May 2013 after the university’s formal review process. California State University claims the notes from each tenure and employee review show Park was encouraged to produce more academic articles as per their requirements. The defendant claims this was one of the primary reasons for denying his tenure. Park originally filed a grievance with the university in September 2013, which was denied on the basis that his performance was found unsatisfactory in professional achievement.

Park claims several of his Caucasian colleagues who produced the same or fewer academic papers were given tenure, and not given the same criticism he received during their reviews. Park also alleges over the years of his employment with California State university, Dean Diane Fazzi made comments regarding his inability to work well with students and suggested it was due to his cultural or national origin. 

The trial court denied the motion on Oct. 8, 2014, ruling that Park's complaints did not arise from CSU's communicative conduct related to the tenure reviews or the employee reviews, but rather from its allegedly discriminatory decision to deny tenure. In a split decision, the Court of Appeal reversed the ruling, determining the university’s decision to deny tenure relied enough on protected communications to warrant granting the university’s motion. 

In its ruling, the Supreme Court highlighted the dissenting opinion in the Court of Appeals.

“The dissent argued, in contrast, that all government action inevitably involves some form of communication, and courts must distinguish between instances when a claim challenges only the action itself and instances when a claim challenges the process that led to the action,” the opinion states. “Because the claim here, in the dissent‘s estimation, involved only the decision to deny tenure and not any arguably protected communications that preceded it, the trial court‘s ruling should have been affirmed.”

The plaintiff is represented by Jane Brunner and Alan Yee, of Siegel & Yee in Oakland, California. The defendant, California State University Board of Trustees, is represented by Michael C. Denison of Towle, Denison, and Maniscalco LLP.

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