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09/05/91

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State appellate court upholds Stanford in Davies case

STANFORD -- The California Court of Appeal has upheld a summary judgment in favor of Stanford University in a lawsuit brought by a history professor denied a permanent appointment at Stanford in 1986.

In a Sept. 3 decision, the appellate court affirmed the December 1989 decision of Santa Clara County Superior Court Judge James W. Stewart. Stewart ruled that there was "no triable" issue in the case brought by Norman Davies. The appellate court rejected Davies' claim of "political" discrimination and also his claims for breach of contract and misrepresentation.

Davies alleged he was denied a faculty position because certain professors disagreed with his views on the Polish resistance to the German occupation of Poland and subsequent annihilation of Polish Jews during the Second World War.

Davies' works have been criticized at Stanford and elsewhere, by such experts as Lucy S. Dawidowicz (author of The War Against the Jews: 1933-1945) who said they felt Davies minimized historic anti- Semitism in Poland and tended to blame Polish Jews for their fate in the Holocaust. Davies' supporters contend that Poles suffered as much as Jews did in the war and could have done very little to save any of the 3 million Jews living in Poland at the time of the Nazi invasion in 1939.

Davies had sought $3 million in damages from the university for what he called fraud, misrepresentation, breach of contract, discrimination and defamation.

Davies came to Stanford from the University of London as a visiting professor in 1985-86 to be considered for a $70,000 tenured position in the history department.

In January 1986, the department voted, 12 to 11, against recommending Davies for the tenured post. (A favorable departmental vote would have sent the recommendation on to the School of Humanities and Sciences for approval or rejection by the dean, and then on to the provost.)

After the vote, Davies asked for a formal university review under the procedure in the Statement of Academic Freedom in the Faculty Handbook. Provost James N. Rosse provided Davies an informal review as a courtesy, but stated that the Faculty Handbook procedure does not apply to visiting professors; both the superior and appellate courts upheld that position.

The appellate court ruled that "visiting professors, even those visiting professors under consideration for permanent appointment, are not members of the Academic Council pursuant to the terms of the Handbook. Therefore, Davies was not entitled to utilize the grievance procedure for the alleged violation of Stanford's Statement on Academic Freedom."

The court also wrote that "from what appears in the record, the basis of the decision against Davies was not his political outlook or views, but rather the manner and substance of his academic interpretation of historical events occurring some 40 years earlier. This can hardly be called discrimination based on Davies' political views."

The court also dismissed Davies' claim that Stanford violated certain California Labor Code provisions guaranteeing him the right to be free from political discrimination.

His views on the Polish response to the Nazi onslaught "clearly were not 'political activity' within the meaning of the Labor Code provisions," the court wrote.

Stanford was represented in the Davies case by Steven L. Mayer and Jerome B. Falk Jr. of the firm of Howard, Rice, Nemerovski, Canady, Robertson and Falk.

"We are very pleased with the Court of Appeal's decision," Mayer said.

"Professor Davies has never produced any evidence in five years of litigation that the decision not to grant him an appointment was based on improper discrimination. The Court of Appeal's decision confirms the right of a university to make decisions on faculty appointments based on academic criteria even in fields that some might characterize as 'political.' That is all Stanford did here, as the Court of Appeal has now held."

Iris Brest, associate general counsel for Stanford, said "The university is deeply pleased that the Court of Appeal affirmed the lower court's dismissal of the action."

Brest said that Davies could seek a rehearing by the appellate court, a review by the State Supreme Court, or both, but that the courts did not grant them automatically.

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