the if a bunch of university attorneys were sitting around trying to interpret this language this provision of the sunni trustees policies and there their writing on a blank slate then it would be impossible for them to maybe try and swi that excuse me as they were constructing their theory of the case they could have said ok this is a case of first impression let's just you know take our best shot and interpret it in a way that is favorable for us the problem is that they were not writing on a blank slate the universities had a a an interpretation of this provision of the sunni trustees policies that goes back at least to the early one nine hundred seventy s and over the years they formalized their interpretation of this policy in the form of faculty bylaws faculty contracts faculty personnel policies and most importantly repeated certifications to the a b a let me just read the language since since we're focusing on just to make sure we're on the same page the language is the renewal of term provision in the sunni trustees policies and it says no term appointment of itself shall be deemed to create any manner of legal right interest or expectancy in any other term appointment or or renewal and so the question before the court is what does the of itself clause mean in this language district court's ruling was that it means nothing that the that the language would me that the meaning of this provision would be exactly the same with or without of itself i think the correct answer and really the only answer is that of itself is a condition that modifies the rest of the sentence and that it shows that the university allows itself to add whatever rights interests and expectations it deems necessary for the best interests functioning of the institution and if you think about it there's no reason why soon you would not allow itself to offer process at the end of that three years for a term renewal and i'm just i'm just pointing out that there are two clause there's two sets of language that year five any and you're just emphasizing  right to due process at the end of the three year term i think there's another factual issue that's that's mingled in here that may be confusing this because you have knowledge you have a right to due process if you have no right t just an extension that's what i'm getting at now i'll just go back to to two thousand and nine when former dean olson was writing my contract b a b rule at the time and it's still the rule that says that the clinical professors must receive a presumptive must receive presumptively renewable term contracts of the length of at least five years of conflict between the regular new york regulation and it wasn't really  it wasn't really like serious conflict it was it was a conflict that dean also because the the a b a was coming in and april two thousand and nine and he wanted it finished the two to see whether you know in case the a b a focused on the three versus five year term  said let's try saying we're going to give you a three year contract with a mandatory two year extension and that way the a b a will be happy and we won't be technically violating the so that was something that was an add on  it was a nice try but not successful well the question here i'm not even disputing because that wasn't for me that was for dean olson and to shout to the a b a i didn't ask for this but i didn't see any reason why i could object to saying two years the question here the extra two years the question is is whether that sever a ball from the rest of the contract demon to his position was you have no contract at all at the end of the three years i'm not going to recognise the two year extension and i'm taking everything away you have absolute no rights at all this void contract and i don't think that you know the intention of the parties was could remotely be between me and dean also and to say all or nothing i want five years or no contract at all that was simply an attempt by the on the other hand the fact that he didn't force it forces us to look at the regulation exactly i'm not i'm not disputing that because there's two parts to this if i can just go through the different pretext that the only reason this argument is still in front of this this issue is don't fire the court is that there what they've been throwing up over the past nine years they've thrown a lot of different pretexts like spaghetti against the wall and this is the only one that's still sticking but when he originally turned terminated my appointment the letter terminating me said that the reason i was being terminated was that my job was a limb and i hated when the first year legal research and writing program was replaced by the first year legal analysis writing and research program l r w was replaced by l a w r and so that was the reason why he claimed he was terminating me that's his sort of gone away his second pretext was that i'm not really a clinical professor but i was a clinical and pastor because i was teaching primarily  and directing the legal writing program and teaching other courses by didn't have any teaching assignments and a claim so he says you're not a clinical professor not in play excuse me are you are you making a discrimination client i don't think there's any the earlier part of this case the first part of this case was was an anti union animists claim brought by the union at her and that was a claim for retaliation what is pretext got in there were i mean i mean the point is that you have spaghetti on the wall and like this was not their original reason this was not their original reason for why i was terminated this came up much later in the case this was not even at issue in the motion to dismiss in front of judge or kara so what process do you believe you  due that you did not receive under the faculty byelaws in the clinical faculty appointments a policy before the team can terminate a clinical professor he has to bring evidence of good cause to the faculty didn't want to give me the two year extension and he thinks he can get that by the a b a with just a three year term that's fine with me it didn't matter to me whether my contract came up for renewal in two thousand and nine or two thousand and eleven i'm just saying that when my contract expired if you a requirement to a three year term from the president of the university does not provide any expectation of renewal but it does not preclude the university the law school and ing contracts or rules  general application in the form of faculty bylaws clinical policies to conform with a b a standards that provide due process at the end of every term and a good cause standard of review well and that's what i'm claiming is your property interest at the time what would your property interest be at the time of the due process hearing and with you having kept out three years you have to disagree with the with the capped out term it's a long term contract expectation was at the end of the three year term it would be presumptively renewable and what my property interest is was in those due process rules i mean it's not an absolute entire don't we're just saying that you do have a legal right after the three years yes i'm saying that i have a right to due process stating that no term of appointment shall be deemed to create any manner of legal right interest or expectancy in there in the city of itself of its and the of itself is a condition that allows the university to a war or to create a property interest based on two process and a good cause standard view because and no technique professor has an absolute in title meant to proper to property interest in employment for the rest of their lives what you get is a property an entitlement that is based on on good on satisfactory performance and good personal conduct it can be revoked at any time the point is e good afternoon your honour's jeffrey lying in behalf of the trustees policies are very clear which are there's a three year term if it's not renewed it expires automatically you heard  of that was within the university's control your honor that's simply incorrect the trustees policies are very clear which is that a term appointment which is what mr malkin had expires after three years and there's no interest in any right appointment does not convey such an interest yes is that if you have a term appointment and an added to that is by the way we also have these due process rules and various other protections for a college to extend a term appointment beyond three years and sunni's interpretation of its own regulations are entitled to deference and that interpretation is very reasonable because if you think about it if you could if a college which is bound by the trustees rules could extend a term appointment indefinitely make it four years make it five years make it six years then what would be the point of saying that term appointments are limited to three years it would open literate the difference between term appointments and continuing appointments and it would allow the college to extend tenure to a faculty member under the guise of a term appointment just by making that term appointment presumptively really renewable and to have non renewal not non oo ability only for good cause and sunni does not interpret its own regulations to allow and does not interpret that language the of itself language to allow a college to extend a term appointment in in that manner so as to create a property interest that would be contrary to the entire intent of the regulation and you know i would also say that you know there's a line of cases that we cited on page pages thirty two to thirty three which say that state written laws and regulations create property interests and and parties through mutual understanding can't supersede those rules to create rights precluded by those policies but it wasn't successful and in fact dean olson said that he could not supersede the trustees policies and so when dean matua came into became dean of the law school he looked at this cotton the the rights that were purported to be conveyed in this contract and said well this is this is contrary to the trustees policies and the second point is that under the trustees policies only the chief administrative officer of the college can renew a term appointment and here the it was the end that's the president of suny buffalo not the dean of the law school and here the president of suny buffalo did renew mr malkin's term appointment he gave him an additional three years that expired in august two thousand and nine and that was in accordance with the trustees policies so again dean alston had no power was the president of suny buffalo the university decided not to renew for another three years no because non renewal just happens automatically know when you have to make a decision to renu firmat precisely it and let me also just address that there is no tradition of giving presumptively renewable contracts there's no mr malcolm has pointed to no examples of such contracts the law school he's talking about a an alleged practice at the law school even if there were such a practice it wouldn't be you know valid because as you know in the cases from this court that we cited say that any type of customs that are contrary to  regulations can't supersede those regulations and so nothing the law school could do would supersede the very clear trustees policies on these points but in fact to all and there's nothing in the law school bylaws that says anything about presumptively renewable term appointments which again is contrary to the trustees policies or five year appointments which is again contrary to the three year cap on the term appointments and all that the all that the law school bylaws do is establish a committee on clinical promotion which is entitled to make a non binding recommendation to the dean as to whether or not a faculty member under a term appointment should be renewed but as dean would do a test defied if if the dean has already made up his or her mind about whether a renewal is appropriate there is no need for the dean to seek that recommendation so but it is this court i believe doesn't need to even reach that issue but the fact is that mr malkin had no entitle it to the process that he claims to have been entitled to because all the process that he was doing well he got all the process he was due in the sense that he simply did not have a property interest in a second term after the expiration of the process working doing he wasn't due any process he was not entitled to a third term after the expiration of his his second term  and dean matua was also under no requirement to seek the recommendation of this committee when dean when the dean had already decided that he wasn't going to read that that he wasn't going to  renew to renew the term and i would add that in fact mr malkin in his response to me to a statement of material facts didn't even content you know agreed with this point about the process that that he was and i have nothing further unless the court has twenty sixteen i was last year was their most recent one but the one that's in the record of this case is why all these events were going on they were in front of the a b a and they told the a b a exactly the opposite of what the solicitor general is telling you they said that they offer presumptively renewable term contracts with due process that protect the academic freedom of their clinical professors is a core accreditation standard and it is certainly before i said no but it's evidence at the evidence is the evidence quarrel with them is their right for to track down who said what and give you some really it's in the record and the reason it's in the record isn't because i'm saying that the law school is bound by it certification policies per clude presumptively renewable long term contracts that simply as a fact not true unless you want to allow the law school to tell one story to the a b a and one one story to its contract in fact that faculty bylaws that provide the due process procedures are still in place in the law school's web page to this very day and so on and so they just have to completely conflicting stories out there and i'm saying that this is just a lie i mean this case has been riddled with fraud going back to dean mattoo who's perjury and the representation of the attorney general about the university's policies which simply is not true i mean the evidence is that it's not true that there that they have that they just made this up