concurring:
I agree with each and every conclusion reached in Judge Meskill’s comprehensive opinion and with the reasoning supporting those conclusions. I write only to note my disagreement with the basis asserted for appellate jurisdiction as regards the qualified immunity defense.
The opinion for the court recites that “without addressing the issue of qualified immunity in the context of either constitutional claim asserted, the district court nevertheless denied defendants’ motion for summary judgment based on their defense of qualified immunity.” Ante at 593. It seems to me, however, that the issue of qualified immunity as a defense to the constitutional claims asserted was clearly addressed in the opinion of the district court. After referring to Dr. Dube’s “claim that he was denied tenure because of the controversy over the exercise of his constitutional right of free expression” and “his claim of the violation of his right to due process in that the same outside pressures interfered with his right to a fair hearing,” the learned district judge concluded, following a discussion of how qualified immunity operates as defense to constitutional claims: “Summary judgment is therefore denied based on the qualified immunity defense.”
In dealing with defendants’ motion for summary judgment, the district court reviewed and ruled on the qualified immunity defense to the constitutional claims pleaded by plaintiff. Accordingly, our appellate jurisdiction as regards this defense should be predicated on Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985) (denial of the claim of qualified immunity subject to interlocutory review), rather than on Musso v. Hourigan, 836 F.2d 736, 741 (2d Cir.1988) (failure to rule on qualified immunity defense subject to interlocutory review).