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August 17, 1976

Kenneth HUPART et al., Plaintiffs, Individually and on behalf of all others similarly situated

Frankel, District Judge.

The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

Asserting claims under the Constitution, federal civil rights statutes, and New York's Education Law, *fn1" the plaintiff class *fn2" alleges that its members were unlawfully denied admission to the Biomedical Program of the Center for Biomedical Education of the City College of New York for the 1974 academic year. The complaint charges, inter alia, that the defendants intentionally discriminated against Caucasian and Asian applicants on racial grounds, and, more specifically, had a predetermined quota for Black and Hispanic applicants. Plaintiffs seek (a) to be admitted to the Biomedical Program, (b) monetary damages, and (c) a variety of other injunctive and declaratory relief. Named as defendants are the Board of Higher Education of the City of New York, the City College of the City University, the Center for Biomedical Education of the City College, *fn3" Robert E. Marshak, the President of City College, Alfred Gellhorn, the Director of the Center for Biomedical Education, Robert J. Kibbee, the Chancellor of the City University, and Alfred Giardino, Chairman of the Board of Higher Education.

 Trial on the issue of liability commenced on May 10, 1976, and was completed on May 14, 1976. *fn4" The following are the court's findings of fact and conclusions of law.

 Findings of Fact

 I. The Detailed Story Prior to 1974

 The defendant Board of Higher Education is the corporate entity charged with governing and managing the public school system of New York City at the collegiate level. N.Y. Educ. Law § 6201 (McKinney 1972). The defendant City University is the name under which the Board administers the educational units within its jurisdiction. Id. at § 6202(1). The defendant City College is among those units. The Faculty Senate is the governing body of the College. The Center for Biomedical Education is an interschool program within the College.

 The Center for Biomedical Education was created by resolutions of the Faculty Senate and the Board of Higher Education adopted on November 21, 1972, and November 27, 1972, respectively. The major objectives of the Program and its anonymous benefactors were to (1) educate and motivate young people to serve the under-served urban community as primary care physicians, (2) encourage and motivate minority students and women to enter medical careers, and (3) provide students with faster entry to and movement through medical school. *fn5" The idea for the Program was largely that of Dr. Robert E. Marshak, who was appointed President of City College in September 1970. He appointed Dr. Thomas Haines, a professor of biochemistry at the College, as the Biomedical Center's Acting Director. On January 1, 1974, Dr. Alfred Gellhorn, the former Dean of the Medical School of the University of Pennsylvania, was appointed permanent Director.

 On December 5, 1972, the Faculty Senate met and created the Admissions Committee and the Policy and Planning Committee to oversee the development and operation of the Biomedical Program. The members of both committees are selected by various College personnel according to a formula adopted by the Senate. Pursuant to that formula, the members are drawn largely from the College faculty and the local medical community. The Chairman of an Ethnic Department and an officer of Ethnic Program Planning and Development serve on both committees.

 At the same meeting, the Senate adopted the following resolutions:

"RESOLVED, That the Program is for academically qualified students, including a very substantial number of minority students and women." *fn6"
"RESOLVED, That entry into the Program will be dependent on students having met academic qualifications to be defined by the Admissions Committee. Students may be admitted on a probationary basis with certain course deficiencies if deemed to have the necessary broad qualifications."

 There was also some discussion as to whether admission quotas should be established for "minority students," defined as Black, Hispanic, and Asian, in accordance with the definition used by the United States Department of Health, Education & Welfare. It is unclear whether these discussions ever culminated in a formal proposal put to a vote, but it is clear that the idea was never adopted by the Senate.

 The 1973 Admissions Committee was chaired by Professor Robert P. Goode. At its meeting on January 8, 1973, the Committee "rejected after much discussion" the "principle that 50% of each category of admission to the program should be Black, Puerto Rican or Asian * * *." Proceeding under rather ill-defined standards, the Committee made its selections "on the basis of academic ability and social commitment." Interviews commenced in February, and did not end completely until July.

 At the conclusion of a meeting on March 29, 1973, the Committee had selected 63 students, ranked in order of preference, for possible admission to the 1973 Biomedical Program. *fn7" Based upon 15 guaranteed places in various medical schools, the Admissions Committee recommended to the Policy and Planning Committee that no more than 35-40 invitations be extended. *fn8"

 Apparently responding to complaints that minority candidates were not being fully and fairly considered, the Policy and Planning Committee "asked for a report from the Admissions Committee prior to actual admissions * * * to examine for academic and ethnic breakdown." The Admissions Committee thought "this was inappropriate and objectionable * * *." It did not immediately comply with the request, but eventually supplied the desired data on the 63 students in a report dated April 30, 1973.

 The "ethnic profile" provided to the Policy and Planning Committee showed that of the 30 top-ranked candidates, two were Black, seven Hispanic, seven Asian, and 14 Caucasian. Of 33 alternates, five were Black, four Hispanic, five Asian, and 19 Caucasian. When the ethnicity figures became public, several Black groups demanded that Blacks comprise at least half of the students admitted to the Program in 1973 and thereafter. *fn9" Dr. Haines, in a letter dated July 27, 1973, to Mr. Richard Parrish, Chairman of the American Federation of Teachers Black Caucus, reported that the final composition of the candidates admitted to the 1973 Program was 15 Blacks, 14 Latins, 9 Orientals, and 29 "others." *fn10" At the very least, then, eight additional Blacks and three additional Hispanics were invited to the Program after the Admissions Committee made its initial selection of 63 candidates. *fn11"

 There was some ill feeling between Professor Goode and Dr. Haines. Professor Goode, in a letter to President Marshak dated May 30, 1973, with a copy to Dr. Haines, complained that the latter, in the May meeting with community leaders, had "attempted to place the onus for the low numbers of black students on the Admissions Committee and implied that there would be a significant increase of black students upon review of the latest number of previously incomplete applications." He went on to say that "[in] the absence of a clear directive from the Acting Director or the Policy and Planning Committee, the Committee will continue to use the same criteria of academic proficiency and social commitment it has used in the past." Dr. Haines, in a letter to Professor Goode dated June 21, 1973, with a copy to President Marshak, praised the work of the Admissions Committee, but lamented that more Blacks had not been admitted to the Program, adding that he did not think this was the Committee's fault and hoped "that our recruiting and other efforts will improve black input in future years!"

 1974 Admissions

 Professor Philip Baumel, a member of the 1973 Admissions Committee, was unanimously elected Chairman of the 1974 Committee at its first meeting on December 7, 1973. *fn12" At that same meeting, the Committee discussed what had been done in 1973 and what the admission practices and procedures should be for 1974. The minutes of the meeting list the following items, among others, under the heading " Procedures":

 "c. A mechanical process of sorting out majority students with averages below 85.

 "d. Keep minority students separate for a subcommittee to review and examine documents for admissability.

 * * *

 "h. Minority students list divided up into two groups among subcommittee, yes or no, to be interviewed."

 The following appeared under the heading "Proposal":

"In interviewing minority students one member of the interviewing committee should be of that same minority group, whenever possible. A clear objective of the Committee."

 Professor Baumel testified that the items listed under the first heading were merely questions "asked of and by members of the Committee" during the meeting. "[In] most cases [there was not] any serious discussion leading to a conclusion." According to Baumel, none of the so-called "procedures" was ever adopted by the Committee, but the proposal to pair minority candidates with one interviewer of the same ethnic background was adopted and carried out.

 The Policy and Planning Committee, at its November, December, and January meetings, discussed admission policies for the 1974 class. This Committee was chaired by Dr. Haines; several of its members also served on the Admissions Committee. It was the task of the Policy and Planning Committee to set admission "policies," leaving the establishment of "procedures" to the Admissions Committee. Among the policies adopted were: (1) no one over 26 years of age should be admitted, (2) students otherwise qualified, but deficient in mathematics, should be admitted, but such students should not exceed 20% of the class, and (3) no students, other than SEEK students, *fn13" who had taken more than four college credit courses, should be considered for admission.

 Some time in January or February, an interview form was designed by Professor Baumel, Professor Theodore M. Brown, a professor of history at City College and Assistant Director of the Biomedical Center, Dr. Gellhorn, and possibly Dr. Haines. The form contained nine criteria on which each candidate was to be rated from 1 to 10, the average applicant being a "5," and no one a "0." *fn14" There was also a space for an overall comment. Of the nine criteria, eight related to non-academic characteristics. For example, Criterion No. 1 was "Motivation for urban medicine;" Criterion No. 7 was "Degree of commitment to extracurricular socially oriented activities;" Criterion No. 9 was "Suitability for our curriculum on Academic Considerations."

 A file folder maintained on each applicant contained (1) a two-page form on which the applicant filled in certain background information and wrote an essay about tentative professional plans, (2) a high school transcript, (3) scores on the Regents Examinations and Scholastic Aptitude Tests, where available, (4) three letters of recommendation, and (5) the completed interview form. There was no space on the application form to designate racial or ethnic background, and no photograph was initially requested. However, if the Committee decided to interview an applicant, he or she was sent a letter scheduling the interview and requesting a small photograph.

 Approximately 1287 applications were received for the 1974 academic year. They were first reviewed by the Associate Registrar of City College, William DiBrienza, to check whether the applicant met the technical requirements, such as age and previous education. About 50 applicants failed to meet these requirements and were eliminated from further consideration.

 Responding to requests by several members of the Admissions Committee, Mr. DiBrienza attempted to categorize the applicants according to their respective racial backgrounds by looking at name, high school attended, address, and extracurricular activities. He, or someone on his staff, prepared three memoranda, dated January 2, 8, and 10, showing the number of completed applications by White, Black, Spanish, and Asian students. The figures contained in the January 8th memorandum were announced by Dr. Haines at a meeting of the Policy and Planning Committee on January 10, 1974. Mr. DiBrienza, who attended most, if not all, of the meetings of the Admissions Committee, reported these running racial counts to that committee as well.

 The remaining 1250 applications were screened by two three-member subcommittees of the Admissions Committee to eliminate "clearly unqualified" applicants. Applicants were rejected at this stage chiefly because of (a) a low high school average *fn15" or (b) demonstrated lack of serious interest in the Program. *fn16" 599 candidates survived this stage and were scheduled for interviews. *fn17"

 The interviews of these remaining candidates began in mid-February and continued through the last week of March. They were conducted by approximately eleven two-member teams. *fn18" At the conclusion of each interview, the interviewers, usually jointly, ranked the applicant on the nine admission criteria and made a recommendation of some sort. *fn19" The file folders were returned to Associate Registrar DiBrienza, who eliminated those students who had been "clearly rejected" by the interview teams, as determined by the interviewers' comments and rankings.

 The Admissions Committee met on several occasions to discuss the applicants who had not been rejected by the interviewers. At the early meetings, a member of each interviewing team "presented" the team's applicants for full Committee consideration. After discussion, applicants were either eliminated from further consideration or placed in a tentative accept category. Applicants who had not been eliminated were rediscussed and reconsidered at successive meetings. By the time the Committee met on March 20th, the remaining candidates were being sorted into one of four categories, "Yes," "No," "Hold," or "Math Hold." *fn20" When the Committee held its final meeting on March 28th, approximately 260 applicants remained. The plaintiffs' statistical expert submitted an affidavit stating that the "interview survival rates" were not significantly different across racial groups.

 The full Admissions Committee met for the last time on March 28, 1974. The meeting was held at the Columbia Faculty Club; it began about 6:00 p.m. and was adjourned shortly after 10:00 p.m. The Committee's task was to determine finally which candidates were to be offered admission into the Program, so that their names could be submitted to the City University's Application Processing Center for the next day. The format of this final meeting was essentially the same as that followed at the March 20th meeting. That is, one of the two interviewers "presented" each of the remaining interviewees to the full Committee; after discussion, some consensus was reached, though apparently never by a formal vote, to put each applicant into one of the four categories.

 Before the meeting began, each member of the Committee was given a worksheet, prepared by Dr. Gellhorn's Administrative Assistant, which listed each of the remaining candidates. *fn21" The worksheet was divided into several columns, including one headed "Race." There were also columns for various academic data and one headed "[Interviewers'] Most Important Comment, If Any." Most of the information called for had been typed in prior to the meeting by secretarial personnel of the Biomedical Center. The worksheets used by Professor Baumel, *fn22" Dr. Gellhorn, and Mr. DiBrienza were introduced into evidence at trial. The racial identification for some candidates was blank; in other cases, it was handwritten in at the meeting as the information became known during discussions. As each candidate was "categorized," Professor Baumel, Dr. Gellhorn, and Mr. DiBrienza kept track of the Committee's decision under the "Most Important Comment, If Any" heading.

 By some time before 10:00 p.m., the Committee had discussed each of the 260 applicants. At that point, 94 students were in the "Yes" category *fn23" and between 84-100 others in one of the two "Hold" categories. Dr. Gellhorn announced that the Center could not accept more than about 65 students, and that no more than 70 invitations should be extended. *fn24" At about the same time, the Committee was informed that the Faculty Club was ...

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