The opinion of the court was delivered by: Glasser, District Judge:
Plaintiff David Davis, a white male, has applied for
admission to and has been rejected from the City University of
New York ("CUNY") Law School at Queens College every year since
1983 when the school opened. He initiated this lawsuit in 1985
against various officials of the law school, the City
University of New York, and the State University of New York in
their individual and official capacities alleging violations of
the Fourteenth Amendment, Title VI of the Civil Rights act of
1964, 42 U.S.C. § 2000d, et seq., and of 42 U.S.C. § 1983 and
1985 seeking damages and injunctive relief. Since that time he
has supplemented his complaint with some 18 additional
defendants and claims of race, sex, and religious
discrimination under 42 U.S.C. § 1981, 20 U.S.C. § 1681
prohibiting sex discrimination in education programs receiving
federal financial assistance, and New York Education Law § 313
prohibiting discrimination in admission of applicants to
educational institutions. The defendants include Charles
Halpern, in his official and individual capacities as Dean of
CUNY Law School; John Farago in his official and individual
capacities as Assistant Dean of the law school; Joseph Murphy
in his official and individual capacities as Chancellor of the
City University of New York; Gordon Ambach in his official
capacity as Chancellor of the State University of New York and
as Commissioner of Education of the State of New York; James P.
Murphy in his official and individual capacities as Chairperson
of the Board of Trustees of the City University of New York;
Haywood Burns in his official and individual capacities as Dean
of the law school; Carlton Clark in his official and individual
capacities as Director of Admissions of the law school; and
various other individuals who are primarily past members of the
admissions committees who rejected plaintiff's applications.
Mr. Davis contends that defendants discriminated against him by
favoring less qualified non-white, non-Jewish, and female
applicants for admission through the use of a quota system, and
that they rejected him in retaliation for bringing this and two
prior state actions to obtain relief from this discrimination.
Now, more than three years later and after extensive
discovery by plaintiff, defendants return with this motion for
summary judgment. For the reasons stated below, it is denied in
part and granted in part.
The doors of the City University of New York Law School at
Queens College opened in September 1983. Its founders sought
then and continue to seek today an integration of the best that
"traditional" legal education has to offer with "an expansive
view of the function of law and lawyers in our current
society." 1990-1991 CUNY Law School Catalogue, at 7
[hereinafter "Catalogue"]. The curriculum has been designed to
address the limitations of traditional legal education, whose
"emphasis on private law, litigation, and on transactions
between individuals can distort students' views of what law is
and does in today's world . . .," id., and to utilize theory
and practice which can "enhance our ability to provide students
with the tools they need to best practice law in the service of
human needs." Id.
Plaintiff's interest in CUNY Law School dates to its first
semester, and was apparently due at least in part to its
"public interest" orientation, state-subsidized tuition, and
location near his home in New York City. While he says that
he's "no scholar," he feels with great earnestness that his
undergraduate grade point average ("UGPA") of 3.02, out of a
possible 4.00, and his Law School Achievement Test ("LSAT")
scores ranging from 17 to 25, out of a possible 48, qualify him
for admission and he has submitted an application for that year
and every year thereafter.
The admissions process by which he was rejected, now eight
times, is the subject of this lawsuit. Its mechanics are not
complex. Each applicant is required to fill out an application,
to write a personal statement, and to register with the Law
School Data Assembly Service through which the Admissions
Committee will receive undergraduate grades and LSAT scores.
Applicants are evaluated by either two or three members of the
Admissions Committee made up of faculty and students, who may
vote to admit, reject, or wait-list. If two members vote to
admit and none votes to reject, the applicant is offered a
seat. Likewise, two votes to reject with no vote to admit
causes a rejection. If two members are split between rejection
and admission, the application goes to a third member whose
tie-breaking vote is determinative.
The factors which the committee members are instructed to
consider in evaluating applicants are closely related to the
ideals of the law school as an institution of legal education.
They are set out in the law school's Statement of Admissions
Policy, which appears in the Catalogue, at 38, submitted by
both plaintiff and defendants:
The mandate of the City University of New York Law
School at Queens College to serve human needs
through law affects our admission process as much
as it affects our curriculum. We evaluate
applicants according to four criteria.
First, we seek people who are able to complete
the program successfully. Because the Law School's
program is intensive and intellectually demanding,
we look for demonstration of strong academic
ability, including skill at analysis, problem
solving, and research. . . .
Second, we look for indications that the
candidate has a special affinity for our
particular program. Assessment of academic ability
alone will not dominate the application process.
We will try to assess some of the less tangible
qualities that make an outstanding lawyer,
including judgment, energy, initiative, and the
ability to work both collaboratively and
independently. . . .
Finally, as an institution funded in large part
by the taxpayers of the State of New York, we seek
students who have some demonstrated connection to
the State and, particularly, to the City. That
connection may be manifested by residence, work
experience, education experience, other service to
the State and City, or a demonstrated special
concern for the solution of urban problems.
Our experience has been that we receive many
more qualified applicants than we accept. The
admission process is therefore highly selective,
and successful candidates are people who, in the
opinion of the Admissions Committee, manifest
unusual strength in more than one of these areas.
Especially relevant to the considerations of race and sex in
the admissions process is the law school's affirmative action
policy, which operates in accord with the admissions policy.
That policy is set out in capital letters on the first
substantive page of the Catalogue, and reads in its entirety:
THE FACULTY AND STAFF OF CUNY LAW SCHOOL AT QUEENS
COLLEGE BELIEVE THAT WE HAVE A RESPONSIBILITY TO
HELP CREATE A BAR THAT IS MORE DIVERSIFIED, AND
MORE REPRESENTATIVE OF THE FULL RANGE OF PEOPLES
THAT MAKE UP NEW YORK CITY AND THE UNITED STATES.
ACCORDINGLY, WE ACTIVELY SEEK TO RECRUIT, EMPLOY,
RETAIN, PROMOTE, AND TRAIN STUDENTS, FACULTY, AND
STAFF OF ALL RACES, NATIONAL ORIGINS, CLASSES, AND
BELIEF SYSTEMS, WITHOUT REGARD TO SEX OR SEXUAL
PREFERENCE. THIS COMMITMENT IS REFLECTED IN ALL
THAT WE DO, BEGINNING WITH OUR ADMISSIONS
POLICIES: WE LOOK AT THE WHOLE APPLICANT IN
ACCORDANCE WITH THE BROAD AND INCLUSIVE CRITERIA
APPROVED BY THE BOARD OF TRUSTEES OF THE CITY
UNIVERSITY OF NEW YORK, DESCRIBED IN DETAIL
ELSEWHERE IN THIS BROCHURE.
Questions regarding this policy should be referred to Acting
Associate Dean Victor M. Goode, Affirmative Action Officer
Catalogue, at 3. The law school's Director of Admissions,
Carlton Clark, in his affidavit dated October 12, 1990 in
support of this motion, sheds further light on the use of
racial criteria in the admissions process:
Because minorities and other groups are
underrepresented in the legal profession and
because of the diverse composition of New York
City and State and the Law School's commitment to
diversity in its student body, membership in
underrepresented groups is one of several factors,
such as GPA and LSAT scores, which Committee
members may consider, in determining an
applicant's request for admission.
In addition to the Catalogue and the Clark affidavit,
defendants' submissions in support of its motion include
portions of plaintiff's deposition testimony in which he states
the names of the law schools from which he has been rejected,
describes his interviews with members of the law school
Admissions Committee, and includes the following exchange:
Now, other than what you have just discussed,
have you at any point come across anything
indicating that somebody establishes a number and
says this is the number of a particular group that
we have to have? You have given me a statistical
analysis of your own as to why you think there's
one there. I'm asking you have you seen anything
where somebody says it exists.
A: Not in writing. I haven't had a chance to
depose your clients yet. After I depose them,
we'll find out what the story is.
A: I would say it's the same thing, yes, in my
Q: It's up to the judge to decide.
Colucci Aff., Exh. A., at 222-23. They also submit portions of
defendants' interrogatory responses which plainly deny any
utilization of quotas — official or unofficial — in the
selection process, and four "personal statements" submitted by
plaintiff with his applications of 1983, 1984, 1986, and 1987.
They also submit a document entitled "Preliminary Admissions
Report and Analysis, 1982-1987" prepared by Carlton Clark,
Colucci Aff., Exh. D, and some statistical data prepared in
response to plaintiff's interrogatories reflecting the racial
composition of the classes entering 1983 and 1984. Colucci
Aff., Exh. E.
In support of his claim that the plan utilizes quotas,
plaintiff has submitted pages of computer printed statistics
which portray the academic, demographic, ethnic, and gender
makeup of the law school's incoming classes. According to
plaintiff's analysis, the data reveals that the law school
consistently has admitted numbers of minority students whose
LSAT scores and UGPA have been lower than or equal to those of
plaintiff and of other white males not accepted. For instance,
in the class entering September 1986, he states that 49 of the
56 black and hispanic students had LSAT scores equal to or
lower than that of plaintiff's highest score. In the class
entering September 1987 40 of 48 black and hispanic students
had scores equal to or lower than plaintiff's highest. In the
class entering September 1988 25 of 36 black and hispanic
students had LSAT scores equal to or lower than plaintiff's
highest. And in 1989, 30 of 45 black and hispanic students had
LSAT scores equal to or lower than plaintiff's highest. It
might be noted that these figures apply to admitted students
who enrolled at CUNY, not all admitted students. Plaintiff's
Aff. at ¶¶ 31-35. He also submits through his affidavit that
the percentage of minority students at the law school is
significantly greater than the percentage at three other New
York area law schools, and higher than any other law school in
the country with the exception of the four traditionally black
law schools and the University of Hawaii.
Other data plaintiff submits suggest that the law school
admits a higher proportion of female applicants than male
applicants. For instance, he states that in 1983 56% of the
candidates who applied were male while only 48% of those
admitted were male. In 1984, 51% of applicants were male while
44% of those accepted were male. In 1985, 55% of applicants
were male while 46% of those accepted were male. And in 1989,
51% of applicants were male while 43% of those accepted were
male. Id. at ¶¶ 39-40.
Plaintiff has also submitted two series of weekly or biweekly
internal law school memoranda addressed to members of the
Admissions Committee reporting data in the categories of
applications received, candidates accepted, and seat deposits
received. Figures reported include average age, average LSAT
score, average UGPA, percentage of females, percentage of
minorities, and percentage of New York state residents. One
series of memoranda dates from February 17, 1987 through
September 9, 1987, Exh. 15 to Plaintiff's Memorandum of Law;
the other from February 4, 1988 through June 24, 1988, Exh. A
to Plaintiff's Reply Memorandum of Law.
Plaintiff also offers evidence which he contends supports his
claim of retaliation. This includes answers to interrogatories,
internal law school memoranda, notes taken by Admissions
Committee members at plaintiff's interviews, and various
letters by and to officials of the law school. He also points
to a "conflict" in Dean Clark's affidavit between his statement
that "[w]hen an applicant reapplies in subsequent years, we
make an effort to have each subsequent application reviewed by
members of the Admissions Committee who did not previously
review that person's application," Clark Aff., ¶ 14, and his
statement that he personally reviewed and voted on plaintiff's
application in 1983, 1987, 1988, 1989, and 1990. Id. ¶ 17.
also submits through his affidavit that his application for
admission to the class entering September 1985 was inexplicably
delayed until August 27, 1985, a year in which the last
applicant was offered admission on August 2. Plaintiff states
that this rejection came only after he sent a letter
complaining of the delay to Judge Sifton on August 23. In 1989,
a decision on plaintiff's application was not made until late
August as well, and only after this court admonished defendants
regarding that delay.
Defendants contend that his rejections were due neither to
discrimination nor to retaliation, but rather to his poor
qualifications and poor comparison with competing applicants.
However, they do not now, nor have they ever, challenged his
standing to bring this lawsuit; rather, they reject plaintiff's
contentions as not supported by the facts, and move for summary
judgment upon their affidavits, exhibits and memoranda of law.
Plaintiff first claims that his rejections from the law
school were the product of an admissions process which
discriminates against white males in violation of Title VI of
the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Section 601 of
Title VI states, in relevant part, that "[n]o person in the
United States shall, on the ground of race, color, or national
origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any
program or activity receiving federal financial assistance."
This provision has been interpreted to proscribe discrimination
that violates the Equal Protection Clause of the Fourteenth
Amendment. See Regents of the University of California v.
Bakke, 438 U.S. 265, 287, 98 S.Ct. 2733, 2746-47, 57 L.Ed.2d
750 (opinion of Powell, J.), 325, 98 S.Ct. at 2766 (opinion of
Brennan, White, Marshall and Blackmun, JJ.); Ayers v. Allain,
893 F.2d 732, 754 (5th Cir. 1990); Brown v. Board of Educ. of
Topeka, 892 F.2d 851, 887 (10th Cir. 1989); Detroit Police
Officers' Ass'n v. Young, 608 F.2d 671, 691 (6th Cir. 1979).
The burdens of production and persuasion in a reverse
discrimination case are set out in Johnson v. Transportation
Agency, Santa Clara Co., 480 U.S. 616, 626, 107 S.Ct. 1442,
1449, 94 L.Ed.2d 615 (1987). First, plaintiff bears the burden
of stating a prima facie case that race or sex has been taken
into account in the selection process. Second, the burden
shifts to the decision-maker to articulate a nondiscriminatory
rationale for the decision. In Johnson, it was held that "[t]he
existence of an affirmative action plan provides such a
rationale." Id. Third, if an affirmative action plan is
articulated as the basis for the decision, the burden ...