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DAVIS v. HALPERN

June 5, 1991

DAVID DAVIS, PLAINTIFF,
v.
CHARLES HALPERN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Glasser, District Judge:

  MEMORANDUM AND ORDER

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.

In 1987 this court rejected defendants' motion to dismiss for failure to state a claim upon which relief could be granted. While defendants urged the court that their admissions policy did not utilize a quota system for women or minorities and fully complied with the requirements of Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), this court ruled that plaintiff's allegations were sufficient to state a claim, and that a Rule 12(b)(6) motion did not afford the court the opportunity to consider evidence regarding the actual operation of the admissions process.

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.

FACTS

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. . . .
    Third, we try to select a diverse group of
  students, genuinely representative of the
  remarkable diversity of the City the School
  serves. We address our mandate in part by seeking
  students who would

  otherwise be unable to attend law school, or who
  are members of populations that have traditionally
  been underserved by the law.
    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.

Clark Aff., ¶ 19.

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:

Q: . . .

    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.
  Q: Is their unofficial quota also the same thing
  as you have referred to in the

  case as holding seats or setting aside seats for
  minorities?
  A: I would say it's the same thing, yes, in my
  opinion.

Q: And —

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. Plaintiff 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.

DISCUSSION

Title VI

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 ...


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