defendant's motion to dismiss the Title VI claim is denied.
Because, however, no similar issue remains as to their use of
sex in the admissions process, the motion is granted as to all
claims of sex discrimination under Title 42, United States
Code, and 20 U.S.C. § 1681.
With respect to the claim under § 1981, which prohibits
discrimination violating the Constitution interfering with an
individual's right to make contracts, at no point in this
motion did defendants argue that that right does not embrace
the conduct here. It suffices to say at this point that the
Supreme Court has made it clear that § 1981 will support a
claim of reverse discrimination. McDonald v. Santa Fe Trail
Transportation Co., 427 U.S. 273, 295-96, 96 S.Ct. 2574,
2585-86, 49 L.Ed.2d 493 (1976). See also Holland/Blue Streak v.
Barthelemy, 849 F.2d 987, 989 (5th Cir. 1988); Al-Khazraji v.
St. Francis College, 784 F.2d 505, 519-20 (3d Cir. 1986)
(Adams, C.J., concurring). The motion as to this claim is
Section 1983 proscribes conduct under color of state law
which deprives a plaintiff of a right guaranteed by the federal
Constitution or laws. Defendants have never contested that
state action exists here, and this claim, therefore, withstands
this motion as well.
The § 1985 claim is more problematic as at least one court
has held that § 1985(3) (which I assume is the subsection
plaintiff had in mind) which prohibits conspiracies to violate
a plaintiff's civil rights, does not embrace reverse
discrimination of the type complained of here. Marsh v. Bd. of
Educ. of the City of Flint, 581 F. Supp. 614, 617-18 (E.D.Mich.
1984), aff'd without op., 762 F.2d 1009 (6th Cir. 1985),
vacated on other grounds, 476 U.S. 1137, 106 S.Ct. 2240, 90
L.Ed.2d 688 (1986). However, this argument has not been made
here, and the issue has not been briefed. Nor has it been
argued that defendants' conduct would not be proscribed because
it lacks the conspiracy or some other element of the statute.
See United Brotherhood of Carpenters and Joiners of America,
Local 610 v. Scott, 463 U.S. 825, 828-29, 103 S.Ct. 3352,
3355-56, 77 L.Ed.2d 1049 (1983). This claim will not,
therefore, be dismissed at this time.
N.Y. Education Law § 313
Defendants argue that the claims under New York Educ. Law
§ 313 should be dismissed because the law authorizes no private
right of action. Section 313 prohibits educational institutions
in New York from engaging in admissions practices which
discriminate on the basis of race, color, sex, religion, creed,
marital status, age, or national origin. It also explicitly
describes the procedure an aggrieved person must follow to
obtain relief under the statute, which begins with filing a
petition with the Commissioner of Education. Claims the
Commissioner finds probable cause to credit are pursued
informally by him or formally through his complaint to the
Board of Regents. § 313(5). The statute provides for judicial
review of the determination of the Board of Regents, by request
of the Board of Regents, § 313(6)(a), or by any person
aggrieved by a decision of the Board by proceeding under CPLR
Article 78. § 313(6)(b). The New York courts have not spoken on
the issue of whether there is a private right of action under §
313, but in view of the explicit designation of remedies and
procedures, this court will not imply one. See Transamerica
Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 19, 100 S.Ct. 242,
247, 62 L.Ed.2d 146 (1979) ("it is an elemental canon of
statutory construction that where a statute expressly provides
a particular remedy or remedies, a court must be chary of
reading others into it."). Plaintiff's claims under Educ.Law §
313 are therefore dismissed.
Official Capacity Defendants
Defendants also move for dismissal of all claims, other than
those asserted under Title VI, brought against them in their
official capacity on the ground that they are barred by the
Eleventh Amendment. After much evolution that amendment now
embodies the rule that "a suit by private parties seeking to
impose a liability
which must be paid from public funds in the state treasury is
barred." Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347,
1356, 39 L.Ed.2d 662 reh'g denied, 416 U.S. 1000, 94 S.Ct.
2414, 40 L.Ed.2d 777 (1974). This rule contemplates actions
against individual officials when the state itself is not a
named party but is the real party in interest. Ford Motor Co.
v. Department of the Treasury, 323 U.S. 459, 464, 65 S.Ct. 347,
350-51, 89 L.Ed. 389 (1945).
The court has no reason to doubt that the New York statutory
scheme would require the damages plaintiff seeks to be paid out
of the state treasury. See Ritzie v. City University of New
York, 703 F. Supp. 271 (S.D.N.Y. 1989). Dismissal is thus
appropriate as to the claims for monetary relief against
official capacity defendants other than those claims under
Title VI. As for the Title VI claims, while defendants have not
moved against them on grounds of immunity, the court notes that
Congress has expressly abrogated the states' Eleventh Amendment
immunity for "violations [of Title VI] that occur in whole or
in part after October 21, 1986." 42 U.S.C. § 2000d-7(b) (Supp.
1987). However, prospective injunctive relief is available
against state officials violating federal law, Ex parte Young,
209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and dismissal
is not, therefore, ordered as to claims for such relief.
Claims against Victor Goode
Defendants' Memorandum of Law seeks dismissal of the claims
against Victor Goode based on an absence of his participation
in any denial of admission to plaintiff. Counsel refers to an
Affidavit of Victor Goode, but no such affidavit was received
by the court. Summary judgment as to these claims is therefore
denied at this time.
Claims against Education Chancellor Murphy
Counsel argues that there are no allegations of involvement
in discrimination by Chancellor Murphy. This is incorrect.
See Supplemental Complaint filed July 7, 1988, ¶¶ 27-51. As no
evidence has been submitted disputing or demonstrating his
involvement in the admissions policy or process, summary
judgment as to these claims is denied.
Claims against Commissioner Ambach
No specific evidence has been submitted by either party as to
the involvement of Commissioner Ambach in the admissions
process at CUNY Law School. While counsel for defendants states
in his brief that "[plaintiff] has no evidence whatsoever
implicating the Commissioner in any wrongdoing," Defendants'
Memorandum of Law, at 19, and this appears to be true as far as
it describes what has been submitted in connection with this
motion, this statement alone does not carry defendants' burden
of demonstrating, in light of the allegations against the
commissioner, that no material issue of fact exists as to his
liability. Summary judgment as to the claims against him is
The Retaliation Claim
Plaintiff also alleges that the law school retaliated against
him for his having brought this and other lawsuits against
them. Although Title VI does not explicitly provide either for
a private right of action for discrimination or for
retaliation, a majority of the Supreme Court has held that a
private right of action exists under Title VI, see Guardians
Ass'n v. Civil Service Comm'n of the City of New York,
463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983), and a federal
regulation, 34 C.F.R. § 100.7(e) (1990), prohibits retaliation
against one who attempts to enforce his rights under the
Intimidatory or retaliatory acts prohibited. No
recipient or other person shall intimidate,
threaten, coerce, or discriminate against any
individual for the purpose of any right or
privilege secured by section 601 of the Act [Title
VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d],
or because he has made a complaint,
testified, assisted, or participated in any manner
in an investigation, proceeding or hearing under
While research has found only one case interpreting this
section, Paisey v. Vitale,