to assume that it did fall within the exception, and thus qualified immunity should be applied. The court views the situation differently.
Defendants confuse the question of fact (whether the situation at hand provided that the release of the list fell within FERPA's emergency exception) with the question of whether the decision to release the list was objectively reasonable. It is not inconsistent for the court to find that whether an emergency existed is a question of fact for the jury while at the same time finding that the defendants are not entitled to qualified immunity. To show that the defendants are entitled to qualified immunity in this situation, they would have to show that based upon their knowledge at the time of the incident, it was reasonable to assume that an emergency situation existed which was sufficient to overcome FERPA's prohibition on the release of non-directory information in light of the fact that the emergency exception is to be "strictly construed". 33 CFR § 99.36(b).
The court finds that the defendants have not met this burden of proof and that a reasonable college official, construing FERPA's emergency exception narrowly, as required by law, would have refused to release the list. Thus, the court stands by its original determination that qualified immunity does not apply to defendants Wilson and Hunt in regard to their alleged FERPA violation.
Furthermore, although the court is obviously bound the precedent set in Weg v. Macchiarola, 995 F.2d 15 (2d Cir. 1993), the Weg holding does not require a finding of qualified immunity in this case. In Weg the Second Circuit Court of Appeals stated that, "public officials do not lose a qualified immunity when their conduct is reasonably based upon the language of a statute even though some attorneys, trial courts, or even intermediate appellate courts have ruled otherwise." Weg, 995 F.2d at 18. However, this court finds that the conduct of the defendants was not reasonably based on the language of the statute. Based on the facts established thus far in the case, it is not clear that FERPA's emergency exception can be easily read to cover this situation. If that were the case summary judgment would have been granted. It is exactly that issue which must be decided by the jury. Thus, the defendants cannot rely on the fact that their conduct was reasonable under the statute to support a finding of qualified immunity. To hold otherwise would ultimately allow qualified immunity to bar a FERPA claim from reaching the jury any time a question of fact remained as to the existence of an emergency.
E. Refusal to Dismiss 42 U.S.C. § 1981 Claims
Defendants argue that the court's decision not to dismiss plaintiffs' claims under 42 U.S.C. § 1981 was incorrect. Defendants argue that the elements of a § 1981 claim are the same as those necessary to set forth an equal protection claim under the fourteenth amendment. Thus, because plaintiffs failed to allege specific situations where a similarly situated non-minority group was treated more favorably the § 1981 claims must fail.
The law is clear that in order to state a claim under § 1981, the plaintiffs must plead facts which establish that defendants' actions were racially motivated and purposefully discriminatory. General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391, 102 S. Ct. 3141, 3150, 73 L. Ed. 2d 835 (1982); Albert v. Carovano, 851 F.2d 561, 571 (2d Cir. 1988). It is equally well settled that "a complaint consisting of nothing more than naked assertions, and setting forth no facts upon which a court could find a violation . . . fails to state a claim under Rule 12(b)(6)." Martin v. New York State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978). For that reason complaints which have simply alleged in a conclusory manner that, for example, a plaintiff was terminated from his job due to his race, have not survived a Rule 12(b)(6) motion. See, e.g., Birnbaum v. Trussell, 347 F.2d 86 (2d Cir. 1965).
The key question in examining the sufficiency of a claim based on § 1981 is whether "plaintiffs assembled specific facts adequate to show or raise a plausible inference that they were subjected to race-based discrimination." Dartmouth Review v. Dartmouth College, 889 F.2d 13, 17 (1st Cir. 1989). "Under § 1981, the events of the intentional and purposeful discrimination, as well as the racial animus constituting the motivating factor for the defendant's actions must be specifically pleaded in the complaint to withstand dismissal under Rule 12(b)(6)." Yusuf v. Vassar College, 827 F. Supp. 952, 955 (S.D.N.Y. 1993). In order to make a proper pleading under § 1981, plaintiffs must allege some facts that demonstrate that their race was the reason for the defendants' actions. Jafree v. Barber, 689 F.2d 640, 643 (7th Cir. 1982). Failure to allege such facts makes the claim incomplete. Id.
Generally, examples of disparate treatment are not a necessary element of a well-pleaded § 1981 claim. Melson v. Kroger Co., 550 F. Supp. 1100, 1106 (S.D. Ohio 1982). Nevertheless, claims of selective enforcement under § 1981 do require a showing of specific instances in the complaint where the plaintiffs were singled out for unlawful oppression in contrast to others similarly situated. Yusuf, 827 F. Supp. at 956; Albert, 851 F.2d at 573. Clearly, plaintiffs' § 1981 claims are based on selective enforcement, but just as with their fourteenth amendment claims, they have failed to support the allegations of discrimination with specific instances where they were singled out for unlawful oppression in contrast to others similarly situated. Thus, defendants' motion for reconsideration of the viability of the § 1981 claims is granted and plaintiffs claims pursuant to § 1981 are dismissed. However, seeing that the court has granted plaintiffs leave to replead their fourteenth amendment equal protection claims in order to add examples of situations where they were treated discriminatorily in contrast to other similarly situated non-minorities, the court also grants plaintiffs leave to replead the § 1981 claims in order to add such detail.
Defendants' other argument -- that race is a permissible factor that police may use in pursuing criminal investigations -- will not be discussed here because it essentially asks the court to grant summary judgment in their favor on the § 1981 claims, a motion not originally presented for the court's review. Moreover, this argument is moot due to the dismissal of the § 1981 claims.
F. Refusal to Dismiss Title VI Claims
Likewise, the defendants argue that the court should have dismissed plaintiffs' Title VI claims because they require the same pleading elements as fourteenth amendment equal protection claims. As the defendants admit, to raise a valid claim under Title VI, the plaintiff must allege that the conduct in question had a racially discriminatory effect; the plaintiff does not need to allege an intent to discriminate. Lora v. Board of Educ., 456 F. Supp. 1211, 1277 (E.D.N.Y. 1978), vacated on other grounds, 623 F.2d 248 (2d Cir. 1980). The defendants thus argue that the specific allegations in the complaint do not show disparate impact as required for a valid Title VI claim. The court disagrees and preserves its original decision that the facts alleged in the complaint are sufficient to support a Title VI claim. The court finds that the facts presented in the complaint, especially the factual allegations in paragraphs 57 through 76, properly allege discrimination against black persons.
G. Availability of Compensatory Damages Under Title VI
On a related noted, plaintiffs seek reconsideration of the court's holding that compensatory damages are not available under Title VI. Plaintiffs clarify upon reconsideration that they seek relief under Title VI based on the theory of intentional discrimination. Viewing the Title VI claim in that light, monetary damages are an available remedy. See Franklin v. Gwinnett County Pub. Sch., U.S. , 112 S. Ct. 1028, 1035 (1992), citing, Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 595, 103 S. Ct. 3221, 3229, 77 L. Ed. 2d 866 (1983) (noting that damages are available under Title VI for intentional violations). Thus, the plaintiffs' motion for reconsideration on this ground is granted.
H. Qualified Immunity Under § 1981
The law enforcement defendants, both those employed by the state and those who are City of Oneonta employees, now claim that their actions in conducting the investigation are protected by qualified immunity. The court refers back to Section D of this order for the qualified immunity standard.
It is clear that the law delineating proper conduct during questioning by law enforcement officials was clearly established at the time of this investigation. However, none of these defendants has presented the court with evidence regarding his actions. Thus, it is impossible for the court to assess whether their conduct during the investigation was objectively reasonable in light of established law. Thus, the defendants motion for qualified immunity is denied.
I. State Law Cause of Action Based on Hollman and Debour Cases
Defendants assert for the first time on this motion for reconsideration that the plaintiffs have no vehicle under state law by which to recover for violations of state law involving investigatory stops by law enforcement officials. Without reaching the merits, the court summarily declines to entertain this argument because of its improper inclusion in a motion for reconsideration. Motions for reconsideration are not vehicles for advancing theories or arguments which could have, but were not, advanced in the original motion." Larsen, 816 F. Supp. at 114. Because the court finds no reason why this argument could not have been advanced in the earlier motion, it refuses to consider it now. Thus, defendants' motion for reconsideration on these grounds is denied.
J. Court's Finding that State Law Violations Do Not Constitute Violations of the Equal Protection Clause
Plaintiffs assert that violations of state law may be used to support a violation of the federal constitution, more specifically the equal protection clause of the fourteenth amendment. The Supreme Court in Snowden v. Hughes, stated that:
not every denial of a right conferred by state law involves a denial of the equal protection of the laws . . . [and] the unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination . . . [and this] discriminatory purpose is not presumed, there must be a showing of "clear and intentional discrimination."
Snowden v. Hughes, 321 U.S. 1, 8, 64 S. Ct. 397, 401, 88 L. Ed. 497 (1944) (citations omitted).
The Second Circuit elaborated on this decision in FSK Drug Corp. v. Perales, stating:
[a] claim of selective application of a facially lawful state regulation requires a showing that: (1) the person, compared with others similarly situated, was selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person.