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February 25, 2002


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


Plaintiff Rubin Weser challenges his denial of admission to the City University of New York Law School at Queens College (the "Law School") for the school years beginning in 1995, 1996 and 1997. Plaintiff asserts claims of discrimination based on religion, race and gender against the Law School and various members of the admissions committees. Defendants move for summary judgment on all claims. By order dated October 12, 2001, defendants' motion was granted. The reasons follow.


The Law School is a New York State taxpayer-supported public institution created in 1983 to train public service lawyers. Plaintiff is a white, Jewish, seventy-nine-year-old retired businessman who, despite repeated efforts, has been denied admission to the Law School. The gravamen of plaintiffs complaint is that he has been discriminated against because he is a Jewish, white man. He contends that the Law School and its officials limited the number of seats available to white male applicants (Compl. ¶¶ 23, 55-56, 62-63), set aside seats for women (Compl. ¶¶ 37, 5556), and subjected applicants to different standards based on race (Compl. ¶¶ 10, 50, 74), religion (Compl. ¶ 70a), and gender (Compl. ¶ 10), in accordance with an unconstitutional affirmative action plan. (Compl. ¶ 76). He further contends that the Law School continues to so discriminate. Defendants contend that plaintiff was denied admission not because of discrimination, but because his academic qualifications and commitment to public service were judged lacking as compared to other applicants. As difficult as it may be for plaintiff to accept, the evidence does not support his claims, and no genuine issue of material fact remains for the fact-finders.

Admissions Policy and Procedures

Plaintiff challenges the Law School's admissions policy that was in place when he applied for admission for the 1995, 1996 and 1997 school years. That policy states:


The mandate of the City University of New York School of Law 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:
1. We seek people who are able to complete the program successfully.
The Law School's program is intensive and intellectually demanding. Thus, we look for a demonstration of strong academic ability, including skill at analysis, problem solving, and research. To this end, we look at past academic performance and scores on the Law School Admission Test. But we also look beyond these to other demonstrations of academic promise. Work competed since college, other demanding intellectual activities, extraordinary letters of recommendation, and anything else that candidates bring to our attention in the application are carefully taken into account.
2. We look for indications that the candidate has a special affinity for our particular program.
Assessment of academic ability alone does not dominate the application process. We 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. Past work or extra-curricular experience, the individual's reasons for wanting to attend law school, experiences that demonstrate a commitment to public service or that suggest an openness to a practice that captures the spirit of the School's mission, are all factors that are considered and can be dispositive.

3. We try to select a diverse group of students.

Our students must be academically able and genuinely representative of the remarkable diversity of the City the Law School serves. We actively recruit, among others, students who are members of populations that have traditionally been underserved by the law and underrepresented by the profession.
4. We seek students who have some demonstrated connection to the State and, particularly, the City, because we are an institution funded by the State of New York.
That connection may be manifested by residence, work experience, educational experience, other service to the State and City, or a demonstrated special concern for the solution of urban problems.
We receive many more qualified applications than we can 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 four areas. . . . .

(1995-1996 Application, Ortiz Decl., Ex. A; 1996-1997 Application, Burnett Decl., Ex. A) (emphasis in original). Plaintiff contends that this policy was and is part of an unconstitutional affirmative action plan and that, pursuant to the policy, the Law School sets aside seats and applies different admissions standards based on religion, race and gender. Defendants contend that, as clearly outlined in the applications, candidates are evaluated based on academic preparedness and demonstrated commitment to public service. In addition, because the school is a New York State taxpayer-supported institution, ties to New York are considered. According to defendants, diversity in terms of race, national origin, gender, age and disability is achieved by actively recruiting a diverse applicant pool and not by preferences in the admissions process.

The admissions committee utilizes two review processes: one for applicants with Law School Admission Test ("LSAT") scores of 140 or above*fn1 and another for those with LSAT scores below 140. For the former, complete applicant files are reviewed by two members of the admissions committee who are anonymous to each other. Each reviewer recommends that the applicant be accepted, rejected, or placed on the wait list. If the reviewers disagree, a third member of the admissions committee reviews the file. After an independent review of each applicant file, the admissions committee decides whether to accept the reviewers' recommendations.

Pursuant to a policy set by the Law School's faculty, each year a maximum of eight applicants with LSAT scores below 140 may be offered admission.*fn2 One annually designated member of the admissions committee reviews the completed files of all applicants with such scores. That individual examines each application for evidence of academic preparedness and commitment to public service and determines whether the application warrants further review by members of the admissions committee despite the low LSAT score. If the initial reviewer decides the application does not warrant further review, the process ends, and the admissions committee generally does not act on that application. If the reviewer determines that the application does warrant further consideration, the application is reviewed by two or more members of the admissions committee. The admissions committee then grants or denies admission. The reviewer, acting alone, does not have the authority to grant admission. (See Letter from Stephanie Vullo, dated February 9, 2001; Ortiz Decl. ¶¶ 9-10; Burnett Decl. ¶¶ 9 & 17; Perez Decl. ¶ 9).

Admissions forms for the relevant years asked applicants to voluntarily identity their race and national origin. The forms state that the information has no bearing on admissions or academic decisions. Applicants were also asked to identify their gender. Applicants were not asked to identify their religion.

Plaintiff's Applications

As previously stated, plaintiff is a white, Jewish, male born in 1922. After a full career as founder and owner of an insurance brokerage firm, he graduated from the State University of New York Empire State College ("Empire State College") in 1992, with a grade-point average ("GPA") of 3.78. Plaintiff took the LSAT for the first time in 1991 and received a score of 127. He took the LSAT again in 1994 and received a score of 133.

Plaintiffs applications for 1995, 1996, and 1997 included a number of letters of recommendation. Two of plaintiffs professors from Empire State College wrote strong letters of recommendation indicating that each had ample opportunity to assess plaintiff and that he was motivated and prepared to succeed in law school. Specifically, Professor Armstrong, who taught plaintiff several courses including "Logic and Rhetoric," wrote of plaintiff:

Rubin Weser is one of those most unusual people: someone who seeks to give to others more than he receives from them.
His talents and skills are well suited to the law. He has a highly developed intelligence with strong skills in analysis, making subtle distinctions, and in thorough-going examination of a problem. He is well-spoken and articulate; he is unafraid of confrontation, although he hesitates to instigate it; and he shines at debate or written argument. He will be a model law student.

(Ortiz Decl., Ex. E at Bates No. 417; Burnett Decl., Ex. B at Bates No. 449; Scott Decl., Ex. A at Bates No. 494). Professor Brown, plaintiffs evaluator for "The Supreme Court and the Constitution" and "Constitutional Issues," wrote:

He went far beyond what was expected of him by probing into the intricate details of the legal questions we analyzed. He showed a good ability to see alternative perspectives on issues and to defend or critique each one. He was able to grasp complex issues, such as the opposing theories of interpreting the Constitution, much more quickly and thoroughly than other students.

(Ortiz Decl., Ex. E at Bates No. 420; Burnett Decl., Ex. B at Bates No. 445; Scott Decl., Ex. A at Bates No. 496). Plaintiff's applications included a letter from State Senator Frank Padavan, who had not personally met plaintiff, suggesting that he was a worthy candidate for admission based on his vita. Edward Saueracker, Ph.D., Dean of Assessment at Empire State College, also wrote a letter, included in plaintiffs 1996 and 1997 applications, indicating that plaintiffs transcript, although "a bit off-putting," evidenced his ability to succeed in law school. (Burnett Decl., Ex. B at Bates No. 447; Scott Decl., Ex. A at Bates No. 498). In addition, the chairman of the Knights of Pythias, a philanthropic fraternal organization of which plaintiff was a member, wrote a letter on plaintiffs behalf that briefly describes the organization.*fn4

In his personal statement, plaintiff urges the admissions committee to consider his approximately fifty years of work experience in the insurance industry as further evidence of his academic preparedness,*fn5 his thirty-year membership in the Knights of Pythias and membership on its Handicapped Children Committee as evidence of his commitment to public service,*fn6 and his forty-year residence in Whitestone, Queens as evidence of his ties to New York. He states that he intends to use his law degree to help the elderly practicing elder law and advising, on a pro bono basis, community boards and legislative committees on drafting legislation concerning the elderly. Specifically, he writes:

I intend to use my law degree to continue to help the community, specifically the community of the elderly. I will practice elder law. There is a great need for people who understand the problems of the elderly so as to be able to counsel them as to their civil rights regarding the law applicable to health care and even to their right to be properly maintained in a nursing home or other care facility should it become necessary. I identify with the elderly and empathize with their needs.
I also propose serving in an advisory capacity on a pro bono basis on community boards and legislative committees dealing with drafting legislation concerning the elderly. Too often issues concerning the elderly are handled by those who, while well-intentioned, are unable to fully comprehend and identify with the full spectrum of the concerns of the population of older people. I do have such an understanding and am able to deal with the elderly with respect for their dignity that they have earned.

(Ortiz Decl., Ex. E at Bates No. 422-23; Burnett Decl., Ex. B at Bates No. 443-44; Scott Decl., ...

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