The opinion of the court was delivered by: Dearie, District Judge.
CORRECTED MEMORANDUM OF DECISION
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
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
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
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'
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. ¶
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.
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., ...