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A black student who claimed he received failing grades out of racial animus, and that one professor admitted he “cut slack” for other minorities, has prevailed before the 2nd U.S. Circuit Court of Appeals. A three-judge panel reversed the decision of a judge sitting in the U.S. District Court for the Eastern District of New York who had granted judgment as a matter of law for Queens College after a jury found for plaintiff Derek I. Tolbert and awarded Tolbert $50,000 in punitive damages. The 2nd Circuit, in Tolbert v. Queens College, 00-7143, found that Judge Bernard A. Friedman failed to give sufficient credit to Tolbert’s evidence showing he was discriminated against in grading. Tolbert, a New York City school teacher, enrolled in Queens College’s Media Studies program in 1989 to maintain his teaching eligibility and qualify for a higher salary. He received grades of incomplete in three courses during a two-year hiatus from his studies, but returned in 1992 to complete work in the courses under the supervision of Professor Jonathan Buchsbaum. Tolbert would later allege that professor Buchsbaum and others repeatedly changed the standards he had to meet to obtain his Master’s Degree. On one occasion, Tolbert charged that he received a “B” grade from another professor for a paper, and that Buchsbaum changed it to a failing grade. And on his final paper, Tolbert claimed, Buchsbaum accused him of plagiarism, which Tolbert vehemently denied. When a second professor concurred, Tolbert was told by the department to submit another paper. The conflict came to a head when Tolbert was failed on four essays in his comprehensive examination, becoming the only student out of the six who took the exam to receive failing grades. At a meeting to discuss why he was failed, Tolbert said professors first told him the content of his essays was inaccurate or poorly documented, but then “backed off that position and went [on to say] that my writing was substandard.” Tolbert then asked if his performance was inferior to “non-native American-speaking students, particularly Chinese students.” According to Tolbert, Professor Stuart Liebman said “Chinese students were allowed for certain inconsistencies in their writing because they weren’t born here … and that they were cut slack … . “ In a four-day jury trial, Liebman’s alleged comment was at the heart of Tolbert’s case. Also in dispute was whether the essays were actually graded “blind” by the professors or if graders could ascertain the author. In granting judgment as a matter of law, Judge Friedman said “the entire case” against Liebman was based on the “cutting slack” comment, and that there was “simply no evidence” from which a jury could infer that the comment “meant that Professor Liebman, or the media studies department generally, had a racially discriminatory grading policy.” Friedman also said the “only evidence” explaining the comment was that non-native English speakers were “cut slack” on punctuation, grammar and spelling, but not “on matters of substance.” Friedman, from the Eastern District of Michigan, was sitting by designation. JURY’S DETERMINATION On the appeal, Judge Amalya Kearse said the lower court “did not view the evidence as a whole, or in a light most favorable to Tolbert, or disregard evidence favorable to the defense that the jury was not required to believe.” Not only was there evidence offered in addition to the “cut slack” comment, but it was up to the jury to decide the meaning of the comment, she said. “Such ambiguities are to be resolved by the fact-finder, not by the court as a matter of law,” Kearse said. “[I]n parsing the meaning of that ambiguous statement, the jury was entitled to look both at the statement itself and at evidence of the circumstances in which it was made,” she said. “Was there a difference in the standards by which the Department graded examination essays?” Kearse asked. “The jury could so infer from the ordinary meaning of to ‘cut slack,’ which is to apply a relaxed standard.” Accepting the versions of events offered by professors who were at the meeting with Tolbert, Kearse said, “was not within the province of the court in ruling on a motion for judgment as a matter of law.” Kearse said the court rejected the defense’s contention “that it was impossible for defendants to have discriminated against Tolbert in the grading of his essays even if they wanted to, because of the blind grading system.” “The jury could also infer,” she said, “that the very ability of the essay graders to ‘cut slack’ for the Chinese students meant that the graders could tell the ethnicity of the essays’ authors.” Judges Guido Calabresi and Sonia Sotomayor joined in the opinion. Scott A. Korenbaum and Frederick K. Brewington represented Tolbert. Assistant Attorney General Clement J. Colucci was lead counsel for Queens College.

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