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Rejected last year as an applicant to University of California, Berkeley’s Boalt Hall School of Law, Jonathan Rui did what any good lawyer wannabe would do. He sued. But unlike some plaintiffs, Rui, who accuses Boalt Hall of discriminating against Asians, is claiming intentional infliction of emotional distress and wants punitive damages against the school and four of its high-ranking officials. On Wednesday, three judges on the First District Court of Appeal in San Francisco raised concerns about Rui’s emotional distress claim — which the trial court refused to toss out — and indicated that they’re worried about opening the door to countless suits by rejected school applicants. “If we go along with the trial court,” Justice Paul Haerle told Rui’s lawyers, “any rejected law school student, medical school student or university student could file an intentional infliction of emotional distress complaint.” Boalt Hall rejected Rui, who’s now in his second year at Northwestern University School of Law in Evanston, Ill., by form letter in April 2000. The school claimed his LSAT score of 173 and his 2.9 grade-point average as an undergraduate at the University of California, Berkeley, were “simply not competitive for admission to Boalt Hall.” Rui, however, accused Boalt Hall of turning him down based on an unwritten policy limiting the number of Asian students, and sued the University of California regents, Dean Herma Hill Kay, former Dean Jan Vetter, Associate Dean John Dwyer and Director of Admissions Edward Tom. His lawyers also contend that Boalt Hall didn’t take into account that Rui suffers from obsessive-compulsive disorder, for which he wasn’t accommodated by UC-Berkeley during his undergraduate days. “Had [Rui] received the accommodations that the university provides to students with OCD throughout his years at Cal,” San Francisco lawyer Waukeen McCoy wrote in court papers, “he would have undoubtedly had a higher GPA.” In August, Alameda County, Calif., Superior Court Judge Demetrios Agretelis tossed out all the claims against the individual defendants, except the one for intentional infliction of emotional distress. UC lawyers immediately filed a writ with the First District, saying the judge’s decision incorrectly exposes the four officials to punitive damages and creates “a chilling effect on the legitimate exercise of university discretion in admissions decisions.” The case — Regents of the University of California v. Superior Court, A096423 — is believed to be one of first impression, and prompted hard questions by the appeal court justices last week for attorneys on both sides. At times all three justices pointed to California case law that allows claims of intentional infliction of emotional distress only in instances where the defendant’s conduct was extreme and outrageous. “How can sending a letter [of rejection] be outrageous in and of itself?” Justice Haerle asked Zachary Best, Rui’s San Francisco lawyer, who argued the appeal. “[Rui] wasn’t vocally turned down,” Justice J. Anthony Kline joined in. “He received a letter. Case law says that kind of routine conduct cannot be the basis for an allegation of emotional distress.” Best responded by saying the court needs to consider not only Boalt Hall’s conduct, but also its motives — the alleged racial discrimination — to determine whether an act is outrageous. Best also argued that Boalt Hall was trying to discredit the suit by citing case law that has to do with employment situations. “So what!” Haerle barked. “What difference does that make?” Christopher Patti, representing the University of California, argued that conduct and motive are distinct issues. But Justice Ignazio Ruvolo asked why conduct isn’t outrageous if the context is discrimination. “Conduct and motive are two different things, your honor,” he said. “Bad motive is not enough to make conduct outrageous.” Justice Kline threw out a hypothetical, asking whether a woman who receives a Mother’s Day card from her ex-husband the day after her child is killed in an auto accident has a claim for intentional infliction of emotional distress. Patti said yes, that’s possible, but quickly added that there’s no way Rui’s rejected application rises to that level. In court papers, Patti had written that conduct must be judged by itself. “Motives, be they evil, unlawful or discriminatory,” he wrote, “are simply not relevant.” After the hearing, Patti was asked — since court papers never address the issue — whether Boalt Hall indeed does have a racial quota. His answer, short and sweet: “No.”

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