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The diversity-based admissions policy of The City University of New York School of Law at Queens College does not discriminate against white men, an Eastern District of New York judge has ruled. Judge Raymond J. Dearie granted summary judgment and dismissed the case of a 79-year-old retired businessman who claimed the policy was responsible for the school’s refusal to admit him three times during the 1990s. While the ruling in Weser v. Glen, C 97 4031, came 10 years after CUNY’s law school was found liable for having an unconstitutional affirmative action admissions policy, Dearie said the present policy was “significantly” different, and that the school had legitimate reasons for rejecting the applications of Rubin George Weser in 1995, 1996 and 1997. The school’s admission committee has two review processes, one for applicants with LSAT scores of 140 or above, and another for those with scores below 140. Each year the school sets aside a maximum of eight slots for those who score below 140. Weser took the LSAT two times, scoring 127 in 1991 and 133 in 1994, scores that subjected him to a review policy different from the one applied to the majority of applicants ultimately admitted. Despite Weser’s claim that the admissions policy discriminated on its face and was discriminatory as applied to him, the school defended the policy and found Weser’s low LSAT score, academic record and lack of commitment to public service left him short of school standards for admission. But Judge Dearie said the school’s admissions policy was neutral on its face. He contrasted the current policy with the one at issue in the earlier, successful challenge to the school’s policy in Davis v. Halpern, 768 F.Supp. 968 (E.D.N.Y., 1991), saying it was different from that one “in a number of important respects.” The Davis policy made no mention of the fact that, regardless of minority status, candidates must be otherwise qualified for admission, the judge said. And the Davis policy “permitted consideration of an applicant’s membership in an under-represented group as a positive factor,” he said. “Finally, the admissions policy at issue in this case specifies that the Law School strives to achieve diversity through recruiting efforts to attract a broad applicant pool including, among others, minority applicants,” Dearie said. “The Davis policy indicates that the Law School at the time directly sought to admit minority students.” NO UNEQUAL TREATMENT In contrast, Dearie said the policy challenged by Weser “does not classify persons on the basis of race or gender,” and “neither requires nor encourages unequal treatment of applicants.” “Although the policy references the school’s desire for diversity and recruiting efforts to achieve it in the explanation of admissions criteria, the policy does not favor or create a less rigorous admissions standard for members of under-served and under-represented groups, nor does it imply that seats are set aside for members of such groups,” he said. “Moreover, even if the Law School’s recruiting and outreach efforts were ‘race conscious’ in being directed at broader recruiting of minorities and women, such efforts would not constitute discrimination” and do not implicate the Equal Protection Clause, the judge said. Dearie then found that the admissions policy was not discriminatory as applied to Weser. “[I]n contrast to the Davis case, defendants deny the existence of an affirmative action plan,” he said, adding that the school had presented “legitimate, non-discriminatory reasons” for rejecting his application. The judge also rejected the import of statistics that Weser claimed supported his claim that the school discriminated against white men in general and, specifically, against himself. “The statistics for 1995 and 1996 indicate, contrary to plaintiff’s assertions, that white applicants and male applicants were not held to a higher standard,” Judge Dearie said. Weser was represented by Robert C. Keilson of Garden City, N.Y. Assistant Attorneys General Stephanie Vullo and Benjamin Lee represented CUNY School of Law.

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