Flanagan v. President & Directors of Georgetown Col., Civ. A. No. 75-1500.

• Decision Date: 28 July 1976
• Docket Number: Civ. A. No. 75-1500.
• Parties: J. Michael FLANAGAN, Plaintiff, v. The PRESIDENT AND DIRECTORS OF GEORGETOWN COLLEGE et al., Defendants.
• Court: U.S. District Court — District of Columbia

417 F. Supp. 377

J. Michael FLANAGAN, Plaintiff, v. The PRESIDENT AND DIRECTORS OF GEORGETOWN COLLEGE et al., Defendants.

Civ. A. No. 75-1500.

United States District Court, District of Columbia.

July 28, 1976.

J. Michael Flanagan, pro se.

John Miles, Washington, D. C., for defendants.

MEMORANDUM

GASCH, District Judge.

This is an action under Title VI, section 601 of the Civil Rights Act of 1964, 78 Stat. 241, 252, 42 U.S.C. § 2000d, alleging that defendants have discriminated against plaintiff on the basis of race in the allocation of financial aid to students at the Georgetown University Law Center. Plaintiff also bases this action on Sections 9.1 and 17.1 of the District of Columbia Human Rights Law, Title 34, D.C. Rules and Regulations. Plaintiff seeks a permanent injunction against these alleged discriminatory actions and $3,700 in damages, representing the amount of financial aid plaintiff alleges he would have been awarded had he not been the subject of this alleged discrimination.

Plaintiff has moved for summary judgment. Defendants have opposed this motion, arguing that there are material issues of fact in dispute which preclude summary judgment and that as a matter of law plaintiff is not entitled to judgment. Upon consideration of the entire record herein and for the reasons to be detailed in this Memorandum, the Court concludes that plaintiff is entitled to a partial summary judgment on the question of liability but the determination of damages (if any) must await further action by the parties.

I.

Plaintiff is a white (Caucasian) student, enrolled since September, 1973, at Georgetown University Law Center.¹ The defendants are (1) the President and Directors of Georgetown College (hereinafter Georgetown), an institution of higher learning chartered in the District of Columbia; (2) Robert S. Henle, S.J., President of Georgetown; (3) the Georgetown University Law Center (hereinafter Law Center), a division of Georgetown; (4) David J. McCarthy, Dean of the Law Center; and (5) David W. Wilmot, Chairman of the Law Center Committee on Financial Aid.²

Since 1967, the Law Center Committee on Admissions with the approval of the Law Center faculty has developed an Affirmative Action program in an effort to increase the enrollment at the Law Center of certain "minority" students.³ Efforts were made to recruit potential "minority" students, and to develop proposals for financial assistance to "minority" students. By 1972, however, these efforts had achieved relatively little success. The Law Center's Ad Hoc Committee on Minority Affairs attributed this to the lack of financial assistance opportunities available to potential "minority" students. This Ad Hoc Committee presented certain proposals to the Law Center faculty in February, 1972. On February 24, 1972, the faculty passed a resolution which defendants summarize as follows:

the Law Center Admissions Committee would consist of five faculty members and three students representing student groups known as La Raza, BALSA and the Student Bar Association; the Committee would, inter alia, in reviewing and passing upon applications for admission, give renewed consideration to those "minority" or "disadvantaged" persons not clearly acceptable based upon traditional admissions indices; sixty percent (60%) of available scholarship funds for the freshman class in 1972 would go to such persons; and the program would continue for three years.⁴

The scholarship funds that are made available 60% to "minority" students and 40% to "non-minority" students are funds that originate from Georgetown's own revenues, and are referred to as "Direct University Scholarships."⁵ The term "minority" student as used by the Law Center in implementing these policies includes not only persons in discernible ethnic and racial groups (Black Americans, Native Americans, Asian Americans, Spanish-speaking Americans), but also applicants with social, educational, cultural, and/or financial disadvantages. The defendants assert, "under this minority definition applied by the Office of Admissions, other ethnic or social groups, including whites or Caucasians, may qualify and have qualified for minority status."⁶ Defendants further indicated that in plaintiff's first year class of 623 students there were 68 "minority" students, or less than 11%.

Within the two groups of first year students, "minority" and "non-minority," the scholarship funds are distributed on the basis of demonstrated financial need, as reflected in the standardized, confidential Graduate and Professional School Financial Aid Service (GAPSFAS) form submitted by all applicants to the Educational Testing Service (ETS) in Princeton, New Jersey. The information in this form is evaluated by ETS which submits to the Law Center a confidential "Summary of Applicant's Resources." Based on these documents the Law Center's Financial Aid Office makes an assessment of the applicant's financial aid need in light of tuition costs, expenses, and related considerations. In 1973, plaintiff's first year at the Law Center, this total cost was estimated to be $5,400 for a single, full-time student. From this figure an applicant's total assets are subtracted and a scholarship determination is made.

From data disclosed in discovery it appears that the amount of financial aid given is in direct relation to the financial need estimate. The table set out in the margin⁷ was compiled by plaintiff in his affidavit from information supplied by the defendants in discovery. It contains information on plaintiff and those minority students whose financial need data was computed on the same ETS basis and who were awarded scholarships in the 1973-74 school year.

It is defendants' policy not to review an application for scholarship aid until a prospective student has been accepted for admission to the Law Center. If the accepted applicant demonstrates need, he or she is awarded a scholarship if Direct University Scholarship funds are available. Since admissions are made on a rolling basis, there is the possibility that if an applicant is admitted late in the process there may be no funds left to award that applicant a scholarship even if he or she has a demonstrated need. In plaintiff's case he was not accepted for admission for the academic year 1973-74 until June, 1973, by which time all Direct University Scholarship funds available for "non-minority" applicants had been exhausted.

The Direct University Scholarships funds available for "minority" students, however, were not exhausted. During the second semester of the 1973-74 academic year, the Financial Aid Committee reviewed the financial aid applications of many students, including plaintiff, and awarded plaintiff a scholarship of $400 for the second semester of that academic year.

II.

Plaintiff has moved for summary judgment arguing that defendants' policies and actions as outlined above unlawfully discriminated against him in violation of Title VI of the 1964 Civil Rights Act.⁸ Plaintiff has limited his motion to the alleged discrimination in his first year at the Law Center, as it appears that the "minority" student financial aid policies apply only to first-year students. Title VI provides:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

42 U.S.C. § 2000d.

Plaintiff argues that by segregating first-year students into two classes on the basis of race and allocating scholarship funds so that 60% of the funds were made available to 11% of the first-year students and 40% to the remaining 89% of the first-year class, defendants violated this provision as well as the relevant regulations of the United States Department of Health, Education and Welfare (H.E.W.). These regulations are designed to implement Title VI as it relates to programs funded by H.E.W. The federal financial assistance plaintiff alleges defendants received includes federal grants, loans, and interest subsidies totalling over $7 million for the construction of the Law Center building under the Higher Education Facilities Act, Pub.L. 88-204, 77 Stat. 363 (repealed 1972), administered by H.E.W. Plaintiff alleges that defendants' actions are in violation of specific prohibitions in the H.E.W. regulations, as well as the general prohibition in the statute. Section 80.3(b)(1) of Title 45 C.F.R. provides:

A recipient under any program to which this part applies may not, directly or through contractual or other arrangements, on ground of race, color, or national origin:

* * * * * *

(iii) Subject an individual to segregation or separate treatment in any matter related to his receipt of any service, financial aid, or other benefit under the program;

* * * * * *

(v) Treat an individual differently from others in determining whether he satisfies any admission, enrollment, quota, eligibility, membership or other requirement or condition which individuals must meet in order to be provided any service, financial aid, or other benefit provided under the program.

As direct evidence of the discriminatory effect of defendants' policies, plaintiff points to the documentary information supplied by defendants. The table in note 7 above, for example, indicates that plaintiff, with a financial need estimate of $2,700 received a $400 scholarship award, while three "minority" students with lesser financial need estimates of $2,550, $2,300 and $2,190, received respectively, $1,885, $1,825, and $1,895.

III.

Defendants' opposition to plaintiff's motion is in four parts. First, it is argued that plaintiff has failed to demonstrate that the classification of first year students as either "minority" or "non-minority" is discrimination on the basis of race as prohibited by Title VI. Second, defendants assert that plaintiff has failed to demonstrate...