Alevy v. Downstate Medical Center

• Decision Date: 08 April 1976
• Citation: 348 N.E.2d 537,39 N.Y.2d 326,384 N.Y.S.2d 82
• Parties: , 348 N.E.2d 537 Martin C. ALEVY, Appellant, v. DOWNSTATE MEDICAL CENTER of the State of New York, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 82

384 N.Y.S.2d 82

39 N.Y.2d 326, 348 N.E.2d 537

Martin C. ALEVY, Appellant, v. DOWNSTATE MEDICAL CENTER of the State of New York, Respondent.

Court of Appeals of New York.

April 8, 1976.

Daniel Eisenberg and Joseph Slavin, Brooklyn, for appellant.

Louis J. Lefkowitz, Atty. Gen. (Arnold D. Fleischer, Samuel A. Hirshowitz and George D. Zuckerman, New York City, of counsel), for respondent.

GABRIELLI, Judge.

Few legal issues have generated more public or scholastic controversy, or produced as much passion among its debaters than that raised here. In the celebrated case of De Funis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164, Amici curiae briefs, 26 in number, were submitted by some of the most pre-eminent legal experts, law professors and attorneys in the Nation. As most are aware, howeve the Supreme Court did not decide the basic issue and the controversy continues unabated. ¹ The parties here now raise the issue: Is 'reverse' discrimination constitutional? ²

Petitioner, a resident of Brooklyn, New York, and a Magna cum laude graduate of Brooklyn College, was, at the commencement of this proceeding, a second-year graduate student participating in cancer research in the Department of Microbiology at the University of Southern California School of Medicine. He achieved an undergraduate grade point average of 3.47 and an undergraduate science average of 3.38. His postgraduate average in microbiology is 3.83. On the Medical College Application Test (MCAT), he scored 745 in science (99th percentile), 685 in general information (98th percentile), 645 in verbal (90th percentile), and 645 in qualitative (78th percentile). Petitioner applied for admission to the 1974--1975 class at respondent Downstate Medical Center, a publicly funded unit of the State university system. Following a personal interview, petitioner was notified that he was placed on a waiting list. However, when it became apparent that he would not be accepted by respondent, petitioner commenced this proceeding alleging that his qualifications for admission were superior to those of other applicants to whom respondent had arbitrarily granted preferential treatment in violation of the law. In response to his petition, respondent conceded in its answer that its admission policies were 'responsive to the medical needs of the community's large black and Puerto Rican population.' However, it denied any violation of constitutional rights and asserted that its policy and practice was 'to insure consideration of all aspects which bear upon a candidate's qualifications' for admission.

At the hearing on respondent's motion to dismiss the petition which, by later stipulation of the parties, constituted a trial of the issues, only two witnesses testified: Dr. Jerome P. Parnell, Chairman of the Admissions Committee for respondent, and petitioner. The facts as developed are undisputed.

Respondent received 6,300 applications for the 216 positions in its 1974--1975 entering class. Initially, each application was given a 'screening code', ³ those scoring above 110 were automatically granted a personal interview, those scoring between 102 and 110 were preliminarily screened by the admissions committee and those scoring below 102 were automatically rejected. However, applications by persons claiming to be minority group members were preliminarily screened by the admissions committee irrespective of the screening code assigned to their application.

Petitioner's screening code was 104 and he was one of 1,400 applicants actually interviewed. Of the 435 Black and Puerto Rican applicants, 145 were selected for interviewing. Thus, the average of Black and Puerto Rican applicants interviewed was 12% Higher than other applicants. Following the interview, candidates were rated by the interviewer and those thought worthy of further consideration were presented to the admissions committee; all others were rejected. Thereafter, the interviewer would detail to the committee his reasons for recommending an applicant, and would circulate among the members a folder containing the candidates' qualifications and interview sheet. Each member would then assign a numerical score between one and eight to the application and the average of these scores determined acceptances. Those receiving an 8.0 committee average were accepted immediately until there was no more room in the class, at which time, such remaining candidates would be put on the first waiting list. Those scoring 7.9 were put on a second waiting list and those scoring below 7.9 were rejected.

Dr. Parnell testified that in making their decision the committee members gave consideration to a variety of factors including whether the applicant was a minority group member and might be from a financially or educationally deprived background. ⁴ Regarding the last factor, he added that the applications of all Blacks, Puerto Ricans, Mexican Americans or American Indians were specially marked in order that they might be more closely scrutinized on their interview to ascertain whether they were financially or educationally disadvantaged, and whether they were from 'the ghetto area of Brooklyn'. He also stated that when a candidate was determined to be culturally deprived, the interviewer was expected to report this fact to the admissions committee which placed a high priority on that factor. Dr. Parnell further testified that while the committee had no express written or oral directive to give special preferences to minority applicants from the dean of the college, the Chancellor of the State University or the board of trustees of the college, the policy of the admissions committee regarding minority applicants was understood and well known to the faculty and dean of the college.

Prior to the selection of Dr. Parnell as Admissions Committee Chairman in 1970, respondent averaged no more than three minority students per class of 215. He testified, however, that since 1970 and, as a result of the present system for specially marking and considering minority applicants, the number of minority students per class has averaged 19 or 20; and that the change in admission practices was a direct result of the 1970 Report of the Association of American Medical Colleges Task Force to the Inter-Association Committee on Expanding Educational Opportunities in Medicine for Black and Other Minority Students. That report indicated tht in 1970 only 2.2% Of the physicians and 2.8% Of the medical students in the United States were Black and that among the factors causing that situation were financial and educational obstacles, including cultural bias on the MCAT.

Dr. Parnell conceded that petitioner's screening code was above the average score of the accepted minority applicants, and that had petitioner been a minority group member he probably would have been accepted. He explained, however, that due to the large number of applicants, qualitative achievement formed but a part of the committee's consideration and that factors concerning the individual, as revealed in his interview, were far more important in the selection process.

Respondent accepted 475 applicants, each of whom received an average committee rating of 8.0. An additional 131 candidates received 8.0 committee ratings and were placed on the first waiting list. Placed on a second waiting list were 128 candidates including petitioner who had been given a 7.9 committee rating. Petitioner was 84 on this list and, at the hearin Dr. Parnell testified that it was very unlikely that petitioner would ever be accepted.

Overall, 66 minority applicants were accepted, 13 more were placed on the first waiting list and 6 on the second. Due to declinations or withdrawals, only 21 minority students actually preregistered for the 1974--1975 class. It is of interest to note that petitioner's MCAT average of 680 was higher than every one of the accepted minority students.

Special Term adopted the test espoused by Mr. Justice Douglas in his dissent in De Funis (supra) and stated 'that petitioner had the right to have his application considered in a racially neutral manner', ⁵ but concluded, however, that respondent did not accept students based on their race but rather on their financial and educational disadvantage. Thus, the court found that respondent was neither arbitrary nor in violation of the Constitution by its admission policies and dismissed the petition. As an alternative ground for decision it was noted that petitioner's standing to maintain the proceeding was questionable because even if all 21 accepted minority students were rejected, it was very unlikely that petitioner who was 84 on the second waiting list or 154 in line of priority, would have ever been accepted. The Appellate Division affirmed, without opinion.

Plaintiff's sole claim is that respondent's admission policies and practices in giving less qualified minority applicants a greater opportunity for acceptance is violative of the equal protection clause of the State and Federal Constitutions. In addressing any such constitutional claim, a threshold decision must first be made--the standard of review to be applied Montgomery v. Daniels, 38 N.Y.2d 41, 59, 378 N.Y.S.2d 1, 16, 340 N.E.2d 444, 455). Plaintiff argues that for a racial classification, be it 'benign' or 'invidious', to survive legal challenge the test to be applied is whether the classification can be 'shown to be necessary' (Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d 1010) to the accomplishment of some legitimate 'overriding statutory purpose' (McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 13 L.Ed.2d 222). Put another way, petitioner urges us to apply the strict scrutiny test in reverse discrimination cases. This we may not do.

Traditional equal protection analysis is two tiered. Most classifications are subject to the lax standard of rationality which tests whether the challenged classification bears a reasonable...