Scelsa v. City University of New York

• Decision Date: 18 November 1992
• Docket Number: No. 92 Civ. 6690 (CBM).,92 Civ. 6690 (CBM).
• Citation: 806 F. Supp. 1126
• Parties: Joseph V. SCELSA, individually and as Director of the John D. Calandra Italian American Institute of the City University of New York v. CITY UNIVERSITY OF NEW YORK and W. Ann Reynolds, as Chancellor of the CITY UNIVERSITY OF NEW YORK.
• Court: U.S. District Court — Southern District of New York

806 F. Supp. 1126

Joseph V. SCELSA, individually and as Director of the John D. Calandra Italian American Institute of the City University of New York v. CITY UNIVERSITY OF NEW YORK and W. Ann Reynolds, as Chancellor of the CITY UNIVERSITY OF NEW YORK.

No. 92 Civ. 6690 (CBM).

United States District Court, S.D. New York.

November 18, 1992.

Phillip F. Foglia, White Plains, N.Y., Howard R. Birnbach, Great Neck, N.Y., Michael Marinaccio, White Plains, N.Y., for plaintiff.

Barbara B. Butler, Charles F. Sanders, New York City, Gayle A. Sunnlivan, Jane M. Sovern, New York City, for defendants.

OPINION ON MOTION FOR PRELIMINARY INJUNCTION

MOTLEY, District Judge.

Plaintiff Dr. Joseph V. Scelsa, the Director of the John D. Calandra Italian American Institute ("Institute") of the City University of New York ("CUNY"), is before this court seeking a preliminary injunction barring defendants from employment discrimination against Italian-Americans and from relocating the Institute and transferring its operations to several different units of CUNY located around the city. Plaintiff's complaint alleges, in essence, that Italian-Americans have been discriminated against in employment because of their national origin, particularly with respect to recruitment and promotion of faculty by defendants.

The complaint also alleges that in retaliation for plaintiffs having filed a complaint with the United States Department of Labor charging CUNY with discrimination against Italian Americans in violation of Title VI of the Civil Rights Act of 1964, Dr. Scelsa has been stripped of his authority as director of the Institute and the Institute's programs have been transferred to other CUNY units. For the reasons set forth below, a preliminary injunction is granted enjoining discrimination against Italian-Americans with respect to faculty recruitment and promotions and enjoining the dismemberment of the Institute and the removal of Dr. Scelsa as director of the Institute, pending the trial of this action.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. FINDINGS OF FACT

A. Cuny is a State Institution

City University of New York is a self-governing assemblage of 21 educational subdivisions. The nine senior 4-year colleges are funded by the State of New York, see N.Y. Education Law § 6230 (McKinney 1992). The seven community colleges are funded jointly by the State and the City of New York. N.Y. Education Law § 6304 (McKinney 1992). While the College of Staten Island is a four-year senior college, it also accepts students who seek a two-year degree, and thus receives some City funds to help cover the costs of those students. N.Y. City Education Law § 6221(C)(i). The Italian American Institute is supported solely through state funds (Tr. 683). During the fiscal year 1992-1993, the Institute was allotted some $912,000; during fiscal year 1991-1992, roughly $906,000; and in fiscal year 1990-1991, $860,000 (Tr. 987).

B. History of Italian-Americans and the Italian American Institute at Cuny

In the mid- to late-1970s concern about the historical under-representation of Italian-Americans on the CUNY faculty and staff and the perception that there was widespread discrimination against Italian-Americans by CUNY led to action on the part of both CUNY and elected officials.

In 1976, Chancellor Kibbee of CUNY issued a directive to the CUNY Council of Presidents concerning the educational under-representation of Italian-Americans in the student body and on the faculty ("the Kibbee Memorandum"). Chancellor Kibbee stated in that letter that "I am designating Italian-Americans as an affirmative action category for this University in addition to those so categorized under existing Federal statutes and regulations. I also have instructed the Affirmative Action Office to include Italian-Americans in the data collected for affirmative action purposes." (Plaintiff's exhibit 4) (emphasis supplied).¹

In 1978, State Senator John Calandra, Chair of the Italian-American Legislator's Caucus, prepared a Report entitled "A History of Italian-American Discrimination at CUNY" (Plaintiff's Exhibit 16) ("Calandra Report"). In this Report Senator Calandra set forth the conclusions and beliefs of the Caucus of widespread discrimination against Italian-Americans but noting specifically Chancellor Kibbee's designation of Italian-Americans as an affirmative action group. (Calandra Report at 5). This Report also proposed the creation of an Italian-American Institute at CUNY to address the perceived problem of discrimination, whose function would be "to generate a comprehensive guidance program, to develop a complementary cultural component, and to provide the related informational services." (Ex. 16 at 27).

As a result of these actions, the John D. Calandra Italian American Institute was created by the State legislature in 1979. (Tr. 64). Originally, the Institute was an entity separate and independent from CUNY. (Tr. 984). It was reorganized as a division within CUNY by the New York State Legislature in 1984-85. While not technically a "research institute" as defined by CUNY bylaws, it conducts much research into the role, place, and problems of Italian-Americans in New York City and within the CUNY system. In 1989, the Office of Management and Productivity conducted, at the request of the Governor, a management review of the Institute (Ct. Ex. 1, the MAP Report). As noted in the MAP Report, the research component is an active and integral aspect of the Institute, and its activities are coordinated "with CUNY's Office of Institutional Research and Analysis" (MAP Report at 22), indicating that the Institute's research initiatives are integrated with other campus research activities.

Much of the Institute's work is not pursuant to University directive; indeed, it appears from the record that CUNY pays little attention, if any, to the work, goals, and concerns of the Institute and Italian-Americans in general. Instead, much of the Institute's activity arises out of the initiative of its members, particularly its Director, Dr. Scelsa. It is this activity which, plaintiff contends, has drawn the discriminatory ire of the University. It is unclear whether the University dislike of Dr. Scelsa and the institute is motivated by an anti-Italian discriminatory animus. What is clear, however, is that CUNY is seeking to the curtail the independence of the Institute and put Dr. Scelsa on a shorter leash, one on which he lacks the room to bite his master CUNY. The MAP Report advised that CUNY more directly administer the Institute and exercise oversight on its activities. The MAP Report saw the Institute as too dependent on the views and direction of Dr. Scelsa, and not subject enough to the direct control and desires of the CUNY administration. (Ct.Ex. 1, MAP Report at 30-32).

Dr. Scelsa has been director of the Institute since August, 1984. He had also worked in the Office of Student Affairs and Special Programs at the University from September 1980 to October 1981 (Pl. Ex. 40).

The Institute is a central locus for Italian-American activism (See, e.g. Tr. 374-76; 553-54). The Institute currently is engaged in numerous outreach programs directed not only at the Italian-American community but also at fostering and improving intergroup relations. (See, e.g. Tr. at 288-92).

The directive embodied in the Kibbee Memorandum was reaffirmed in 1986 by Chancellor Joseph Murphy ("the Murphy letter"). "In December, 1976, Chancellor Robert J. Kibbee established Italian-American as an Affirmative Action Category within the City University of New York, a decision I now reaffirm. The 1976 action represented a formal extension of the Federally defined protected classes for purposes of the University's Affirmative Action Program to include an additional group as a protected class." (Plaintiff's Exhibit 4A) (emphasis added).

Still, the Murphy Letter left dissatisfied many officials and members of the Italian-American community who felt that Italian-Americans still suffered discrimination and were still under-represented at CUNY. In 1988, the New York State Italian-American Legislator's Club communicated its concerns and desires about the situation of Italian-Americans at CUNY to Chancellor Murphy. (Pl.Ex. 17). In this letter the Club conveyed to the Chancellor their frustration with what they perceived to be CUNY's inadequate response to the affirmative action designation of Italian-Americans. In addition, they urged that better space be provided for the Institute at the Graduate Center.

C. The Proposals to Restructure the Italian American Institute

In 1990, a Committee on Urban Public Higher Education (known as the Massaro Commission, after its Chair, State Supreme Court Justice Massaro) was formed by Italian-American political officials and community activists to investigate and redress perceived discrimination against Italian-Americans at CUNY. (Tr. 464-465). The Massaro Commission recommended, among other things, that the Institute be given more power and responsibilities. (1991 Report of the Advisory Committee on Urban Public Higher Education, Pl.Ex. 15 at 9). It also urged that the Institute be associated with the Graduate School for research purposes, with Dr. Scelsa being elevated to Dean of the Institute (Tr. 471; Pl.Ex. 44, 45).

However, the plan that CUNY eventually decided to adopt was significantly different from that proposed by the Massaro Commission. The CUNY plan, labelled the Volpe plan after President Volpe of the College of Staten Island, the official in charge of assembling it, provided for, inter alia, the relocation of the Italian American Institute to the College of Staten Island (where President Volpe would have authority over it) and the removal of Dr. Scelsa as Director. It appears that defendants want to, in their words, "elevate" the Institute, and in so doing, to sever the outreach, counselling, and research aspects of the Institute. Dr. Scelsa, a thorn...