Weiss v. City University of New York

USDC SDNY

UNITED STATES DISTRICT COURT DOCUMENT

SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED .

nn nnn nnn nnn nn nnn nnn nnn nn nnn nnn nnn nnn K DOC #: .

: DATE FILED: 7/2/2021

FAIGY RACHEL WEISS, :

Plaintiff, :

: 17-CV-3557 (VSB)

- against - :

: OPINION & ORDER

CITY UNIVERSITY OF NEW YORK, et al., :

Defendants. :

wn KX

Appearances:

Faigy Rachel Weiss

Brooklyn, NY

Pro se Plaintiff

Johane Severin

Erin Patricia Kandel

Steven Leon Banks

New York State Office of the Attorney General

New York, NY

Counsel for Defendants

VERNON S. BRODERICK, United States District Judge:

Before me is Defendants’ motion to dismiss pro se Plaintiff’s Second Amended

Complaint. For the reasons set forth below, Defendant’s motion to dismiss is GRANTED in part

and DENIED in part.

I. Background! and Procedural History

Plaintiff commenced this action on May 11, 2017 by filing a request to proceed in forma

'T assume Plaintiff's allegations contained in the Second Amended Complaint, (Doc. 93), to be true for purposes of

this motion. See Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). However, my references

to these allegations should not be construed as a finding as to their veracity, and I make no such findings. I assume

familiarity with the facts as detailed in Section I of my Opinion & Order dated March 18, 2019. (Doc. 65.)

pauperis, (Doc. 1), and a complaint against the City University of New York (“CUNY”), the City

University of New York Board of Trustees, Hunter College of the City University of New York,

the Silberman School of Social Work at Hunter College, and four CUNY administrators, Nireata

Seals, John Rose, Jennifer Raab, and Roberta Nord, alleging various claims of discrimination in

connection with the rejection of her application for admission to the “Masters of Social Work”

(“MSW”) program at the Silberman School of Social Work at Hunter College, (Doc. 2).

As part of the Order of Service dated June 6, 2017, I reviewed the initial complaint based

upon Plaintiff’s in forma pauperis status, as authorized by 28 U.S.C. § 1915(e)(2)(B), and

dismissed on the basis of Eleventh Amendment immunity Plaintiff’s (1) § 1981 and § 1983

claims asserted against CUNY, the CUNY Board of Trustees (“CUNY Board”), Hunter College,

and the Silberman School, and (2) the § 1981 and § 1983 claims for money damages asserted

against Defendants Rose, Raab, Seals, and Nord in their official capacities. (Doc. 5.) I also

dismissed Plaintiff’s Title VI claims against Defendants Rose, Raab, Seals, and Nord, because as

individuals they do not receive federal funding. (Id.)

After requesting and receiving several extensions, Plaintiff filed her Amended Complaint

on April 13, 2018, against CUNY; the CUNY Board members in their official and individual

capacities; Hunter College of CUNY; the Silberman School of Social Work at Hunter College;

James Milliken, former chancellor of CUNY, in his individual capacity; and Nireata Seals, John

Rose, Jennifer Raab, Roberta Nord, and Eric T. Schneiderman, in their official and individual

capacities. (Doc. 31.) On June 19, 2018, CUNY, Milliken, Seals, Rose, Raab and Nord all

moved to dismiss the Amended Complaint, (Doc. 36), noting, among other things, that Hunter

College and the Silberman School are not suable entities and that CUNY is the only proper

institutional defendant, (id. 2 n.2). On August 13, 2018, after being served, the CUNY Board

members in their official capacity, Eric T. Schneiderman in his individual capacity, and Barbara

D. Underwood, then Acting Attorney General, in her official capacity, filed a motion to dismiss

joining the June 19, 2018 motion to dismiss filed by the other Defendants. (Doc. 47.) By

Opinion & Order dated March 18, 2019, I dismissed all of Plaintiff’s claims except for her (1)

Title VI claim against CUNY; (2) § 1983 claims against the CUNY Board, Milliken, Seals,

Rose, Raab, and Nord in their individual capacities; and (3) § 1981 claims against the CUNY

Board, Milliken, Seals, Rose, Raab, and Nord in their individual capacities (“March 18 Opinion

& Order”). (Doc. 65.)

CUNY, the CUNY Board, Milliken, Seals, Rose, Raab, and Nord filed an answer on

April 8, 2019. (Doc. 67.) I then held an initial pretrial conference on May 14, 2019, at which

Defendants stated their intent to move under Federal Rule of Civil Procedure 12(c) to dismiss

most of the remaining claims against Defendants in their individual capacities. Plaintiff

indicated a desire to (1) file a second amended complaint and (2) to seek recusal of the Attorney

General’s Office from this case. During the conference, and subsequently in a written order

dated June 6, 2019, I directed Defendants to file their motion to dismiss by June 20, 2019 and

granted Plaintiff leave to subsequently file a second amended complaint, and directed Plaintiff to

submit a letter requesting the amount of time she would need to do so. (Doc. 75.) I also directed

Plaintiff to inform me by letter whether she intended to file a motion seeking removal of the

Attorney General’s Office from this case, and if so, how much time she would need to file such a

motion. (Id.) Finally, the parties were directed to meet and confer and submit a proposed case

management plan and scheduling order. (Id.) On June 10, 2019, I issued an order directing the

clerk to attempt to locate pro bono counsel to assist Plaintiff with propounding discovery, (Doc.

76), and on October 18, 2019, pro bono counsel filed their notices of limited appearance, (Docs.

95, 96).

On June 20, 2019, Defendants filed their motion to dismiss the Amended Complaint

pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Doc. 78.) On June 21, 2019,

the parties submitted a proposed case management plan that scheduled the close of discovery for

February 29, 2020. (Doc. 87.) Subsequently, Plaintiff submitted a letter informing me that she

wished to amend her complaint and move for recusal of the Attorney General. (Doc. 88.) By

order dated July 1, 2019, I directed Plaintiff to file her recusal motion by July 29, 2019, and her

second amended complaint by August 29, 2019. (Doc. 89.)

On July 29, 2019, Plaintiff submitted a letter requesting “permission to attend the MSW

graduate program at Hunter College Silberman School of Social Work as a full time student with

full tuition waiver/scholarship, living stipend and medical/dental insurance as part of preliminary

relief.” (Pl.’s 7/29/19 Ltr.)2 Plaintiff also asserted that it is “a conflict of interest for the attorney

general to represent a state employee who has violated CUNY, state, city and federal laws as it

contradicts the mission of the NYAG.” (Id.) On August 5, 2019, Defendants filed a letter

opposing this request on the grounds that Plaintiff failed to make the showing required for a

preliminary injunction and that her motion to disqualify the Attorney General failed as a matter

of law. (Defs.’ Opp.)3 On August 21, 2019, Plaintiff submitted a letter in further support of her

request. (“Pl.’s 8/22/19 Ltr.”)4

On August 29, 2019, Plaintiff filed a Second Amended Complaint that was virtually

2 “Pl.’s 7/29/19 Ltr.” refers to Plaintiff’s July 29, 2019 letter requesting, among other things, admission to the MSW

program at the Silberman School of Social Work. (Doc. 90.)

3 “Defs.’ Opp.” refers to Defendants’ August 5, 2019 letter in opposition to Plaintiff’s July 29, 2019 letter. (Doc.

91.)

4 “Pl.’s 8/22/19 Ltr.” refers to Plaintiff’s August 22, 2019 letter in further support of her July 29, 2019 letter

requesting admission to the MSW program at the Silberman School of Social Work. (Doc. 92.)

identical to her Amended Complaint, except that references to Eric T. Schneiderman, the former

Attorney General of New York, were replaced by references to Letitia James, the current

Attorney General of New York. (See generally SAC.) 5

On September 17, 2019, Defendants submitted a letter requesting that I dismiss the

claims that I had previously dismissed and that Plaintiff reasserted in the Second Amended

Complaint, and also asked that I set a briefing schedule for Defendants to renew their second

motion to dismiss. (Defs.’ 9/17/19 Ltr.)6 By order dated October 11, 2019, I (1) denied

Plaintiff’s request for a preliminary injunction; (2) denied Plaintiff’s request to disqualify the

Attorney General’s Office as counsel to Defendants; and (3) granted Defendants’ request to

dismiss reasserted causes of action in Plaintiff’s Second Amended Complaint, but denied

Defendants’ request that I dismiss the newly asserted cause of action against Attorney General

James. (Doc. 100.)

On December 6, 2019, Defendants filed the motion to dismiss Plaintiffs’ Second

Amended Complaint. (Docs. 101–105.) Plaintiff filed her opposition on March 18, 2020, (Doc.

113), and Defendants filed the reply on April 20, 2020, (Doc. 120).

Legal Standards

A. Rule 12(b)(6)

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A claim will have “facial plausibility when the plaintiff

5 “SAC” refers to Plaintiff’s second amended complaint, filed on August 29, 2019. (Doc. 93.)

6 “Defs.’ 9/17/19 Ltr.” refers to Defendants’ September 17, 2019 letter requesting, among other things, that I dismiss

the re-asserted claims in the Second Amended Complaint that I had previously dismissed. (Doc. 94.)

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. This standard demands “more than a sheer possibility

that a defendant has acted unlawfully.” Id. “Plausibility . . . depends on a host of considerations:

the full factual picture presented by the complaint, the particular cause of action and its elements,

and the existence of alternative explanations so obvious that they render plaintiff’s inferences

unreasonable.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011).

In considering a motion to dismiss, a court must accept as true all well-pleaded facts

alleged in the complaint and must draw all reasonable inferences in the plaintiff’s favor. Kassner

v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). A complaint need not make

“detailed factual allegations,” but it must contain more than mere “labels and conclusions” or “a

formulaic recitation of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (internal

quotation marks omitted). Finally, although all allegations contained in the complaint are

assumed to be true, this tenet is “inapplicable to legal conclusions.” Id. A complaint is “deemed

to include any written instrument attached to it as an exhibit or any statements or documents

incorporated in it by reference.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.

2002) (quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.

1995)).

Even after Twombly and Iqbal, a “document filed pro se is to be liberally construed and

. . . must be held to less stringent standards than formal pleadings drafted by lawyers.” Bennett

v. City of New York, 425 F. App’x 79, 80 (2d Cir 2011) (summary order) (quoting Boykin v.

KeyCorp., 521 F.3d 202, 214 (2d Cir. 2008). Further, pleadings of a pro se party should be read

“to raise the strongest arguments that they suggest.” Kevilly v. New York, 410 F. App’x 371, 374

(2d Cir. 2010) (summary order) (citation omitted). Nevertheless, dismissal of a pro se complaint

is appropriate where a plaintiff fails to state a plausible claim supported by more than conclusory

factual allegations. See Walker v. Schult, 717 F.3d 119, 124, 130 (2d Cir. 2013). In other words,

the “duty to liberally construe a plaintiff’s complaint is not the equivalent of a duty to re-write

it.” Geldzahler v. N.Y. Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (citation omitted).

B. Fed. R. Civ. P. 21

Pursuant to Rule 21 of the Federal Rules of Procedure, “on its own, the court may at any

time, on just terms, add or drop a party. Fed. R. Civ. P. 21. The court may also sever any claim

against a party.” This rule “affords courts discretion to shape litigation in the interests of

efficiency and justice.” Ponce-Melendres v. Doe Orange Cnty. Jail Admin. Off., 7:20-CV-7710

(VB), 2020 WL 7343025, at *1 (S.D.N.Y. Dec. 14, 2020) (quoting Anwar v. Fairfield

Greenwich, Ltd., 118 F. Supp. 3d 591, 618-19 (S.D.N.Y. 2015). “In determining whether to

sever a claim, the court considers the two requirements of Rule 20 and additional factors,

including”:

(1) whether severance will serve judicial economy; (2) whether prejudice to the

parties would be caused by severance; and (3) whether the claims involve different

witnesses and evidence . . . . Put another way, courts look to the logical relationship

between the claims and determine whether the essential facts of the various claims

are so logically connected that considerations of judicial economy and fairness

dictate that all the issues be resolved in one lawsuit.

Clay v. Doe, No. 20-CV-07692 (PMH), 2020 WL 6151436, at *2 (S.D.N.Y. Oct. 20, 2020)

(internal quotation marks omitted.)

Discussion

A. Sections 1981 & 1983

1. Applicable Law

Section 1981 provides, in pertinent part, that “[a]ll persons . . . shall have the same right

. . . to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981. To

state a claim under § 1981, a plaintiff must allege facts showing that (1) the plaintiff is a member

of a racial minority; (2) the defendant intentionally discriminated on the basis of race; and (3) the

discrimination concerned one of the statute’s enumerated activities. See Brown v. City of

Oneonta, 221 F.3d 329, 339 (2d Cir. 2000). It has been recognized that admission to an

educational program is sufficiently contractual in nature to fall within the purview of § 1981.

See Runyon v. McCrary, 427 U.S. 160, 172 (1976).

Section 1983 provides a civil claim for damages against “[e]very person who, under color

of any statute . . . of any State . . . subjects, or causes to be subjected, any citizen . . . to the

deprivation of any rights, privileges, or immunities secured by the Constitution . . . .” 42 U.S.C.

§ 1983. “To state a claim under § 1983, a plaintiff must allege that defendants violated

plaintiff’s federal rights while acting under color of state law.” McGugan v. Aldana-Bernier,

752 F.3d 224, 229 (2d Cir. 2014). Section 1983 does not establish substantive rights, but

provides a means of redress for the deprivation of rights established elsewhere. Sykes v. James,

13 F.3d 515, 519 (2d Cir. 1993). Additionally, “[i]n this Circuit personal involvement of

defendants in alleged constitutional deprivations is a prerequisite to an award of damages under §

1983.” McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977).

Courts within this Circuit have concluded that “[a]n individual may be held liable under

§§ 1981 and 1983 only if that individual is personally involved in the alleged deprivation.”

Littlejohn v. City of New York, 795 F.3d 297, 314 (2d Cir. 2015) (internal quotation marks

omitted). Personal involvement can be shown by evidence that:

(1) the defendant participated directly in the alleged constitutional violation, (2) the

defendant, after being informed of the violation through a report or appeal, failed

to remedy the wrong, (3) the defendant created a policy or custom under which

unconstitutional practices occurred, or allowed the continuance of such a policy or

custom, (4) the defendant was grossly negligent in supervising subordinates who

committed the wrongful acts, or (5) the defendant exhibited deliberate indifference

. . . by failing to act on information indicating that unconstitutional acts were

occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).

2. Application

Defendants argue that Plaintiff fails to allege claims for individual liability pursuant to §§

1981 and 1983 because Plaintiff cannot “demonstrate that any member of the CUNY Board,

Milliken, Raab, or Nord knew about, directly participated in, or helped create an admissions

policy with intent to discriminate,” and as such, “should be dismissed from this action pursuant

to Rules 12(b)(6) and 21 of the Federal Rules of Civil Procedure because they are not proper

parties to this action.” (Defs.’ Mem. 9.)7 I essentially rejected these arguments in my March 18,

2019 Opinion & Order. (Doc. 65 at 20-21.) However, Defendants ask that I reconsider my

decision to uphold Plaintiff’s §§1981 and 1983 claims against Defendants because I relied

exclusively on Colon v. Coughlin and may not have sufficiently considered Ashcroft v. Iqbal’s

heightening of the pleading standard for personal involvement. (Defs.’ Mem. 8–9; Defs.’ Rpl.

Mem. 4–5.)8

Under the law of the case doctrine, “when a court has ruled on an issue, that decision

7 “Defs.’ Mem.” refers to the Memorandum of Law in Support of Defendants’ Motion to Dismiss the Second

Amended Complaint, filed on December 6, 2019. (Doc. 104.)

8 “Defs.’ Rpl. Mem.” refers to the Reply Memorandum of Law in Support of Defendants’ Motion to Dismiss the

Amended Complaint, filed on April 20, 2020. (Doc. 120.)

should generally be adhered to by that court in subsequent stages in the same case.” United

States v. Carr, 557 F.3d 93, 102 (2d Cir. 2009) (internal quotation marks omitted). This

principle is motivated “by considerations of fairness to the parties, judicial economy, and the

societal interest in finality.” Id. However, “a court’s reconsideration of its own earlier decision

in a case may . . . be justified in compelling circumstances, consisting principally of (1) an

intervening change in controlling law, (2) new evidence, or (3) the need to correct a clear error of

law or to prevent manifest injustice.” Id. According to defendants, Iqbal heightened the

standard established in Colon. Defendants rely primarily on Grullon v. City of New Haven, 720

F.3d 133 (2d Cir. 2013) and Sash v. United States, 674 F. Supp. 2d 531 (S.D.N.Y 2009) to

support their assertion. (Defs.’ Mem. 8.)

Although the Second Circuit has acknowledged that the standard articulated in Iqbal

“may have heightened the requirements for showing a supervisor’s personal involvement with

respect to certain constitutional violations,” Grullon, 720 F.3d at 139 (2d Cir. 2013), it “[has] not

yet determined the contours of the supervisory liability test . . . after Iqbal.” Raspardo v.

Carlone, 770 F.3d 97, 117 (2d Cir. 2014). In light of this, district courts in this Circuit have not

consistently applied the heightened standard Defendants claim has superseded the Colon factors.

Some District Courts in this Circuit have continued applying all five Colon factors. See Allah v.

Annucci, No. 16-CV-1841 (KMK), 2017 WL 3972517, at *6 (S.D.N.Y. Sept. 7, 2017) (quoting

El–Hanafi v. United States, No. 1:13–cv–2072–GHW., 2015 WL 72804, at *13 (S.D.N.Y. Jan. 6,

2015)) (On balance, “the majority of the district courts . . . have held that, absent any contrary

directive from the Second Circuit, all five Colon factors survive where the constitutional

violation at issue does not require a showing of discriminatory intent.”); K.A. v. City of New

York, 413 F. Supp. 3d 282, 300 (S.D.N.Y. 2019) (applying all five Colon factors in determining

that Plaintiffs failed to adequately allege that individual defendants directly denied their request

to be treated by women physicians); Phillips v. City of Middletown, No. 17-CV-5307 (CS), 2018

WL 4572971, at *8 (S.D.N.Y. Sept. 24, 2018) (applying all five Colon factors in determining

Plaintiff failed to allege supervisory liability). Other courts have determined that the Colon

factors apply “where the claim does not require a showing of discriminatory intent . . . insofar as

it is ‘consistent with the particular constitutional provision alleged to have been violated.’”

Delgado v. Bezio, No. 09 CIV. 6899(LTS), 2011 WL 1842294, at *9 (S.D.N.Y. May 9, 2011)

(quoting Qasem v. Toro, 737 F. Supp. 2d 147, 151–52 (S.D.N.Y. 2010)); Lebron v. Mrzyglod,

No. 14-CV-10290 (KMK), 2017 WL 365493, at *4 (S.D.N.Y. Jan. 24, 2017) (“The Court agrees

with those cases holding that Colon still controls with respect to claims that do not require a

showing of discriminatory intent.”). Other courts first evaluate the claim under the Colon

standard and, if the claim fails under the Colon factors, there is no need to proceed to Iqbal’s

heightened standard. See Valverde v. Folks, No. 1:19-cv-08080-MKV, 2020 WL 5849515, at *6

(S.D.N.Y. Sept. 30, 2020).

Defendants have failed to demonstrate that the pleading standards articulated in Iqbal

constitute an intervening change in law. As noted, many courts in this district continue to apply

all five Colon factors after Iqbal. Therefore, I decline to reverse my prior finding that Plaintiff

has sufficiently alleged facts demonstrating that Defendants Rose, Raab, Milliken, Seal, Nord

and members of the CUNY Board of Trustees were personally involved in implementing,

reforming, and/or overseeing the admissions process.

B. Joinder

Next, Defendants argue that dismissal of the CUNY Board of Trustees, Milliken, Raab

and Nord “would not require joinder of other former CUNY Board members or any additional

parties”, under Fed. R. Civ. P. 19. (Defs.’ Mem. 14.) Defendants argue that none of the factors

taken into consideration under Rule 19 are applicable here, because any remaining defendants

“can effectively defend the matters at issue in this case and Plaintiff can be made whole without

the addition of further defendants.” Id.

Because I decline to dismiss any of the aforementioned parties from this suit, I need not

consider Defendants’ Rule 19 arguments.

C. Qualified Immunity

Defendants contend that the CUNY Board Members, Milliken, Raab and Nord are

entitled to qualified immunity because 1) Plaintiff has not established a right to an admissions

procedure of her choosing or that a holistic admissions procedure violates a clearly established

constitutional right; and 2) no reasonable person in Defendants’ position would have understood

their conduct to be in violation of such a right. Id. at 15. For the reasons stated below, I

conclude that based upon the allegations in the Second Amended Complaint Defendants are not

entitled to qualified immunity.

1. Applicable Law

“The doctrine of qualified immunity protects government officials performing

discretionary functions from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known.” Francis v. Fiacco, 942 F.3d 126, 139 (2d Cir. 2019) (internal quotation marks omitted).

“To be clearly established, a legal principle must have a sufficiently clear foundation in then-

existing precedent . . . [such] that every reasonable official would interpret it to establish the

particular rule the plaintiff seeks to apply.” District of Columbia v. Wesby, 138 S. Ct. 577, 589–

90 (2018). The Supreme Court has repeatedly cautioned courts “not to define clearly established

law at a high level of generality,” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (internal quotation

marks omitted), but rather to formulate the relevant legal principle with a “high degree of

specificity” so that it “clearly prohibit[s] the officer’s conduct in the particular circumstances

before him,” Wesby, 138 S. Ct. at 590 (internal quotation mark omitted). “The principles of

qualified immunity shield an officer from personal liability when an officer reasonably believes

that his or her conduct complies with the law.” Pearson v. Callahan, 555 U.S. 223, 244 (2009).

The applicability of qualified immunity is a fact-specific inquiry, and may only be

established at the motion to dismiss stage if it is “based on facts appearing on the face of the

complaint.” Felix v. New York Dep’t of Corr. & Cmty. Supervision, No. 16-CV-7978 (CS), 2018

WL 3542859, at *7 (S.D.N.Y. July 23, 2018) (quoting McKenna v. Wright, 386 F.3d 432, 436

(2d Cir. 2004)). Courts conduct a two-pronged analysis to determine whether qualified

immunity applies. Francis, 942 F.3d at 139. A plaintiff must plead facts showing “(1) that the

official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’

at the time of the challenged conduct.” Id. (internal quotation marks omitted). The district court

is within its “sound discretion” to tackle these prongs in the order it deems appropriate. Id. at

140.

2. Discussion

a. Plaintiff’s Fourteenth Amendment Claim

First, Defendants contend that Plaintiff’s right to equal protection under the Fourteenth

Amendment was not violated by the MSW Program’s decision to deny her admission.

Defendants describe CUNY’s admissions policies as the kind of holistic process that is lawful

under the Fourteenth Amendment. (Defs.’ Mem. 15–16.) Defendants further assert that the

admissions process was, as is required by law, narrowly tailored to “the twin goals of providing

equal access and opportunity to prospective social work students and creating a pipeline of social

workers who reflect New York’s diverse communities.” Id. at 16.

Next, Defendants argue that no reasonable university official would have understood that

requiring Plaintiff to disclose her citizenship, country of birth and native language in her

admission application, asking her how she would deal with people who are different from her, or

whether she was considering a degree in special education violated Plaintiff’s rights. The

questions regarding Plaintiff’s citizenship, country of birth and native language are, according to

Defendants, used to determine an applicant’s eligibility for federal financial aid and whether an

applicant should be required to submit scores from the Test of English as a Foreign Language.

Defendants assert that the question about how Plaintiff would interact with people who are

different from her makes sense in the context of the nature of social work and the legislative

mandate governing CUNY. The question regarding Plaintiff’s potential interest in special

education is, in Defendants’ estimation, not related to her being white, Jewish or female, and

could have plausibly come up in a number of permissible contexts. Id. at 17.

As I did in my March 18, 2019 Opinion & Order, I conclude once again that Plaintiff has

plausibly alleged that CUNY officials violated her rights under the Equal Protection Clause.9

The Equal Protection Clause of the Fourteenth Amendment prohibits intentional discrimination

by state actors based on race, national origin, and skin color. To establish a violation of the

Equal Protection Clause, Plaintiff must provide “proof of racially discriminatory intent or

purpose.” Reynolds v. Barrett, 685 F.3d 193, 201 (2d Cir. 2012) (internal quotation marks

omitted). Considerations of racial classifications in the admissions context must be “narrowly

tailored to further compelling governmental interests” to survive an Equal Protection challenge.

9 I note that Plaintiff’s Second Amended Complaint relies on the same facts that I found sufficient to support her

claim of a Fourteenth Amendment violation in my March 18 Opinion & Order.

Fisher v. Univ. of Texas at Austin, 570 U.S. 297, 310 (2013) (internal quotation marks omitted).

The admissions process in place must be “flexible enough to ensure that each applicant is

evaluated as an individual and not in a way that makes race or ethnicity the defining feature of

the application.” Grutter v. Bollinger, 539 U.S. 306, 309 (2003).

As I determined in my March 18 Opinion & Order, Plaintiff sufficiently alleged that

CUNY Defendants, all of whom had control and influence over the MSW Program’s admissions

procedures and policies, “either directly established an unconstitutional admissions process, or

allowed its continuance.” (Doc. 65 at 14). I noted that Dean Rose’s alleged comments regarding

Plaintiff’s ethnicity, specifically his statements asserting that “[t]he Silberman School conducted

the group admissions interviews to weed out conservatives, because Trumps and Cruzes can’t be

social workers” and that “Jews from religious backgrounds are too conservative to be social

workers,” (SAC ¶ 99), “sufficiently demonstrate a racially discriminatory intent or purpose in the

admissions process to support a claim for an Equal Protection Clause violation based on race,

national origin, and/or skin color against Defendants Rose, Raab, Milliken, Seal, Nord and

members of the CUNY Board of Trustees.” (Doc. 65 at 15.)

I also conclude that Plaintiff’s right was a clearly established one of which a reasonable

official would have known. A right is clearly established where the “contours of the right [are]

sufficiently clear that a reasonable official would understand that what he is doing violates that

right.” Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 60 (2d Cir. 2014) (internal quotation

marks omitted). “The salient question . . . is whether the case law at the time in question would

have put reasonable officers on fair warning that their conduct violated the plaintiff’s rights.” Id.

(internal quotation marks omitted). As I noted above, the Supreme Court has consistently

determined that admissions processes must be “narrowly tailored to further compelling

governmental interests” to survive an Equal Protection challenge. Fisher, 570 U.S. at 310; see

also Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 702 (2007)

(concluding that “school districts must demonstrate that their use of such classifications is

narrowly tailored to achieve a compelling government interest.”) (internal quotation marks

omitted). Reasonable CUNY officials would have been on notice that an admissions interview

intended to “weed out conservatives, because Trumps and Cruzes can’t be social workers” and

the assertion that “Jews from religious backgrounds are too conservative to be social workers”

violated Plaintiff’s right under the Equal Protection Clause. (SAC ¶ 99.)

b. Plaintiff’s Establishment Clause Claim

Defendants also argue that Plaintiff’s rights under the Establishment Clause were not

violated because Defendants considered her religion and religious upbringing. (Defs.’ Mem. 18.)

Defendants note that Plaintiff herself disclosed this information in her personal statement.

Defendants argue that even if they considered religion, they did so while considering Plaintiff’s

application, and did not violate any clearly established right. Id. Although Defendants believe

Plaintiff has failed to demonstrate that her religion or religious upbringing resulted in her being

denied admission to the MSW program, they contend that even if Defendants did consider both,

it is reasonable for a university official to consider any information an applicant submits to

demonstrate that she qualifies for admission. Id. at 19.

I find that Plaintiff has plausibly alleged that Defendants violated her rights under the

Establishment Clause. The First Amendment provides that “Congress shall make no law

respecting an establishment of religion.” The Establishment Clause prohibits “excessive

government entanglement with religion.” Rweyemamu v. Cote, 520 F.3d 198, 208 (2d Cir. 2008)

(citation omitted). “The Establishment Clause requires that government programs remain neutral

toward religion,” and the “First Amendment forbids an official purpose to disapprove of a

particular religion or of religion in general.” Muhammad v. City of New York Dep’t of Corr., 904

F. Supp. 161, 197 (S.D.N.Y. 1995) (citation omitted).

In my March 18 Opinion & Order, I concluded that Plaintiff plausibly alleged an

Establishment Clause claim. (Doc. 65 at 18.) Plaintiff relies on the same facts in in her Second

Amended Complaint to allege that religion was a factor in the MSW Program’s admissions

decision and that the school is less inclined to admit “Jews from religious backgrounds” because

they are “too conservative to be social workers.” (SAC ¶ 99.)

I also find that reasonable university officials would have understood that they were

violating Plaintiff’s First Amendment Rights. Although, as Defendants argue, Plaintiff may have

voluntarily disclosed her religion, (Defs.’ Mem. 19), such a disclosure did not open the door for

Defendants to consider her religion in a manner that controverts the First Amendment. A

reasonable official would have known that disfavoring an applicant because she is Jewish would

fly in the face of the Establishment Clause’s mandate that government entities “remain neutral

toward religion.” Muhammad, 904 F. Supp. at 197.

D. Plaintiff’s Claims Against AG James

Plaintiff sues AG James in both her official and individual capacity. For the reasons set

forth below, Plaintiff’s claims against AG James are dismissed.

1. Official Capacity Claims

a. Applicable Law

“[A]s a general rule, state governments may not be sued in federal court unless they have

waived their Eleventh Amendment immunity or unless Congress has abrogated the states’

Eleventh Amendment immunity. . . .” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009)

(internal quotation marks omitted). This immunity shields States from claims for money

damages, injunctive relief, and retrospective declaratory relief. See Green v. Mansour, 474 U.S.

64, 72–74 (1985); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101–02 (1984).

The Eleventh Amendment further extends sovereign immunity to actions against state officials

sued in their official capacities “where the relief granted would bind the state or where the state

is the real party in interest.” Russell v. Dunston, 896 F.2d 664, 667 (2d Cir.1990); McAllan v.

Malatzky, No. 97 Civ. 8291 (JGK), 1998 WL 24369, at *4 (S.D.N.Y. Jan. 22, 1998), aff’d, 173

F.3d 845 (2d Cir. 1999); see, e.g., Gollomp, 568 F.3d at 366 (“[T]he immunity recognized by the

Eleventh Amendment extends beyond the states themselves to state agents.”) (internal quotation

marks omitted).

b. Application

Defendants assert that Plaintiff’s claims against AG James in her official capacity are

barred under the Eleventh Amendment. Defendants contend that New York has not consented to

be sued under § 1983, and that Congress did not intend for § 1983 to override states’ sovereign

immunity. (Defs.’ Mem. 20.) Next, Defendants argue that the exception to state officials’

immunity under the Eleventh Amendment does not apply in this instance because 1) Plaintiff

does not allege an ongoing violation of federal law; and 2) the relief sought against AG James is

invalid because “mandamus is not available to compel a discretionary act,” and compelling the

NYAG to investigate CUNY’s allegedly discriminatory conduct would interfere with AG James’

prosecutorial discretion.” (Defs.’ Mem 21.)

Plaintiff claims that, viewed in the light most favorable to her, the facts stated in her

Second Amended Complaint sufficiently allege that AG James aided in the discriminatory

activity. Plaintiff also contends that dismissing the claims against AG James at this stage would

be premature, as the parties have not engaged in adequate discovery. Plaintiff believes further

discovery will bolster her claims against AG James. (Pl. Opp. 17–18.)

On the basis of New York State’s Eleventh Amendment immunity, I bar Plaintiff’s

damages claims brought under § 1981 and § 1983 against AG James. However, Plaintiff’s

claims for injunctive relieve require a closer look. Plaintiff requests that I “[e]nsure that Ms.

James recuses herself from defending CUNY et. al. and provide the same legal services to

American born citizens that is provided to non-citizens/immigrants/DACA recipients” and

“[e]nsure that Ms. James investigate[s[ the discriminatory activities of CUNY employees and

stop the discriminatory activities.” (SAC at 21.) “The Eleventh Amendment does not bar claims

for prospective injunctive relief against state officials.” Taylor v. NYC, 20-cv-5036 (MKV),

2020 WL 4369602, at *3 (S.D.N.Y. July 30, 2020). Although Plaintiff may seek prospective

injunctive relief, “federal courts have no general power to compel action by state officials.”

Tatum v. City of New York, 104 F.3d 351 (2d Cir. 1996). As such, the injunctive relief Plaintiff

seeks against AG James in unavailable. See Smith v. United States, No. 1:12–CV–00846

(LEK/RFT), 2014 WL 1312137, at *5 (N.D.N.Y. Mar. 31, 2014) (concluding that “Plaintiff's

claims against Defendant . . . the New York State Attorney General fall under the ambit of suits

precluded by these well-established principles of sovereign immunity and are therefore barred by

the Eleventh Amendment.”)

2. Individual Capacity Claims

Defendants also argue that Plaintiff failed to state a cognizable claim against AG James

in her individual capacity. Plaintiff cannot, according to Defendants, demonstrate a causal link

between AG James and the alleged discriminatory action, nor can she establish that AG James

was personally involved in the alleged violations. (Defs.’ Mem. 22.) With regard to Plaintiff’s

claim that AG James was the Attorney General of New York during the relevant time period,

Defendants contend that the mere fact that AG James is currently the Attorney General of New

York is insufficient to demonstrate liability, and also allege the events took place before AG

James was elected. Id. at 22–23.

I rely on the same Colon factors enumerated above to determine that Plaintiff has failed

to state a claim against AG James in her individual capacity. Plaintiff’s claims do not satisfy any

of the Colon factors. While AG James is a state official, Plaintiff cannot demonstrate that (1)

AG James had any part in denying her admission to the MSW Program; (2) AG James was

involved in crafting the admissions policy under which Plaintiff was denied admission; or (3)

that AG James had any role in supervising the CUNY officials involved in denying Plaintiff

admission to the MSW Program. For these reasons, Defendants’ motion is GRANTED, and

Plaintiff’s claims against AG James in her individual capacity are dismissed.

E. New York State Human Rights Law Claims

Plaintiff argues that her claims under New York State Human Rights Law §§ 292 and

296—which I dismissed in my March 18 Opinion & Order—should be reconsidered in light of

an intervening change in the law. (Pl.’ Rlp. 18.) Plaintiff contends that N.Y. Exec Law § 296

(6) was amended on July 26, 2019 to define educational institutions to include public colleges

and universities. Id at 19. As such, Plaintiff argues that New York State Human Rights Law §§

292 and 296, which I held applied only to private educational institutions, should be understood

to apply to public universities and colleges as well. Id.

I decline Plaintiff’s request to reinstate her claims under New York State Human Rights

Law §§ 292 and 296. As Defendants point out, “it takes a clear expression of the legislative

purpose . . . to justify a retroactive application of a statute.” Regina Metro. Co., LLC v. New

York State Div. of Hous. & Cmty. Renewal, 154 N.E.3d 972, 992 (N.Y. 2020), reargument

denied sub nom. Raden v. W7879, LLC, 154 N.E.3d 12 (N.Y. 2020), and Taylor v. 72A Realty

Assocs., L.P., 154 N.E.3d 14 (N.Y. 2020) (international quotation marks omitted). While § 292

now defines educational institutions to include public institutions, it expresses no intent to apply

the amendment retroactively. Further, “courts to date have held that the 2019 NYSHRL

amendments are not retroactive.” McHenry v. Fox News Network, LLC, No. 19 Civ. 11294

(PAE), 2020 WL 7480622, at *8 (S.D.N.Y. Dec. 18, 2020); Deveaux v. Skechers USA, Inc., No.

19CV9734 (DLC), 2020 WL 1812741, at *3 n.3 (S.D.N.Y. Apr. 9, 2020) (quoting Gold v. New

York Life Ins. Co., 730 F.3d 137, 143 (2d Cir. 2013)) (“Because neither the text nor the

legislative history of the statute mentions retroactivity, there is no ‘clear expression of the

legislative purpose to justify a retroactive application’ of the [NYSHRL amendments].”)

Therefore, I will not reinstate Plaintiff’s claims under New York State Human Rights Law §§

292 and 296.

Conclusion

For the reasons stated herein, Defendants’ motion to dismiss is GRANTED in part and

DENIED in part. Specifically, Defendants’ motion to dismiss Plaintiff’s claims against AG

James in her official and individual capacities is GRANTED and those claims are dismissed.

Defendant’s motion to dismiss Plaintiff’s § 1981 and § 1983 claims against the CUNY Board of

Trustees, Milliken, Raab, and Nord is DENIED. I decline to revive Plaintiff’s claims under New

York State Human Rights Law §§ 292 and 296.

The Clerk of Court is respectfully directed to terminate the open motion at Doc. 101 and

mail a copy of this Opinion & Order to the pro se Plaintiff.

Defendants shall file an Answer to the Second Amended Complaint within twenty-one

days of the date of this Opinion & Order.

SO ORDERED.

Dated: July 2, 2021

New York, New York /

Vernon S. Broderick

United States District Judge

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