Tolbert v. Queens College

POLLACK, Senior District Judge,

dissenting:

I respectfully dissent.

The plaintiff brought this suit because he was not granted a Master’s Degree in Communications. He did not submit evidence that he was entitled thereto or that he failed to receive the degree because of illegal discrimination against him as a Black-American.

The district court should have granted the motion by defendants for summary judgment. In opposition to the motion, the plaintiff failed to submit any cognizable evidence which entitled him to have his examination papers marked “Pass” by the college review *140 ers thereof. To the contrary, in the opinion of the several reviewers who read and evaluated the required papers, the substance of plaintiffs papers failed to respond properly and adequately to the matters to be covered and answered, and the reviewers had a right to believe that the plaintiff was not entitled on his submissions to the award of a Master’s Degree thereon.

This was all explained to the plaintiff at the post-exam meeting attended by the plaintiff and his professors to discuss the substantive inadequacy of his test papers. He was given an opportunity, which he rejected, to try again and did not supply an explanation for or correct his deficiencies. He countered by saying that Chinese candidates had passed the exams, albeit with insufficient grammar and faults in writing English. He was not faulted on those superficial grounds in which slack was cut for Chinese applicants. The School was not obligated to award the Masters Degree demanded by the plaintiff, except on satisfaction of its substantive requirements. The plaintiff did not establish his satisfaction thereof or even attempt to establish entitlement to a degree on the basis of the answers he had submitted. The individual reviewers were entitled as a matter of law to the protection of qualified immunity from suits such as this based on the unanswered shortcomings of the responses to the exam questions submitted by the plaintiff.

The plaintiff, a troubled individual (as clearly established by his deposition), attributed the stamp of disapproval of his responses by self-evident routine assertions in his legal submissions. His testimony was only that there had been a longstanding prejudice against him. He asserted as legal cause for the suit that the defendants engaged in “[a] pattern over the years of constant ... harassment, vacillation, implicitness, [and] changes of assignment,” Deposition of Derek I. Tolbert, dated July 21, 1997, at 125, and that they “discriminated against [him] at the outset, most of it racial, most of it for other reasons,” id. at 126. However, plaintiffs answering documents on the motion for summary judgment were devoid of the slightest evidentiary backing of illegal prejudice against him from the start of his candidacy for the degree or at any time.

An award of a Master’s Degree by an institution of higher learning cannot be claimed, as it is here, on the basis of inadequate and unacceptable exam papers or references to the foot-faults of other candidates. The school’s opinion thereon of the adequacy of the submissions is controlling on a candidate, regardless of the origins of the candidate and language difficulties or proficiency in grammar or writing possessed by the candidate, whether of Chinese or Black-American extraction.

The district court lost sight of the relevant issue in this litigation, namely: did the exams submitted by the plaintiff satisfy the requirements of the donors of the degree? The school’s views thereon, not those of the plaintiff, were controlling. The adequacy of the candidate’s responses to the questions is not a matter for the determination of a jury, which cannot award the school’s degree. The plaintiffs self-proclaimed sufficiency in English expression and grammar, as contrasted with that of unidentified Chinese candidates for whom the professors allegedly cut slack in connection with their English expression and grammar, did not excuse the particular and different substantive inadequacies of the plaintiff in his examination papers. Plaintiff suffered no damages; his papers were not faulted by the school because of the slack in expression cut for others, who were not identified or even shown to have participated in these particular examinations.

I would reverse and grant summary judgment for the defendants, or at least return the case to the district court for a more comprehensive review of the motion for summary judgment.