Sotomayor Held That To “Cut Slack” For Chinese ESL Students On A Written Exam Was Racial Discrimination Against A Black Student

Recently the Chronicle of Higher Education ran an article noting that “Supreme Court Nominee Was on the Side of Minorities in Key Cases,” one of which supported “an individual student who challenged a grading policy as discriminatory.”

In that case, Tolbert v. Queens College, the trial-court jury had found that the college had discriminated against a black graduate student on the basis of race by failing him on his final examinations, while giving Chinese students who spoke English as a second language more “slack” in completing their exams. The trial-court judge reversed the jury’s verdict, but the Second Circuit appellate panel ruled that there was strong-enough evidence to sustain the original verdict. Judge Sotomayor did not write the opinion in that case.

Tolbert, it turns out, is a fascinating case. Derek Tolbert was a black teacher in the New York City public schools who attempted to get a Master’s degree in Media Studies at Queens College. After failing the comprehensive exam, he sued the college and several professors for racial discrimination (whom I’ll call “the college”). The college sought summary judgment on several grounds — among them, that the exam was graded blind, so that the professors did not know which one was Tolbert’s; that “cutting slack” for several Chinese students on their grammar and use of language did not discriminate against Tolbert; that Tolbert refused an offer to take the exam again — but the request was denied. “The issue for this Court,” the trial judge held,

is not whether or not it would agree with how this exam was graded; it’s whether the school has established … different criteria for Chinese E.S.L. students than it has for others and whether that’s based in part on the race of those individuals or their ethnicity.

I think it may be a very weak case for plaintiff, I have to say that, but I’m not sure I can grant summary judgment. A whole lot has to be resolved from hearing these people. It may very well be that the jury is totally persuaded that the blind nature of this exam couldn’t have penalized Mr. Tolbert at all, but I don’t think I can grant summary judgment.

The college appealed, and a panel of the Second Circuit upheld the denial of summary judgement by a 2 –1 vote and sent the case back for trial.(Judge Sotomayor was not on this panel; she was on a later one that the Chronicle should have cited.) The majority agreed with the district court, stating that

the [“cutting slack”] statements attributed to Liebman by Tolbert … could be interpreted by a rational factfinder as reflecting a grading policy designed to give preferential treatment to certain students at least in part because of their ethnic background. Appellants do not even remotely suggest that they would be entitled to qualified immunity if, in grading the examinations, they discriminated on the basis of race or ethnicity.

Dissenting, Judge Milton Pollak found Tolbert “a troubled individual” who

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 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 plaintiff’s 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.

The resulting trial in the United States District Court for the Eastern District of New York was presided over by Judge Bernard A. Friedman, sitting by designation. That name may be familiar to some of you because that is the same Judge Friedman who wrote a masterful opinion (discussed here) a few years after this case upholding Barbara Grutter’s claim of discrimination against the University of Michigan Law School, an opinion that the Supreme Court, in one of its saddest hours, unfortunately refused to follow.

In a preview of things to come, Judge Friedman showed that same brilliance here. When the jury, in its wisdom, awarded Tolbert $50,000 in punitive damages, Judge Friedman set aside the verdict and ruled for the defendants as a matter of law, finding a “complete lack of evidence to support the jury’s finding as to liability.” There “is simply no evidence,” Judge Friedman held,

from which a reasonabl[e] jury could have found that Professor Liebman’s comment regarding cutting slack for Asian or Chinese or ESL students meant that Professor Liebman, or the media studies department generally, had a racially discriminatory grading policy. Professor Liebman’s comment was ambiguous and it is not, on its face, indicative of any such discrimination. Moreover, the only evidence explaining the comment indicates that students who do not speak English as their native language were “cut slack” only in the sense that grammatical, punctuation and spelling errors were overlooked. . . . There is absolutely no evidence whatsoever to support a finding that these students were “cut slack” on matters of substance. In fact, the only evidence on this particular point was to the effect that the substance of every student’s examination was graded in the same manner, and that a student’s race or ethnicity played no role whatsoever in the evaluation. . . . In short[,] there is a complete lack of evidence to support plaintiff’s contention that Professor Liebman’s comment demonstrates the existence of a racially discriminatory grading policy. All of the evidence is to the contrary.

On this record — again, viewing the evidence in the light most favorable to plaintiff and drawing all reasonable inferences in his favor — there is no conceivable way a reasonable jury could have found that Professor Liebman discriminated against plaintiff based on his race in giving his examination a failing grade. Nor, for the same reason, could a reasonable jury have found that Professor Cairns discriminated against plaintiff by failing to intervene when Professor Liebman made his “cut slack” comment or by failing to take any other action against the allegedly discriminatory grading policy. Since plaintiff failed to prove the existence of any such policy, and since defendants[] conclusively disproved its existence, there is no basis to plaintiff’s argument that Professor Cairns had [a] duty to intervene. A fortiori, there is no basis at all for the jury’s award of punitive damages against either Professor Liebman or Professor Cairns, as there was no evidence that they discriminated against plaintiff to even the slightest degree, to say nothing of the “malice,” “evil motive” or “reckless indifference” which must be proven in order to support an award of punitive damages. . . . Accordingly, the court shall set aside the jury’s verdict as to Professors Liebman and Cairns and enter judgment in their favor. The verdict against the college must likewise be set aside insofar as it is based on the “cut slack” comment by Professor Liebman.

By now you can guess what happened. Tolbert appealed again, and this time his case was heard by a different three judge panel of the Second Circuit, and Judge Sotomayor was on this panel. This panel reversed Judge Friedman and reinstated Tolbert’s $50,000 award. (The quotes from Judge Friedman above are taken from this opinion.) Justice Sotomayor did not write the opinion, which was written by Judge Kearse, but there was no dissent, so she obviously agreed with it.

It is a revealing opinion, although as I shall suggest it may be useful against future Justice Sotomayor, assuming she is confirmed, in an odd but satisfying way. It is also a fertile ground for questions to her in the her upcoming hearing.

First, the panel agreed that Tolbert’s case was based on Professor Liebman’s alleged statement that the department “‘cut slack’ for Chinese students” and thus violated Tolbert’s civil rights by “denying him the Master’s degree in Media Studies by applying standards based in whole or in part on students’ race and/or ethnic origin.” Moreover, the panel held,

[t]here is of course no question that the “cut slack” statement was the linchpin of Tolbert’s case. It was a statement that openly expressed a differential in treatment in response to an explicit inquiry on the matter of ethnicity. The ultimate question was what was meant by the statement “we cut slack” with respect to Chinese students…. Such ambiguities are to be resolved by the factfinder, not by the court as a matter of law; and in parsing the meaning of that ambiguous statement, the jury was entitled to look both at the statement itself and at evidence of the circumstances in which it was made.

Was there a difference in the standards by which the Department graded examination essays? The jury could so infer from the ordinary meaning of to “cut slack,” which is to apply a relaxed standard. Did that statement differentiate only between content and writing style, as defendants contended at trial, or did it instead refer to a differentiation between groups of students? The jury could infer that the “cut slack” statement referred to differentiation between groups…. Was the differentiation based on ethnicity? The jury could infer that it was, because the “cut slack” statement was the direct response to Tolbert’s question as to how his writing could have been viewed as more flawed than that of the Chinese students. Was a differentiation based on ethnicity a Department policy? The jury could infer that it was from the facts that Liebman stated “we cut slack” (emphasis added); that he made that statement in the presence of Cairns, the Department chair, and Cairns not only did not inquire as to what Liebman meant but confirmed his statement by nodding in response to Meltzer’s inquiry; and that the statement was not a stray remark in a corridor by a person who was not a decisionmaker, but rather was a statement by a professor in the Department in direct response to a question focusing on ethnicity, in a meeting called by the Department chair expressly for the purpose of discussing why Tolbert had been graded as he had.

“In sum,” the panel concluded,

the evidence permitted inferences … that the Department had intentionally injected consideration of ethnicity into its exam-grading decisions and applied a more rigorous standard to Tolbert than to students of other ethnicity.

There was a bit more to the case, and to the panel’s opinion, but I’ve presented the guts of it, as well as what I think is a fascinating window into Judge Sotomayor’s approach to race issues that come before her. (It would also take a person of far larger spirit than I not to pause here to wonder whether Sotomayor herself ever had any slack cut for her because she somehow graduated from a Catholic high school, Princeton, and Yale Law School and served on the federal bench while believing that “in Spanish we do not have adjectives. A noun is described with a preposition,” as I discussed here.)

So, on the basis of this record, Sotomayor agrees that a) a “differential in treatment” of students from different racial or ethnic groups is discriminatory; b) mere “consideration of ethnicity” that leads to applying “a more rigorous standard” to students of one racial or ethnic group is a violation of Title VI and presumably other prohibitions against racial discrimination; c) that if “a differentiation based on ethnicity” is “Department policy” or if there is a “a difference in the standards by which the Department graded examination essays” according to race or ethnicity that department can be held liable for racial discrimination.

Would someone please ask Judge Sotomayor why the criteria she used to award Mr. Tolbert $50,000 because some Chinese students were allowed to take a dictionary into an exam would not, if fairly applied, prohibit all race preference programs that permeate higher education today?