Wednesday, April 29, 2009
The lawsuit by Roy Den Hollander against Columbia University's Institute for Research and Gender at Columbia University has provoked a spate of media coverage including the most recent NYT article reporting on the dismissal of the lawsuit. With a bit of tinkering, this litigation could be adapted to a constitutional law examination with any number of issues.
Magistrate Judge Kevin Fox recommended dismissal of the complaint based upon standing. Fox's order, available at 2009 WL 1025960, provides:
The plaintiffs' alleged injury, which is purportedly based upon the content of, or the discriminatory impact flowing from, the Women's Studies program at Columbia, is not an “injury in fact,” since the plaintiffs do not allege they enrolled in a Women's Studies course(s) at Columbia that caused them to suffer a direct injury occasioned by firsthand exposure to the content of the Women's Studies course(s), or that they were discriminated against, by being denied the opportunity to participate in Columbia's Women's Studies program.
In support, the Magistrate Judge cites Moose Lodge No. 107 v. Irvis, 407 U .S. 163 (1972) (finding that the plaintiff lacked standing to challenge the Moose Lodge's racially discriminatory membership policy, because he never applied for membership). The Magistrate's discussion signals the equal protection issue lurking here. Of course, had the analysis proceeded further, Moose Lodge would also be pertinent to deciding the state action issue, given that Columbia University is not a public university.
The District Judge, Lewis Kaplan, adopted the Report and Recommendation in his Order. Although brief, Judge Kaplan's Order made three additional points. First, Judge Kaplan rejected the notion that Magistrate Fox should have recused himself because he is a graduate of Columbia University. Second, Judge Kaplan considered an objection to the Magistrate's description of the action as being brought pro se. As Kaplan noted, this is not true as a "purely technical matter" since Hollander is an attorney and the second plaintiff in the case, but even if true such an argument "betrays a remarkable instinct for the capillaries" given that the pro se designation actually worked to Hollander's benefit under the more liberal pleading rules afforded pro se litigants. Third, Kaplan stated:
In his final paragraph, the judge labels the claim "absurd" and dismissed the case.