Legal Insurrection Sues SUNY Upstate Medical Univ. Over Refusal To Produce Critical Race Training Records

WILLIAM A. JACOBSON APR 8, 2021 7:30 PM

In December 2020, after a tip from a concerned person, Legal Insurrection documented the administratively-driven racial identity politics that were consuming the Upstate Medical Center in Syracuse, NY, which is part of the State University of New York (SUNY) system.

We documented what was publicly available in our post, Investigation: Racial Identity Politics Consumes SUNY Upstate Medical University. The agenda was advanced through an Diversity Task Force and Implementation and Oversight Tiger Teams to push racial identity politics deep into all aspects of the medical university, from education to admissions to hiring to promotion. Intermediate-term action items for the Education and Training Tiger Teams include the following:

• implement required longitudinal bias mitigation training for faculty;
• implement required faculty development focused on understand and teaching content related to the role of racism and implicit bias in health disparities;
• implement longitudinal continuing education in bias mitigation for clinicians;
• offer a required short course for all incoming/newly-hired faculty orienting them to social justice and to Upstate’s mission and culture, including an introduction to local history related to social justice;
• implement longitudinal training in implicit bias and history of racism and relationship in creating and perpetuating social disparities of health for all employees;
• offer a required short course for all incoming students, trainees and faculty and staff, orienting them to social justice and to Upstate’s mission and culture, including an introduction to local history related to social justice and brief training in bystander intervention for bias;
• create systems of positive reinforcement to encourage faculty to go beyond cursory engagement in implicit bias and antiracism training;
• offer a required interprofessional course for all Upstate students, across all programs, addressing core issues related to diversity, equity, inclusion, and belonging; and
• implement a multi-level faculty educator development program, allowing for sustainable professional development with a focus on diversity.

We also noted that together with the Washington Free Beacon, the Legal Insurrection Foundation served a New York Freedom of Information Law request on SUNY Upstate seeking documents.

In late December 2020, SUNY Upstate rejected our FOIL Request in its entirety, on the baseless claim that  the FOIL Request was “too broad in scope” and did not “reasonably describe the records sought”. We covered our administrative appeal, which we are required to do before going to court, in Legal Insurrection Appeals SUNY Upstate Medical’s Refusal To Comply With Our Records Request:

Upstate Medical’s blanket denial in the Denial Letter indicates that Upstate Medical did not make a good faith effort to comply with the FOIL Request, or that Upstate Medical took any steps to try to locate the records sought.  Moreover, in the Denial Letter, Upstate Medical did not indicate that the records sought could not be located or identified, and, given the specific description of the records sought in the FOIL Request, it is highly likely that Upstate Medical would be able to locate and identify the records sought.  Upstate Medical has not identified any other specific information it would need to perform the searches.

That administrative appeal was mostly unsuccessful, with only a narrow group of admissions forms orderd produced.

So we now have filed suit in New York Supreme Court (the trial-level court), in Onondaga County (where SUNY Upstate is located). We are represented in the lawsuit by Cameron MacDonald, Esq., of the Government Justice Center in Albany, NY, which specializes in FOIL litigation. Many thanks to them for the assistance.

Here are the pleadings we filed today:

Legal Insurrection v. SUNY Upstate Medical – Notice of Petition

Legal Insurrection v. SUNY Upstate Medical – Verified Petition with Exhibits

Legal Insurrection v. SUNY Upstate Medical – Memo of Law In Support of Petition

From our Memorandum of Law:

The case involves the unreasonable refusal of Upstate Medical even to search for records, much less produce records, based on the unfounded claim that the records request was overly broad and not sufficiently certain as to allow Upstate Medical even to identify or locate records. As discussed below, Upstate Medical’s position is preposterous given the great specificity of the records requests, which covered a limited time frame (commencing May 1, 2020) and were replete with references to specific categories of documents, often linking to the sections of Upstate Medical’s website referencing specific events, business units and persons, so that Upstate Medical would know what was requested.

We will keep you posted on the litigation. Because it is a challenge to an agency decision, the case is on a relatively fast track under Article 78 of the NY code.

What is happening at SUNY Upstate Medical is a symptom of a wider spread of Critical Race Training. We are still building out the higher ed portion of criticalrace.org, but expect to expand into professional schools, particularly medical schools where the CRT is particularly intense.

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