Columbia University's lack of ethics

SUPREME COURT OF T HE STATE OF NEW YORK
COUNTY OF NEW YORK: IAS PART 15

ELI PAINTEDCROW,
Justice Jane Solomon
Plaintiff

-against-

Index No. 2011/105631
COLUMBIA UNIVERSITY SCHOOL OF SOCIAL WORK,
SOCIAL WORK DEAN JEANETTE TAKAMURA,
SCHOOL OF SOCIAL WORK ASSOCIATE DEAN OF
ACADEMIC AFFAIRS ALLEN ZWEBEN, SENIOR

ASSISTANT DEAN FOR ACADEMIC AFFAIRS
MARIANNE YOSHIOKA, PROFS. MARION RIEDEL,
MARGARET O’NEILL, FRED SSEWAMALA,
WEN JUI HAN, and COLUMBIA SCHOOL
OF JOURNALISM PROF. HELEN BENEDICT
in their official capacities and individually,

MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’
MOTION TO DISMISS

R. 130 Statement
Aaron David Frishberg
for the Military Law Task Force
and the Disability Rights Committee

of the National Lawyers Guild
116 W. 111th Street
New York, NY 10026
212 740 4544

Attorneys for Plaintiff
On the brief:
Olivia Canlas, J.D.

TABLE OF CONTENTS
TABLE OF AUTHORITIES i
STATEMENT OF FACTS 1
LEGAL ARGUMENT
Point I. PLAINTIFF IS ENTITLED TO PREVAIL ON THIS

MOTION IF SHE HAS PLED FACTS WHICH
STATE ANY CLAIM KNOWN TO THE LAW
4
Point II PLAINTIFF STATES CLAIMS FOR VIOLATIONS OF
DISABILITY RIGHTS LAWS
6
A.. Plaintiff Was Denied Her Right to Reasonable Modification of a Program 6

B. Plaintiff States a Claim Based Upon Discriminatory Treatment
8
Point III
PLAINTIFF HAS PLEADED A CLAIM FOR RACIALLY
MOTIVATED CONSPIRACY AND FOR RACIAL
DISCRIMINATION UNDER NEW YORK CITY LAW

B. The Intracorporate Conspiracy Doctrine Does not Apply to Plaintiff’s Claims Under
42 U.S.C. § 1985 12
C. Plaintiff Was Subjected to a Conspiracy to Violate Her Civil Rights 14
Point IV PLAINTIFF IS ENTITLED TO THE PROTECTION OF THE NEW
YORK CITY HUMAN RIGHTS CODE
17
Point V PLAINTIFF STATES A CLAIM FOR SOCIAL WORK MALPRACTICE 18
CONCLUSION 20

TABLE OF AUTHORITIES

Cases

Allison v. Department of Corrections, 94 F. 3d 494, 497 (8th Cir. 1996) ................. 7
Barnes v. Gorman, 536 U.S. 181 (2002). ........................................ 7
Catero Cerezo v. United States Department of Justice, 358 F. 3d 6 (1st Cir. 2004) ........ 6
Crews v. Trustees of Columbia University, 452 F. Supp. 2d 504 (S.D.N.Y. 2006) ........ 11
Dombrowski v. Dowling, 459 F.2d 190 at 196 (7th Cir.1972) ..................... 12, 13
Garza v. City of Omaha ,814 F. 2d 553 (8th Cir. 1987) ............................. 12
Good Shepherd Manor Foundation v. City of Momence, 323 F.3d 537, 562 (7th Cir. 2003) . . 6
Gorman v. Bartch, 152 F. 2d 907, 912 (2d Cir. 1998)............................... 8
In re Estate of Marcos Human Rights Litigation, 25 F.3d 1467, 1475 (CA9 1994) ....... 16

J. P. Morgan Chase v. Electric of New York, Inc., 69 A.D. 2d 802, 893 N.Y.S.2d 237 (2d Dept.
2010) ................................................................... 4
MacDonell v. PHH Mortgage Corp., 45 A.D. 3d 537, 846 N.Y.S. 2d 223 (2d Dept. 2007)
....................................................................... 4, 9

McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000) ......... 12, 13

Moriani v. Hunter, 462 F.Supp. 353, 356 (S.D.N.Y.1978)........................... 13

Novotny v. Great American Federal Savings & Loan Ass'n , 584 F.2d 1235 (3d Cir. 1978) (en

banc), vac. oth. grds., 442 U.S. 366 (1979) .................................. 12, 13
Pennsylvania Department of Corrections v. Yeskey , 524 U.S. 206 (1998) .............. 8
Reed v. LePage Bakeries, 244 F. 3d 254, 262 n. 11 (1st Cir. 2001).................... 8
Ricci v. Stefano, 530 F. 3d 88 (2d Cir. 2008) .................................... 11
Sheila C. v. Povich, 11 A.D. 3d 120, 781 N.Y.S. 2d 342 (1st Dept. 2004) ................ 4
Sosa v. Alvarez-Machain, 542 U.S. 694 (2004) .................................. 16
The Nereida, 9 Cranch 388, 423 (1815), (Marshall, C.J..). ......................... 16

Warev. Hylton, 3 Dall. 199, 281 (1796) (Wilson, J.) ............................... 16
Williams v. New York City Transit Authority, _A.D.3d_, 872 N.Y.S. 2d 27 (1st Dept. 2009) . 17
Yeadon v. New York City Transit Auth., 719 F.Supp. 204, 212 (S.D.N.Y.1989) .......... 13

Statutes

29 U.S. C. § 794. .......................................................... 7
42 U.S.C. § 12181 (j) ....................................................... 7
42 U.S.C. § 1985 ...................................................... 12, 13
42 US.C. § 2000d ......................................................... 14

C.P.L.R. § 3211 ........................................................... 4
Education Law § 7702 ..................................................... 18
Education Law § 7701 ..................................................... 18
New York City Administrative Code § 8-107 (4) ................................... 7
New York City Administrative Code § 8-107(6) ................................... 7
New York City Administrative Code § 8-102 (16) .................................. 7
New York Civil Rights Law § 51 ............................................... 9
U.S.Const., Art. VI ........................................................ 15

Regulations

New York State Board of Regents Rules of Professional Conduct,§ 29.02 ........... 5, 18

International Treaties and Conventions

Declaration of the Rights of Indigenous Peoples ................................. 15
Nuremberg Convention of 1947 .............................................. 15

STATEMENT OF FACTS

Plaintiff, Eli PaintedCrow, is an Iraq veteran. A woman of Yaqui Indian descent, she
suffers from post-tramumtic stress disorder and depression. Her psychiatric problems are of a
level of severity such that she is unable to work. She has been found disabled by the Social
Security Administration, and is rated at one-hundred percent disabled by the Department of
Veterans Affairs. .

Helen Benedict, a Columbia University journalism professor, is the author of Lonely
Warriors, which purports to portray the victimization of PaintedCrow and other women whIo were
subject to sexual abuse and harassment while serving with United States military forces in Iraq.
A photo of Eli PaintedCrow in uniform, her name clearly visible on the shirt front, appears on the
front cover of Benedict’s book.

Around the end of November, 2010,Paintedcrow was contacted by Kalima DeSuze, a
professor at the Columbia University School of Social Work. She learned from Professor DeSuze.
that the School of Social Work faculty comprising the Capstone Project, were considering using
the portrayal of her by Helen Benedict as the basis of an assignment to graduate Social Work
students. The students, working in groups, were to make Eli Paintedcrow the subject of a social
work exercise. Taking her as she was described in Benedict’s book, each group was to use the
material to produce psychoanalytic assessments of PaintedCrow, to diagnose her psychiatric
condition, and to develop a treatment plan . Completion of this assignment was made a
requirement of graduation from the Social Work graduate program.

In mid-April, 2011, PaintedCrow learned from a friend that the Capstone professors had
gone forward with their plan to use her as a subject, assigning groups of students the task of
assessing and diagnosing her, and proposing treatment of her condition.

On April 19, 2011, Plaintiff received an e-mail from Prof. Marion Riedel, one of the

Capstone faculty members, inviting her to come to New York to be part of the panel to be held
on May 6. 2011, at the Columbia University School of Social Work, at the time the students were
presenting their papers. A series of communications followed, in which PaintedCrow expressed
her desire to come to New York immediately, to meet with the Capstone committee to attempt
to find a way for the project to go forward which would not distort her identity and add to her
psychic pain. This request was rejected, as was the request by Anu Bhagwati, the executive
director of Service Women’s Action Network, (“SWAN”), acting as PaintedCrow’s advocate, that
the Social Work school convene an Institutional Review Board, the tyoe of oversight body
required to insure that experiments involving human subjects not take place without the informed
consent of the subject and without harm to them.

The Capstone professors met with Bhagwati on April 21, 2011. On April 28, 2011,
Paintedcrow traveled from her home in California to New York at her own expense. Dean
Takamura finally agreed on May 3, 2011, to meet with Paintedcrow on May 4. However, neither
the Capstone professors nor Dean Takamura was willing to make any substantive changes to the
assignment or the public program. Takamura claimed at the meeting that she had no control of
the decision-making of the Capstone faculty, none of whom had been invited by Takamura to
attend the meeting.

Meanwhile, Dean Takamura attempted to warn off the students enrolled in the graduate
program from having any direct communication with Paintedcrow. The Capstone professors were
also unresponsive to the initiative of one of the students, who questioned the ethics of the project
as planned.

On Friday, May 6. 2011, the students posted the results of their “studies” as groups
at a gathering on the campus of Columbia University School of Social Work, except that some

students, even though aware that they were imperiling their graduation by so doing, refused on
ethical grounds to turn in studies which made Eli PaintedCrow the involuntary subject of a social
work experiment and public psychological dissection.

Plaintiff was informed by one of the Social Work students she met with in New York
that Assistant Dean Marianne Yoshioka had told the student that the selection of Plaintiff, based
on her being a Native American, was an intentional decision as part of the Capstone Project’s
effort to increase the diversity of the students’ experience..

LEGAL ARGUMENT

Point I. PLAINTIFF IS ENTITLED TO PREVAIL ON THIS

MOTION IF SHE HAS PLED FACTS WHICH STATE
ANY CLAIM KNOWN TO THE LAW

In determining a motion to dismiss under C.P.L.R. § 3211 for failure to state a claim, the
motion must be denied if the complaint gives sufficient notice of the transactions or occurrences and
if the requisite elements of any claim known to the law can be discerned from the averments. J. P.
Morgan Chase v. Electric of New York, Inc., 69 A.D. 2d 802, 893 N.Y.S.2d 237 (2d Dept. 2010).
A motion to dismiss must be denied if from the four corners of the pleadings factual allegations are
discerned which taken together manifest an cause of action.. Sheila C. v. Povich, 11 A.D. 3d 120,
781 N.Y.S. 2d 342 (1st Dept. 2004).

In deciding the motion, the court must accept as true the factual allegations of the complaint
and accord the plaintiff all favorable inferences which may be drawn therefrom. If the plaintiff can
succeed upon any reasonable view of the allegations, the complaint may not be dismissed.
MacDonell v. PHH Mortgage Corp., 45 A.D. 3d 537, 846 N.Y.S. 2d 223 (2d Dept. 2007).

Here, Plaintiff has alleged a failure to reasonably accommodate her disabilities by an
institution that is subject to Title III of the Americans with Disabilities Act, the Rehabilitation Act, and
the New York City Human Rights Code. She has also alleged that she was selected for disparate
treatment because of her severe disability. While defendants argue that disability as a qualification,
even for undesirable treatment, is not discriminatory, it is certainly possible that Plaintiff will prove
that to qualify to be assessed, diagnosed, and hypothetically treated, a person would not need to
be disabled within the meaning of the discrimination laws., and that the defendants intentionally
selected Plaintiff because her disability was of the severity which qualified her for legal protection.

There is also a factual basis in the pleadings for a finding that the defendants did not afford
Plaintiff a reasonable modification of their program based upon her known disability, after she
requested it.

Defendants also claim that their discrimination on the basis or race was not illegal, because
they perceived it as benevolent. However, its purported benefit to the students of increasing their
exposure to persons of different backgrounds does not preclude a finding that their selection of a
person of American Indian descent was discriminatory. Defendants also invoke the “intracorporate
conspiracy” defense, arguing that since all the defendants were employed by Columbia University,
they could not conspire with one another. But, assuming that this defense has any application to
1985 conspiracies, it does not prevent a finding that the individual defendants were not solely
motivated by the intent to carry out the corporation’s business. Individuals acting out of a motive
separate from advancing the corporation’s interest

Defendants’ assertion that they did not provide social work services to Plaintiff may be shown
to be baseless in light of the extensive contact they had with her, in a purported effort to make the
program they were supervising their students in conducting, more useful,
or at least less harmful to her. That the program was a social work professional function is
indisputable.

Because Plaiintiff has pleaded facts which, viewed under the liberal standards applied to a
motion to dismiss, would allow her to prove her claims, the Defemdamts’ motion must be denied.
Point II PLAINTIFF STATES CLAIMS FOR VIOLATIONS OF DISABILITY

RIGHTS LAWS

A.. Plaintiff Was Denied Her Right to Reasonable Modification of a Program
Defendants argue that Plaintiff’s claims based on disability rights law must be dismissed

because she was not qualified despite her disability but because of it. The fallacy of this argument
will be addressed in subpoint II B, below.

But Defendants have not even addressed a separate theory of liability under disability rights
statutes, the requirement of reasonable modification of services to meet the needs of persons with
disabiilties. In Good Shepherd Manor Foundation v. City of Momence, 323 F.3d 537, 562 (7th Cir.
2003), the Court of Appeals rebuffed a similarly myopic understanding of the obligations of a
defendant to reasonably modify its services to accommodate persons with disabilities:

The error in the city’s logic is all the more clear when we consider that reasonable
accommodation is a theory of liability separate from intentional discrimination. If the
motivation of the city in cutting off the water to Good Shepherd was based on their
handicap, then Good Shepherd would be entitled to judgment under the theory of
intentional discrimination...’Failure to reasonably accommodate is an alternative
theory of liability, The theory would be entirely redundant if it required proof that the
defendants’ actions were motivated by animus towards the handicapped. Indeed for
the reasonable accommodation theory to be meaningful, it must be a thoery of liability
for cases where we assume there is a valid reason behind the actions of the city, but
the city is liable nonetheless if it failed to reasonably accommodate the handicap of
the plaintiff.

While Good Shepherd Manor Foundation was decided under ADA Title II, the ADA and the
Rehabilitation Act, 29 U.S.C. 791 et seq., both prohibit discrimination, and each requires reasonable
accommodation of persons with disabilities. Catero Cerezo v. United States Department of Justice,
358 F. 3d 6 (1st Cir. 2004). Cases interpreting either statute are applicable and interchangable.
Allison v. Department of Corrections, 94 F. 3d 494, 497 (8th Cir. 1996). Columbia University, as a
private college and graduate school is within the ambit of ADA Title III, 42 U.S.C. § 12181 (j). As
a recipient of federal funds, it is also accountable under the Rehabilitation Act of 1973, 29 U.S. C.
§ 794.

There is a difference between the two statutes, however, in the remedy available. While Title
III of the ADA permits only injunctive relief and attorneys fees, the Rehabilitation Act permits an

award of compensatory damages. Barnes v. Gorman, 536 U.S. 181 (2002).

While only the University itself is a liable entity for disability discrimination under federal law,
the local equivalent, New York City Human Rights Code, New York City Administrative Code § 8107(
6), allows a cause of action for aiding and abetting discrimination, and 8-107 (4) prohibits
discrimination by an employee of a public accommodation..

Plaintiff is a person with disabilities, under the ADA and the Rehabilitation Act, in that her
depression and post traumatic stress disorder interfered with her ability to perform major life
functions1, including working recognized as a condition which may be disabling under the ADA.
Defendants, having argued that Plaintiff’s disabling condition was what qualified her to be a subject
of their examination can hardly deny that they were aware of her disability, on the facts as pleaded.

nor can the fact that the treatment plaintiff received at the hands of defendants not desired
by her take the facts outside the protection of disability discrimination law. The United States
Supreme Court ruled unanimously in Pennsylvania Department of Corrections v. Yeskey , 524 U.S.
206 (1998), held that prison services were within the “benefits “ or “services” covered by the
Americans with Disabilities Act, because the text of the ADA provided no basis for distinguishing
these from other programs or services. And see Gorman v. Bartch, 152 F. 2d 907, 912 (2d Cir.
1998): “The fact that Gorman had not ‘volunteered to be arrested does not mean he was not eligible
to receive transportation services.”

Regardless of whether their initial attempt to schedule a meeting with her by Skype was
practical, when Plaintiff’s advocate met with the members of the Capstone committee, and when
Plaintiff herself had a face to face meeting with Dean Takamura and other administrators, the net

1The New York City Human Rights Code, Administrative Code § 8-102 (16)
utilizes more inclusive definitions of disability than the ADA and Rehabilitation Act.

effect was no modification of the program as planned.

“[A] request for a reasonable accommodation may trigger a responsibility... to enter into an
interactive process...to determine an appropriate accommodation.” Reed v. LePage Bakeries, 244

F. 3d 254, 262 n. 11 (1st Cir. 2001). Defendants made clear through their conduct and their explicit
refusal that they were not prepared to accommodate Plaintiff’s disability, even to the extent of
allowing her to present a true picture of herself to contrast with the false one drawn in The Lonely
Soldier.
B. Plaintiff States a Claim Based Upon Discriminatory Treatment
Defendants make two arguments concerning the Plaintiff’s claim for discriminatory treatment
as a person with disabilities. First, they assert that there is no viable claim for injunctive relief
because it would constitute “prior restraint” (or alternatively, because there is nothing to restrain).
Secondly, they argue that Plaintiff was not discriminated against when she was selected to be the
involuntary subject of a study based on the severity of her disability, because only persons with a
disability would qualify for the study.

The second argument is at best premature. There has been no showing of the precise
selection criteria of the Capstone Committee. The assumption that only persons with conditions
which limit them with respect to one or more major life functions as compared to a person without
disabilities is no more than an assumption of Defendants’ counsel. According Plaintiff all favorable
inferences which may be drawn from the complaint, there is a reasonable view of the allegations
which permits an inference of disability discrimination, and the claim of disability discrimination may
not be dismissed. MacDonell v. PHH Mortgage Corp., supra, 45 A.D. 3d 537, 846 N.Y.S. 2d 223.

Defendants arguments concerning the efficacy of injunctive relief, and its availability, fair no
better. The injunctive relief sought in the Amended Complaint seeks the prohibition of “further

disseminating, archiving, or publicizing, in whole or in part the experiment performed or the resulting
studies.” Plaintiff can hardly be expected, without discovery, to make allegations about precisely
how the Defendants intend to distribute the study of her and its results, or provide access to it. That
should not deter this Court from permitting Plaintiff to prove her entitlement to this result.

Defendants also argue that an injunction would constitute an unconstitutional “prior restraint.”
But there is nothing “prior” about the injunctive relief sought by Plaintiff. If every further act of
disseminating the same material despite legal prohibition were prior restraint, the law could never
catch up with the harm to prevent it. The instances in which the opposite occurs are legion, from
injunctions on further publication of copyrighted material,
to violation of the right not to have one’s image used for commercial purposes under New York Civil
Rights Law § 51.

Closer to home, it would be unthinkable if a plaintiff who had proven an employer’s fomenting
of a discriminatorily hostile work environment were prevented from obtaining an injunction against
the continued harassment because the hostile atmosphere was being created by the oral or written
communication of ideas which targeted a person based on membership in a protected group.

Point III
PLAINTIFF HAS PLEADED A CLAIM FOR RACIALLY MOTIVATED
CONSPIRACY

A. Defendants’ Attempt to Evade Liability Because Their Racially Motivated
Choice to Make Plaintiff the Subject of Involuntary Study Promoted “Diversity”
in Their Students’ Experience Must Fail
Defendants’ conflate the desire to provide students with a “diverse” exposure to a variety of
clients with its intended effect on Plaintiff, an American Indian. The cases cited by Defendants
which find a desire for diversity not to show discriminatory animus are inapposite. Ricci v. Stefano,
530 F. 3d 88 (2d Cir. 2008) is a suit brought by plaintiffs who claim that the favoring of individuals
based on their membership in a racial group that had previously been discriminated against
constituted an animus against those outside the group. Crews v. Trustees of Columbia University,
452 F. Supp. 2d 504 (S.D.N.Y. 2006) merely holds that an express desire for diversity does not
establish racially motivated hostility. It does not suggest that the use of that term as a talismanic
charm could insulate conduct otherwise constituting the infliction of racially motivated harm.
The supposed benevolence of the defendants, in seeking to promote “diversity,” was
intended as a benefit to their students, not to Eli PaintedCrow. The defendants selected her to be
the subject of their students’ scrutiny and psychological dissection without her consent. There was
nothing benevolent about that choice, insofar as it affected Plaintiff.
The rationale that there was a benevolent purpose comes far too late in the history of
relations with the American Indian peoples to be given any weight. More than four centuries of the
mistreatment of the United States’s indigenous peoples, frequently accompanied by the profession
of good intentions, requires the rejection of any notion that the measure of a racial animus must be
whether the perpetrators acknowledge that it is harmful. It should be sufficient to allege and prove
that it was carried out over the objection of the person who was subject to it based upon her race.

It must be recalled that one of the most monstrous instances of human medical
experimentation in the United States, the Tuskegee syphilis experiment2, was carried out with the
“benevolent” intention of determining whether the effects of the veneral disease on African-American
subjects differed from its effect on whites. It would be difficult to distinguish between this motive and
a desire for “diversity” in determining whether a racial animus was a motivator of objectively
malevolent conduct.

B. The Intracorporate Conspiracy Doctrine Does not Apply to Plaintiff’s Claims Under
42 U.S.C. § 1985
A number of courts have held that he intracorporate immunity doctrine does not shield all
illegal conduct from §1985 claims. McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th
Cir. 2000); Novotny v. Great American Federal Savings & Loan Ass'n , 584 F.2d 1235 (3d Cir. 1978)
(en banc), vac. oth. grds., 442 U.S. 366 (1979) Stathos v. Bowden, 728 F.2d 15 (1st Cir.1984);
Dombrowski v. Dowling, 459 F.2d 190 at 196 (7th Cir.1972); Garza v. City of Omaha ,814 F. 2d
553 (8th Cir. 1987).
The Eleventh Court of Appeals, in McAndrew held that the logic of the intracorporate
conspiracy doctrine in anti-trust cases does not warrant its extension to civil rights cases. Allowing
a corporate form to prevent liabilty was inconsistent with the original purpose of the statute because
42 USC §1985 derived from the Civil Rights Act of 1871 in response to Ku Klux Klan terrorism. The
conspiracies sought to be prevented were those “having the object or effect of frustrating the
constitutional operations of government through assaults on the person, property, and liberties of
individuals.” McAndrew v. Lockheed Martin Corp., supra, 206 F.3d 1031 at 1036.. “Agents of the

2Described in Bad Blood, The Tuskegee Syphilis Experiment, James H. Jones,
(Free Press, 2003)

Klan certainly could not carry out acts of violence with impunity simply because they were acting
under orders from the Grand Dragon.” Dombrowski v. Dowling, 459 F.2d 190 at 196 (7th Cir.1972).
Similarly, in Novotny, the court held that in the presence of discriminatory practices- there was“no
function to be served by immunizing such action once a business is incorporated.” Novotny v. Great
American Federal Savings & Loan Ass'n, 584 F.2d 1235 at 1257.

Moreover, §1985 is broad in its language, and relates to conspiracies by “any person.”
Moriani v. Hunter, 462 F.Supp. 353, 356 (S.D.N.Y.1978)

The defense that a single corporation and its employees cannot conspire under §1985 may
be rejected where continuing acts of discrimination are alleged. Yeadon v. New York City Transit
Auth., 719 F.Supp. 204, 212 (S.D.N.Y.1989). "Intentionally and deliberately embarked upon and
pursued a course of conduct" in various specified respects. Novotny v. Great American Federal
Savings & Loan Ass’n, supra, 584 F.2d 1235 at 1248. And see, Stathos v. Bowden, supra., 728
F.2d 15, 21 (overt acts in furtherance of § 1985 conspiracy consisted of “many acts and deeds” by
individual conspirators.

As well, there is a distinction between University professors carrying out a deliberative
function, such as a tenure reocommendation, in which the corporate purpose is carried out through
the individual employees, and the autonomous acts of professors which the school insists are
beyond its control. The logic of the intracorporate immunity from conspiracy charges flows from the
carrying out of a corporate purpose. Here, the Dean of the Social Work School asserted that the
professors acted on their own, that the school could not direct any changes to the program that they
planned.

In particular, the existence of a conspirator who has a motive beyond the corporate purpose
allows the claim to be recognized. Garza v. City of Omaha, supra. The inclusion of a person who

had an independent stakes in the conspiracy’s objective defeats the intracorporate conspiracy
defense. . Dombrowski v. Dowling, 459 F.2d 190 at 196 (7th Cir.1972) Here, Helen Benedict’s
motive is likely to be shown to have more to do with promoting her book than any interest she
shared with the other employees of Columbia University. At the same time, Bendict’‘s featuring of
PaintedCrow’s photo on the front of her book, in uniform, with her American Indian name
prominently visible, supports an inference of a share determination to select PaintedCrow as a
subject because of her American Indian identity, and to exploit that identity in furtherance of her
goals.

C.
Plaintiff Was Subjected to a Conspiracy to Violate Her Civil Rights
As discussed above, the Defendants conspired to violate Plaintiff’s rights under the
Rehabilitation Act of 1973 and the Americans with Disabilities Act.
Both the Rehabiiltation Act and Title VI of the Civil Rights Act, 42 US.C. § 2000d, enforce the
Fourteenth Amendment by insuring that federally funded programs do not discriminate on the basis
of disabillty or race, respectively. Defendants’ acts, compromising both these rights, are thus
sufficient to establish that the conspiracy was aimed at violating Plaintiff’s rights to the equal
protection of the law, and to the rights and privileges of citizenship.

Defendants argue that the Plaintiff’s right not to be the subject of human experimentation,
a right which has become part of customary international law, binding on the United States as the
law of the land, has not been compromised. Their argument is based on a section of the Code of
Federal Regulations promulgated by the United States Department of Health and Human Services
which governs the obligation of an institution to convene an Independent Review Board.

But the fact that a federal regulation does not include particular conduct does not take it
outside the broad sweep of the Nuremberg Convention of 1947, which prohibits all unconsented to

human experimentation.

In addition, the United Nations General Assembly adopted a Declaration of the Rights of
Indigenous Peoples3, which recognizes at Article 2 that “Indigenous people are free and equal to
all other peoples, and have the right to be free of any kind of discrimination, in the exercise of their
rights, in particular that based on their indigenous origin or identity”. The Declaration goes on to
state at Article 7, Section 1, that “Indigenous individuals have the right to life, physical and mental
integrity, liberty and security of persons.

That resolution, having been passed by the United Nations General Assembly by an
overwhelming majority of 143 to 4, is evidence of a universally accepted international standard, and
hence of a principle of customary international law which is the law of the land, a part of federal law.

These universally recognized rights under customary international law, like treaties of the
United States, are “the supreme law of the land”. U.S.Const., Art. VI.. As jus cogens they are
peremptory norms of international law which have received near-universal acceptance, they are
binding on the United States as well as other nations. The treaties of the United States and the
customary international “law of nations” are treated as being on equal footing by 28 U.S.C. § 1350,
passed contemporaneously with the adoption of the United States Constitution. See Sosa v.
Alvarez-Machain, 542 U.S. 694 (2004) (courts should enforce principles of the law of nations which
are “ a norm of international character accepted by the civilizes world and defined with specificity.”
And see, In re Estate of Marcos Human Rights Litigation, 25 F.3d 1467, 1475 (CA9 1994)
(“[a]ctionable violations of international law must be of a norm that is specific, universal, and

3Available at
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N06/512/07/PDF/N0651207.pdf?OpenE
lement

obligatory”). The principle of incorporation of the law of nations as part of the law of the United
States has been recognized since the era of the adoption of the Consititution. Sosa v. Alvarez-
Machain, supra..:” [T]the law of nations ...is a part of the law of the land.” Alvarez-Machain, id,,
quoting The Nereida, 9 Cranch 388, 423 (1815), (Marshall, C.J..). "When the United States declared
their independence, they were bound to receive the law of nations, in its modern state of purity and
refinement." Ware v. Hylton, 3 Dall. 199, 281 (1796) (Wilson, J.). quoted in Alvarez-Machain, supra.

Defendants’ assertion that their conspiracy did not seek to compromise federally protected
rights is therefore without merit.

Point V PLAINTIFF IS ENTITLED TO THE PROTECTION OF THE NEW
YORK CITY HUMAN RIGHTS CODE
Defendants assert that Plaintiff had no rights to be protected, because she was not a student
at Columbia University, and no service was being offered to her. Four-hundred social work students
were given the assignment to do am assessment of Plaintiff’s mental condition. They were directed
to do a psychoanalytic study of Plaintiff. Finally, they were to propose treatment plans.
At one point, Plaintiff had been invited to participate in the presentation of the project . Yet
Defendants claim that she was not being offered a service. It would be more accurate to state that,
for purposes of the New York City Human Rights Law, she was denied the opportunity to benefit
from the service because of the manner in which the assignment was carried out, including the
reneging on the promise to bring her to New York to participate in the presentation. Defendants
cannot transform the discriminatory prevention of Plaintiff recieving any benefit from the pragrams
and serrvices of which she was made the subject into an exemption from the reach of the Human
Rights Code.
As well, the Defendants’ argument fails to consider the explicit direction of the City Council
in enacting the Local Civil Rights Restoration Act of 2005, that the provisions of federal and state
law shall be considered a floor, not a ceiling, for the protections of the Code. See New York City
Human Rights Law, Admin. Code § 8-130. Williams v. New York City Transit Authority, _A.D.3d_,
872 N.Y.S. 2d 27 (1st Dept. 2009).

Point V PLAINTIFF STATES A CLAIM FOR SOCIAL WORK MALPRACTICE

Education Law § 7701, defining the practice of Licensed Master of Social Work and of
Licensed Clinical Social Work enumerate precisely the functions of social work assessment,
diagnosis, and development of a treatment plan which were the assignment given to the social work
graduate students working under their supervision by the Capstone Project professors at Columbia
University School of Social Work. § 7702 (b) and (c) identify the provision of supervision and serving
as a faculty member at an educational institution as “social work functions” which do not require a
license.

The New York State Board of Regents Rules of Professional Conduct, Part 29,
“Unprofessional Conduct”, includes a provision prohibiting a professional from “performing
professional services which have not been duly authorized by the patient or client or his or her legal
representative.” § 29.02

Defendants argue that the professional misconduct standards do not apply because they did
not have a social work relationship with Eli PaintedCrow. However, the complaint, read in the light
most favorable to Plaintiff, sets out communications between Eli PaintedCrow and members of the
Capstone faculty, as well as the Social Work deans, in which the purported interest of the
defendants was to find a way to make the program more useful, or at least less harmful, to
PaintedCrow. Whether this constituted the provision of “any social work services at all”(Defendants’
Memorandum of Law at p.16) thus becomes a fact question, which at least at the pleading stage,
should not be resolved against Plainitff

Given the extensive probing of Plainttiff’s personal history, if through the distorted lens of
Helen Benefict’s book, and the processing of that history with the standard social work functions of
assessment, diagnosis, and development of a treatment plan, together with an invitation to Plaintiff

to attend the proceedings where the conclusions developed by the student teams would be aired,
it is certainly possible that Plaintiff will be able to estalblish sufficient proferring of social work
services to establish a relationship. It is disingenous for the defendants to assert that, at the end
of a year-long project required for graduation, the student teams were being guided in providing
nothing more than book reports.

As to the claim that no breach of professional ethics was involved, in light of the prohibition
by the Board of Regents of “performing professional services which have not been duly authorized,”
the Defendants can only be understood to read the prohibition as containing a loophole when, as
here, all the services are unauthorized.

CONCLUSION

Taking the allegations as true, and drawing all reasonable inferences in favor of Plaitiff, this
court mut find that facts may exist which will suppoert each of her causes of action. Defendants’
motion should be dismissed.

Respectfully submitted,

Aaron David Frishberg
Attorney for Plaintiff
116 W. 111th Street
New York, NY 10026
212 740 4544
lawyerADF@aol.com

SUPREME COURT OF T HE STATE OF NEW YORK
COUNTY OF NEW YORK

Index No.
In the Matter of the Special Proceeding Brought by
ELI PAINTEDCROW,

Petitioner

VERIFIED
-against-PETITION

COLUMBIA SCHOOL OF SOCIAL WORK,
SOCIAL WORK DEAN JEANETTE TAKAMURA,
SCHOOL OF SOCIAL WORK,ASSOCIATE DEAN OF
ACADEMIC AFFAIRS ALLEN ZWEBEN, SENIOR

ASSISTANT DEAN FOR ACADEMIC AFFAIRS
MARIANNE YOSHIOKA, PROFS. MARION RIEDEL,
MARGARET O’NEILL, FRED SSEWAMALA,,
WEN JUI HAN, and COLUMBIA SCHOOL
OF Journalism PROF. HELEN BENEDICT
in their official capacities and individually,

Respondents

State of New York )
County of Ne York)

ELI PAINTEDCROW, being first sworn, deposes and says as folllows:

1. . I am the Petitioner herein, and as such have personal knowledge of the within facts.
2. In or about the end of November, 2010, I was contacted by Kalima DeSuze, a professor
in the Columbia University School of Social Work, who informed me that there was a

discussion among the School of Social Work Capstone Project, wich upon information

and belief, included Profs. FRED SSEWAMALA,, PROFS. MARION RIEDEL,

MARGARET O’NEILL, and WEN JUI HAN, who were considering using the “me” created

based on interviews which had been taken by PROF. HELEN BENEDICT, a Journalism

School professor at Columbia University, with me and which appeared in distorted form
in her book, “The Lonely Soldier” which purported to portray me and other women who
had served in the U.S. military in Iraq and Afghanistan and who she portrayed as
suffering from military sexual trauma.

3. I heard nothing more about this until April 19, 2011.
4. I had confronted HELEN BENEDICT in or about 2009, making her aware t hat I had not
been able to read all of the book because of the way it distorted its portrayal of me and
other women veterans, making us appear to be passive victims, and exaggerating facts
to suit Prof. Benedict’s agenda.
5. On or about April 16, 2011, I learned from a friend that Columbia University School of
Social Work had gone forward to assign its graduate students to work in groups, as part
of their graduation requirement, to produce psychoanalytic assessment, diagnosis, and
treatment plan of the person HELEN BENEDICT represented me to be in her book, .
6. On April 19, 2011, I received an e-mail from PROF. MARION RIEDEL, inviting me to be
part of a Capstone panel to be held on May 6, 2011 at Columbia University School of
Social Work.
7.
After subsequent e-mails from PROF. MARION RIEDEL, a social work student
contacted me for permission to use my photograph in a poster presentation which was
to be part of the event planned for May 6, 2011.
8.
This request catalyzed my full awareness of the degree to which the Capstone Project
was having students focus on me in their projects.
9. I initiated by e-mail contact with PROF. MARION RIEDEL, and gave her times to phone
me in California, where I live. We spoke by phone on or about April 22, 2011, at which

time I asked to be flown to New York immediately, so that I could discuss the project,
and negotiate a modification of it with the Capstone Committee.

10.
PROF. RIEDEL declined my request, claiming that Columbia University could not
afford to bring me to New York at that early a date.
11.
I subsequently learned from social work students at the graduate program that the
students had been directed on April 25, 2011 by SOCIAL WORK DEAN JEANETTE
TAKAMURA not to communicate directly with me.
12.
On or about April 27, 2011, DEAN TAKAMURA asked that we confer by Skype. I
declined, stating that I felt we needed to meet in person.
13.
I flew to New York at my own expense on April 28, 2011. The next day, a friend,
acting on my behalf, contacted DEAN TAKAMURA ‘s office and requested that she
schedule a meeting with me. The response from Dean Takamura’s office was that
she was too busy.
14.
On May 3, 2011, Dean Takamura’s office agreed to meet with me on May 4, 2011.
15.
At that meeting, Dean Takamura, while professing sympathy with the pain that I felt
at being made the subject of the social work students’ study without my consent,
based on a distorted picture of me, claimed to have no power to alter the Keystone
faculty’s decisions, because of the principle of academic freedom.
16.
However, none of the faculty whom the Dean claimed were the sole decision makers
had been invited to the meeting.
17.
It was therefore clear to me that the School of Social Work was determined not to
accommodate my post-traumatic stress disorder and depression.
18.
I was informed by one of the Social Work students I met with in New York that

ASSISTANT DEAN MARIANNE YOSHIOKA had told her that the selection of me,
a Native American Indian, was an intentional decision as part of the Capstone
Project’s effort to increase the diversity of the persons whom students dealt with.

Eli Paintedcrow
sworn to before me this
day of May, 2011
.

The Petition for Justice