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Albert v. Carovano
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BRADEN L. ALBERT, FRANCIS J. CALLARD, JULIE L. JONES, GUR MELAMEDE, MOLLY
MYSLIWIEC, DEMETRI ORLANDO, MICHELLE PANINOS, CATHLEEN PERRY, AMY ROZGONYI,
GREGORY SHIN, MICHAEL TILMAN, and JOHNETTE TRAILL, Plaintiffs-Appellants, v. J.
MARTIN CAROVANO, President of Hamilton College; JANE L. JERVIS, Dean of Students
at Hamilton College; and HAMILTON COLLEGE, Defendants-Appellees
No. 87-7111
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
851 F.2d 561; 1988 U.S. App. LEXIS 9607
January 28, 1988, Argued
June 28, 1988, Decided
DISPOSITION: Affirmed in part and remanded in part.
COUNSEL: [**1] Michael Krinsky, New York, New York (Terry Gross, Nicholas E.
Poser, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York, New
York, of Counsel), for Plaintiffs-Appellants.
Edward R. Conan, Syracuse, New York (John A. Beach, Jonathan B. Fellows, Bond,
Schoeneck & King, Syracuse, New York, of Counsel), for Defendants-Appellees.
Eugene D. Gulland, Elizabeth H. Gorman, Covington & Burling, Washington,
District of Columbia, Sheldon Elliot Steinbach, General Counsel, American
Council on Education, Washington, District of Columbia, for Amicus Curiae
American Council on Education.
David M. Lascell, Marion Blankopf, Nixon, Hargrave, Devans & Doyle, Rochester,
New York, Sandra McMullan, National Institute of Independent Colleges and
Universities, Washington, District of Columbia, Elizabeth Van Nest, Commission
on Independent Colleges and Universities, Albany, New York, for Amici Curiae
National Institute of Independent Colleges and Universities and Commission on
Independent Colleges and Universities.
Robert S. Smith, Stuart M. Cobert, Paul, Weiss, Rifkind, Wharton & Garrison, New
York, New York, John Mason Harding, General Counsel, Columbia University, New
York, New York, Walter J. Relihan, Jr., General Counsel, Cornell University,
[**2] Ithaca, New York; S. Andrew Schaffer, Vice President and General Counsel,
New York University, New York, New York, Dorothy K. Robinson, General Counsel,
Yale University, New Haven, Connecticut, for Amici Curiae Columbia University,
Cornell University, New York University and Yale University.
JUDGES: Winter, Circuit Judge, with whom Meskill, Newman, Kearse, Pratt, Miner,
Altimari and Mahoney, Circuit Judges, join. Oakes, Circuit Judge, dissenting and
concurring.
OPINION: [*562] ON REHEARING IN BANC
This appeal presents the question whether the disciplinary actions of a private
college, by virtue of a state statute requiring colleges to adopt disciplinary
rules and to file them with the state, constitute state action under the
Constitution and 42 U.S.C. § 1983 (1982). The appeal also requires us to address
and to clarify the pleading requirements for claims brought under 42 U.S.C. §
1981 (1982). Appellants are students who were suspended by Hamilton College on
November 14, 1986 when they refused to end a three-day occupation of Hamilton's
main administration building. On November 26, 1986, seeking injunctive [*563]
relief under Section 1983, the suspended students brought this action in the
Northern [**3] District of New York. Named as defendants were the College; its
President, J. Martin Carovano; and its Dean of Students, Jane L. Jervis. The
students' Section 1983 claim asserted that the College was a state actor because
it had adopted disciplinary rules pursuant to N.Y. Educ. Law § 6450 (McKinney
1985), the so-called Henderson Act, and had denied them due process when it
suspended them pursuant to those rules. That Act directs all colleges and
universities in the State of New York to adopt and to file with the state "rules
and regulations for the maintenance of public order" that include as possible
sanctions "suspension, expulsion or other appropriate disciplinary action." For
their Section 1981 claim, appellants alleged that "the defendants are
selectively enforcing the College rules on student conduct against plaintiffs,"
among other reasons, "because of their criticisms of . . . prejudice[] at
Hamilton, . . . and because they are black, Latin or gay; supportive of the
rights of blacks, Latins and gays and without old family ties to Hamilton."
Complaint para. 35.
Appellants sought a preliminary injunction against their suspensions, and
appellees moved to dismiss the complaint. [**4] After some hurried discovery,
the district court on December 23 held an evidentiary hearing on the issue of
state action. At the end of that hearing, Judge Cholakis, treating appellants'
Section 1981 claim as arising under Section 1983, denied appellants' request for
a preliminary injunction and dismissed their complaint on the ground that state
action was lacking. The students appealed, and a divided panel of this court
reversed. Albert v. Carovano, 824 F.2d 1333, modified on rehearing, 839 F.2d 871
(2d Cir. 1987). We ordered reconsideration in banc upon appellees' suggestion,
and we now vacate the panel opinion. We affirm the dismissal of the Section 1983
claim, but remand the Section 1981 claim to allow appellants an opportunity to
replead it.
BACKGROUND
Chartered in 1812, Hamilton College is a privately-endowed institution of higher
learning located in Clinton, New York. Until 1969, it prescribed a concise code
of conduct for its students. The College stated only that "Conduct becoming a
gentleman is expected of Hamilton men at all times," and that "It is assumed
that undergraduates will understand what constitutes gentlemanly conduct without
expressed rules to cover every [**5] occasion." The College's Judiciary Board
limited suspensions to "extremely serious misconduct."
The College altered its code of conduct in 1969, however, after New York enacted
the Henderson Act. That Act was a response to campus unrest in the 1960's, and
as noted, requires colleges both to adopt rules concerning the maintenance of
public order on campus and to file those rules with the state. n1 Colleges that
fail to comply are not eligible to receive state aid.
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n1 Section 6450 provides, in pertinent part:
1. The trustees or other governing board of every college chartered by the
regents or incorporated by special act of the legislature shall adopt rules and
regulations for the maintenance of public order on college campuses and other
college property used for educational purposes and provide a program for the
enforcement thereof. . . . Such rules and regulations shall govern the conduct
of students, faculty and other staff as well as visitors and other licensees and
invitees on such campuses and property. The penalties for violations of such
rules and regulations shall be clearly set forth therein and shall include
provisions for the ejection of a violator from such campus and property, in the
case of a student or faculty violator his suspension, expulsion or other
appropriate disciplinary action . . . . Such penalties shall be in addition to
any penalty pursuant to the penal law or any other chapter to which a violator
or organization may be subject. Such rules and regulations shall be filed with
the regents and the commissioner of education not later than ninety days after
the effective date of this act. . . . All amendments to such rules and
regulations shall be filed with the regents and the commissioner of education
not later than ten days after their adoption.
2. If the trustees or other governing board of a college fails to file the rules
and regulations within the time required by this section such college shall not
be eligible to receive any state aid or assistance until such rules and
regulations are duly filed.
3. Nothing contained in this section is intended nor shall it be construed to
limit or restrict the freedom of speech nor [sic] peaceful assembly.
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[**6]
[*564] The language of the Henderson Act requires only that rules adopted and
filed pursuant to the Act provide "suspension, expulsion or other appropriate
disciplinary action" as penalties for violation of those rules. Beyond this the
Act is silent. Colleges are free to define breaches of public order however they
wish, and they need not resort to a particular penalty in any particular case.
Finally, nothing in the language of Section 6450 requires colleges to enforce
the regulations filed pursuant to that Section at all. As we have previously
observed, the terms of the Act leave "one wonder[ing] whether rules and
regulations consisting solely of the statement that any individual guilty of a
transgression against the public order of the campus shall be required to give
the Dean of the College a rose and a peppercorn on Midsummer's Day would satisfy
the literal command of the statute in all respects." Coleman v. Wagner College,
429 F.2d 1120, 1124 (2d Cir. 1970).
To comply with Section 6450, the Trustees of Hamilton College adopted and filed
a set of rules styled "Freedom of Expression/Maintenance of Public Order at
Hamilton College." Today these rules are incorporated in Hamilton's [**7] A
Guide to the Policies and Procedures of Hamilton College (1986). Included as
examples of "disruptions of public order" are disruptive noise, violence or
threats, the destruction of college property, and the disruptive "physical
possession of a building." The rules set forth the various tactics and
procedures (ranging from "constructive discussion" to court orders) that
Hamilton's President may invoke at his or her discretion in response to
disturbances. In addition, the rules state:
Penalties for violations of the provisions of this Section of "Student Conduct"
[referring to a section of the Guide] (which penalties shall be in addition to
any penalty provided for in the New York state penal law or any other New York
or federal law to which a violator may be subject) shall include the following:
* * *
b. For students the procedures shall be those set forth under "Student
Discipline," [a subsection of "Student Conduct"], and may result in disciplinary
action of the most severe kind, including suspension or expulsion;
* * *
Elsewhere in the Guide, the subsection entitled "Student Discipline" (which was
not filed with the state) explains in great detail the [**8] processes by which
Hamilton's students may be disciplined. Most of this detail is devoted to the
structure and conduct of the school's "Judiciary Board," which "has jurisdiction
over infractions by students of general standards of conduct." At the same time,
however, the Guide suggests that Hamilton's President may dispense with
procedures outlined in the Guide. It thus states, "The right of the President to
decide finally on any student disciplinary matter is not precluded by the
provisions outlined below."
According to the complaint and the affidavit of appellant Gur Melamede, the
dispute at issue originated in a series of incidents on the Hamilton campus
during the academic year 1985-86. Protests developed against apartheid and
against Hamilton College's investments in firms doing business in South Africa.
According to appellants, some black women students who participated in the
protests were the victims of racial insults, and one received several threats on
her life. These insults and threats were aggravated in the students' eyes by
Hamilton College's alleged failure to investigate the incidents, to establish an
African-American Studies program, and to divest itself of investments [**9] in
firms doing business in South Africa.
The College apparently hoped to reduce tensions by scheduling a series of public
discussions of prejudice. These efforts backfired. On November 7, 1986, the
College held an alumni symposium on the topic [*565] of discrimination. Of the
four symposium panelists, only one was female, and she was not herself a
graduate of Hamilton but rather the wife of an alumnus and the mother of
another. Some students considered this panel's composition as sexist. On Monday,
November 10, the College held a debate on the issue of divestment, at which a
faculty member who favored divestment likened apartheid to Nazism. President
Carovano described this comparison as outrageous because it trivialized the
Holocaust. Black students in attendance walked out en masse.
During the next two days, students formed a coalition among five organizations
-- the Black and Latin Student Union, the Women's Center, the Gay and Lesbian
Alliance, the Progressive Young Democrats, and Hamiltonians for Divestment -- in
order to protest what they saw as the College administration's failure
"meaningfully" to address "the perceived racism, sexism and other prejudice at
Hamilton." Complaint para. [**10] 10. Meanwhile, on Tuesday, November 11, a
handwritten leaflet was circulated on campus "to those who are truly black." The
leaflet said that "at the Divestment debate our race was truly insulted by . . .
President Carovano," and announced plans for an "all night 'for real' sit in."
This protest apparently never occurred. On the next day, however, a group of
approximately forty to sixty students from the student coalition marched on
Buttrick Hall, Hamilton's main administrative building. When the students
arrived there shortly after 4:00 p.m., they gathered in the lobby, held a moment
of silence, and then sang "We Shall Overcome." A few speeches were given. Dean
Jervis was told that the students wished to meet with President Carovano. She
responded that Carovano was away and warned the students that they would have to
leave Buttrick Hall by 4:30 p.m., the building's regular closing time. The
students, however, refused to obey. The 4:30 deadline passed, and the students
were warned again shortly before midnight. Throughout the night, students freely
came and went from the building, a minimum of perhaps ten to fifteen remaining
there at any given time. The students, equipped with blankets [**11] and
sleeping bags, chatted with security guards. An assistant dean brought in some
pizza.
On the next morning, Thursday, November 13, 1986, the occupation of Buttrick
Hall continued. The administrative staff that normally worked in Buttrick was
told to stay home. Dean Jervis went to Buttrick at 8:45 a.m. and told the
students that the building was off-limits and was closed to outsiders. Jervis
warned that if the students did not leave within fifteen minutes, the College
would seek a temporary restraining order against their continued presence at
Buttrick. In making this announcement, Jervis expressly noted that she was
following one of the possible alternatives listed in Hamilton's "Freedom of
Expression/Maintenance of Public Order" statement (filed with the state pursuant
to the Henderson Act). The students nevertheless persisted.
Hamilton thereupon went to the Supreme Court of New York, Oneida County, and
later in the morning obtained an order temporarily enjoining the students from
"congregating within the College's administrative building . . . in such manner
as to disrupt or interfere with normal functions conducted by [the College] in
such place or to block, hinder, impede or [**12] interfere with ingress to or
egress from" Buttrick Hall. The College served the order upon the students
occupying Buttrick and nailed it to a door of the building. The students, who
felt they were not "disrupting" or "interfering" with anyone or anything,
refused to budge. At 4:00 p.m., Jervis returned to remind the students yet again
that they were, in the view of the College, violating the restraining order. She
added that the College was sending letters of warning to those students present
who could be identified, and that copies of the warning letters would be sent to
the students' parents. The occupation of Buttrick continued.
At 11:00 a.m. on Friday, Dean Jervis returned once again. She read a terse
notice stating that each of the students in Buttrick was violating the
restraining order, that Hamilton would initiate contempt proceedings, and that
the students were [*566] trespassing and could be subject to criminal charges.
Finally, she warned that if they did not vacate Buttrick immediately, the
students would be suspended from the College. Jervis personally handed copies of
the notice to each of the students. She posted a copy as well. Two hours later,
she again returned to Buttrick, [**13] where she found the twelve appellants and
informed them that they were suspended. Appellants concede that "the defendants
advised the students assembled [in Buttrick] that any who did not leave would be
suspended." Complaint para. 15.
On the following Monday, November 17, President Carovano modified the
suspensions so that they would not take effect until December 20, 1986, the
final day of the fall semester, thus allowing appellants to complete the
semester. The Hamilton Trustees were to meet in early December, and the students
in question were invited to inform the trustees in writing of their "views on
what has happened." The students' written response to this invitation demanded
hearings before the Judiciary Board and stated that the chance to air their
views before the Trustees did not accord them due process. Carovano also invited
the students to present to him any "extraordinary circumstances" that might
justify lessening the penalty imposed in any particular case. The students
ignored this invitation.
Instead, on November 26 the students filed this suit in the Northern District of
New York. They asserted three causes of action. The first alleged that the
College had violated [**14] the due process clause of the fourteenth amendment,
and hence Section 1983, when it suspended the students. The second, a pendent
state-law claim, alleged that the College had violated its own disciplinary
procedures. See Tedeschi v. Wagner College, 49 N.Y.2d 652, 427 N.Y.S.2d 760, 404
N.E.2d 1302 (1980). The third, which did not mention Section 1981 but which
appellants now assert states a Section 1981 claim, alleged that the College had
selectively enforced its disciplinary code against appellants because they were,
among other things, "black, Latin or gay; supportive of the rights of blacks,
Latins and gays and without old family ties to Hamilton." Appellants sought a
preliminary injunction, and appellees moved to dismiss.
The district court promptly granted appellants' request for the expedited
discovery of all files maintained by the New York State Education Department
regarding the implementation of the Henderson Act. Appellants requested no
further discovery. ARgument on the parties' opposing motions was initially held
on December 19 before Judge Cholakis. After argument, however, Judge Cholakis on
his own motion ordered the parties to present evidence on the issue of state
[**15] action at a hearing that he scheduled for December 23.
At the evidentiary hearing, appellants introduced numerous exhibits, virtually
all of which came from the files of the State Education Department and concerned
the circumstances surrounding the passage of the Henderson Act. These documents
were largely intended to prove the state of mind of college administrators in
New York in 1969. In addition, appellants called as witnesses Professors Austin
Briggs and James Ring, members of the Hamilton faculty who testified about the
circumstances surrounding the College's drafting, adoption and filing of its
"Freedom of Expression/Maintenance of Public Order" statement in 1969. Briggs
testified on direct examination that Hamilton's administration had felt
compelled by the Henderson Act to adopt and to file the "Freedom of Expression"
statement. Ring identified minutes from faculty meetings held in 1968 and 1969.
Neither witness testified as to any involvement by state officials in the
drafting of the "Freedom of Expression" statement, and neither gave any
testimony about the decision to suspend appellants.
Appellants also called Robert D. Stone, Esq., who was, both at the time of the
hearing [**16] and in 1969, General Counsel to the State Education Department.
On direct examination, he testified about a meeting held in Albany in May 1969
between state officials and representatives of various private colleges and
universities located in New York. The purpose of this meeting [*567] was to
discuss and to explain the freshly-minted Henderson Act. Stone was also asked
about his understanding of Section 6450:
Q: At the time [1969] did you have a belief that the colleges were required by
the law to eject for instance those who were occupying buildings at some point,
or whether they could simply under the legislation let the occupation go on for
months?
A: It was my understanding of the statute that the penalties for infractions
must include ejection. It was not my impression then or now that the legislature
meant to instruct the institutions as to when that penalty should be imposed.
On cross-examination, Stone explained that the State Education Department's
review of filings under Section 6450 is entirely mechanical. Applying the
criteria listed in a memorandum written by Stone on May 8, 1969, a junior staff
member simply looks at submissions to see if they meet four requirements: (1)
[**17] that the filings have been "promulgated by the . . . governing body of
the institution"; (2) that they "relate to the maintenance of public order on
the premises of the institution"; (3) that they "govern the conduct . . . of
students, faculty, staff and all visitors"; and (4) that they provide for
"ejection," "suspension, expulsion or other appropriate disciplinary action."
Stone's May 8, 1969 memorandum also stated that "a range of penalties may be
specified, with provision for the manner in which the specific penalty within
the range will be determined in a specific case." Stone also testified as to the
Education Department's implementation of Section 6450:
Q: Is it fair to say, Mr. Stone, that in 1969 the Department viewed its task in
implementing Section 6450 as constituting a ministerial act of comparing the
submissions of the colleges with the four items listed in your memo of May 8th,
1969, and determining whether those criteria were contained in each of the
submittals?
A: That is a fair characterization of the way we saw our task.
Q: And after the acknowledgement letter was sent to a particular college
advising them that their proposed regulations had been accepted [**18] and
filed, did the Department undertake any further steps with that college
concerning implementation of 6450?
A: The chapter, as I recall it, required that any revisions likewise be filed,
and if they were, of course, they were reviewed in the same way as the initial
submissions, or against the same criteria.
I do not recall that the Department did any follow-up to see that that
requirement of the statute was met. I think that we did not.
Moments later, he testified:
Q: In fact, you did not draft the statement of rules and procedures that were
filed by any of the private colleges in this state, is that correct?
A: We did not.
Q: And you had no direct involvement, did you, sir, [in] Hamilton College's
decision to suspend [the] plaintiff[s] in this action?
A: None whatsoever, direct or indirect.
Q: Are you aware of anyone in your department who had direct involvement in
Hamilton's decision on this?
A: I [am] not.
Q: In your memorandum of May 8, 1969, you did not list as one of the criteria to
be contained in a college's submission, an insistence that a specific remedy be
employed in every specific instance of defined misconduct, did you?
A: We did [and] do not. [**19]
Q: And in fact, the enforcement of a college's own rules and regulations with
respect to the maintenance of public order in a particular situation was left to
the college's judgment, was it not?
A: It was.
* * *
Q: Is it your belief, Mr. Stone, that Section 6450 . . . dictated the suspension
or other disciplinary penalties on students in any specific situation?
A: In my opinion, it does not.
[*568] The only evidence offered by appellees (other than the cross-examination
of appellants' witnesses) was an affidavit of a prominent state judge who had
been a member of Hamilton's Board of Trustees in 1969. Judge Cholakis excluded
the affidavit, however.
In an oral ruling later in the afternoon, Judge Cholakis denied appellants'
motion for a preliminary injunction and dismissed the complaint. He stated that
appellants' third cause of action "does not plead a 1981 claim. At best, if
anything, it pleads a 1983 claim." Thus treating both federal claims as arising
under Section 1983, the district court concluded that "it does not appear that
there is any likelihood that state action . . . could or would be proven." The
district court accordingly held that the absence of state action required the
[**20] dismissal of the federal claims. He then dismissed the pendent state-law
claim.
DISCUSSION
1. The Section 1983 Claim
We first briefly consider procedural points concerning appellants' Section 1983
claim. As already noted, appellees filed a motion to dismiss this claim under
Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be
granted. The district court granted that motion, but did so only after
conducting a day-long hearing devoted to the question of whether Hamilton was a
state actor. Thus, although the district court purported to enter a dismissal on
the pleadings, "matters outside the pleadings" were unquestionably "presented to
and not excluded by the court," and so we must treat the dismissal as a grant of
summary judgment under Rule 56. Fed. R. Civ. P. 12(b); see, e.g., Russo v.
Trifari, Krussman & Fishel, Inc., 837 F.2d 40, 42 (2d Cir. 1988). Accordingly,
the question on the merits of the state action question becomes whether there
exists a genuine issue of material fact. n2
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n2 Appellants challenge the procedures underlying their suspension on two
grounds. The first is a state claim asserting that Hamilton failed to follow its
own disciplinary procedures. The second is a federal due process claim asserting
that the reasons given by Hamilton have varied -- violation of the restraining
order, remaining in Buttrick Hall after it had been declared "off-limits,"
failure to leave after being so ordered by Dean Jervis on Friday, or the
"overnight occupations" of Buttrick -- and appellants have thus not had adequate
notice of the charges against them. Whether these allegations suffice to
distinguish Farrell v. Joel, 437 F.2d 160 (2d Cir. 1971), given the complaint's
admission in paragraph 15 that "the defendants advised the students [in Buttrick]
that any who did not leave would be suspended" is not before us, in view of our
disposition of the state-action issue.
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[**21]
Appellants' evidentiary submission in support of their theory of state action is
simply beside the point. According to appellants, there is a factual dispute
over whether, in 1969, Hamilton College felt compelled by the State of New York
to promulgate a set of "rules and regulations" (the "Freedom of
Expression/Maintenance of Public Order") that it would not otherwise have
adopted. From this uncontested premise, appellants conclude that there is a
material issue of fact as to whether Hamilton, in suspending appellants in 1986,
acted both in accordance with a rule of conduct prescribed by the state, and
under the compulsion of the state. See, e.g., Lugar v. Edmondson Oil Co., 457
U.S. 922, 937-39, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982).
As we explain more fully below, however, appellants' theory of state action
suffers from a fatal flaw. That theory assumes that either Section 6450 or the
rules Hamilton filed pursuant to that statute constitute "a rule of conduct
imposed by the state." Id. at 937. Yet nothing in either the legislation or
those rules required that these appellants be suspended for occupying Buttrick
Hall. Moreover, it is undisputed that the state's role under the Henderson Act
has been merely [**22] to keep on file rules submitted by colleges and
universities. The state has never sought to compel schools to enforce these
rules and has never even inquired about such enforcement. In these
circumstances, our decisions and those of the Supreme Court preclude a finding
of state action.
With regard to whether Section 6450 or Hamilton's rules provide a rule of
conduct [*569] establishing state action, the governing precedents in this
circuit are two decisions involving Vietnam-War-era protests at private New York
colleges. The first, Powe v. Miles, 407 F.2d 73 (2d Cir. 1968), came before
passage of the Henderson Act and involved a Section 1983 claim brought by
students of Alfred University, some of whom were also students of the New York
State College of Ceramics at Alfred University. The students argued, in essence,
that Alfred was a state actor because Alfred performed a "public function,"
namely education; because it was subject to state regulation in many respects;
and because it operated the College of Ceramics on behalf of the state. Judge
Friendly's opinion for the court in Powe rejected these claims. The plaintiffs'
contentions, he said,
overlook[] the essential point -- that [**23] the state must be involved not
simply with some activity of the institution alleged to have inflicted injury
upon a plaintiff but with the activity that caused the injury. Putting the point
another way, the state action, not the private action, must be the subject of
complaint. When the state bans a subject from the curriculum of a private
school, as in Meyer v. Nebraska, 262 U.S. 390, 67 L. Ed. 1042, 43 S. Ct. 625
(1923), its responsibility needs no elucidation. State action would be similarly
present here with respect to all the students if New York had undertaken to set
policy for the control of demonstrations in all private universities or in
universities containing contract colleges. But the fact that New York has
exercised some regulatory powers over the standard of education offered by
Alfred University does not implicate it generally in Alfred's policies toward
demonstrations and discipline.
Id. at 81 (citations and footnote omitted). As to the plaintiffs who were
students at the New York State College of Ceramics, however, Powe held that the
actions of Alfred administrators were actions of the state, "for the seemingly
simple but entirely sufficient reason that the State has willed it that way."
[**24] Id. at 82.
The second decision, Coleman v. Wagner College, 429 F.2d 1120 (2d Cir. 1970), is
our only previous encounter with the Henderson Act. The majority opinion stated
that "the 'regulation' of college discipline embodied in section 6450 appears
almost devoid of meaningful content." Id. at 1124. More importantly, the opinion
stated that if Section 6450 were enforced in accordance with its terms, it could
not be a basis for finding state action in a private college's disciplinary
acts. Id. But we then went on to say: "We are, however, cognizant of the
possibility that the statute may have been intended, or may be applied, to mean
more than it purports to say." Id. The case was remanded for a hearing on
whether "section 6450 represents a meaningful state intrusion into the
disciplinary policies of private colleges and universities." Id. at 1125. We
directed that the remand focus largely on two issues. The "most significant"
issue was whether state officials regarded their statutory responsibilities as
being more than ministerial and believed that they had the power to impose
substantive requirements upon, or the right to interfere in the enforcement of,
[**25] university or college regulations. Id. The second issue involved the
"attitude of the college administrators" with respect to the Henderson Act. We
noted, however, that we would be "loath" to hold that the state action doctrine
is triggered because of a private individual's misunderstanding of the law. Id.
Nevertheless, we stated that "[a] reasonable and widespread belief among college
administrators . . . that section 6450 required them to adopt a particular
stance toward campus demonstrators would seem to justify a conclusion that the
state intended for them to pursue that course of action." Id. (emphasis added).
Judge Friendly concurred separately and took a more expansive view of state
action. He favored a "remand for consideration on the merits rather than for the
elaborate preliminary inquiry" ordered by the majority. Id. at 1126 (Friendly,
J., concurring). Taking note of both the deterrent and the symbolic effects of
Section 6450, Judge Friendly stated that "when a state has gone so far in
directing private action that citizens may reasonably believe this to have
[*570] been taken at the state's instance, state action may legitimately be
found even though [**26] the state left the private actors almost complete
freedom of choice." Id. at 1127 (Friendly, J., concurring).
Appellants argue that evidence that in 1969 Hamilton adopted the present code in
response to Section 6450 suffices under Coleman to defeat summary judgment. We
disagree. Because Coleman held that the language of Section 6450 does not compel
college administrators to take particular disciplinary actions, the court
directed inquiry on remand into the views of state officials on their role under
the Henderson Act and the views of private educational administrators as to
their obligations under the Act. The issue in a Coleman-type case today is
whether the particular sanction under challenge was imposed as a result of the
acts of state officials responsible for enforcement of the Henderson Act or as a
result of "a reasonable and widespread belief" by college or university
administrators that imposition of the sanction was required by Section 6450. See
id. at 1125.
The answer to this inquiry is undisputed. Since the passage of the Henderson
Act, no state official has ever regarded his or her responsibilities under the
Act as more than ministerial, has ever [**27] sought to affect disciplinary
measures taken by private college administrators, or has ever even inquired into
such a matter. The only arguable departure by state officials from a literal
reading of the Act is Stone's interpretation that a code must explicitly include
expulsion and suspension as possible but not mandatory sanctions. Nor is there
any evidence whatsoever that any private college administrators anywhere in the
State of New York believe, reasonably or not, that the Henderson Act requires
that particular sanctions be imposed for disruption, much less that such a
belief was held by Dean Jervis or President Carovano. Indeed, in light of the
clarification provided in the intervening years since Coleman, even Judge
Friendly's looser test of whether "citizens may reasonably believe [the
disciplinary action in 1986] to have been taken at the state's instance," id. at
1127 (Friendly, J., concurring), would not be satisfied. Appellants' submission
regarding Hamilton's adoption of a new code of conduct in 1969 is, therefore, of
no relevance and does not fulfill the test preferred by either the majority or
minority in Coleman.
Moreover, appellants' claims are barred [**28] by decisions of the Supreme
Court. In Blum v. Yaretsky, 457 U.S. 991, 73 L. Ed. 2d 534, 102 S. Ct. 2777
(1982), for example, a class of Medicaid patients challenged decisions of
private nursing homes to transfer and discharge patients without affording them
either notice or hearing. The patients claimed that the transfers and discharges
were attributable to the State of New York because state regulations required
the homes "to make all efforts possible to transfer patients to the appropriate
level of care or home as indicated by the patient's medical condition or needs."
Id. at 1007-08 (quoting N.Y. Comp. Codes R. & Reg. tit. 10, §§ 416.9(d)(1),
421.13(d)(1) (1980)). In particular, as the Court explained, the regulations
"encouraged for efficiency reasons" the "downward" transfer of patients to
"lower levels of care." Id. at 1008 n.19 (emphasis added). To achieve this goal,
New York required the nursing homes to complete detailed "patient care
assessment forms designed by the State" when making decisions to transfer or
discharge patients. Id. at 1008. These forms required the homes to provide
certain medically relevant information about patients. On the basis of this
information and state regulations, [**29] the homes would tabulate numerical
"scores" indicating proper levels of care. See id. at 1020-27 (Brennan, J.,
dissenting). The nursing homes were further required to file the completed
assessment forms with state officials, who were in turn required by federal
regulations to use the assessments to approve or disapprove Medicaid funding.
Id. at 1010.
Thus, the gantlet of state regulation in Yaretsky was expressly described by the
Court as encouraging nursing homes to reduce costs -- or, to borrow language
from Coleman, "to adopt a particular stance" [*571] toward cost containment, 429
F.2d at 1125 -- and to that end imposed detailed recordkeeping and reporting
requirements. Nevertheless, the Court held that the transfer decisions of the
nursing homes did not constitute state action, because those decisions
"ultimately turn[ed] on medical judgments made by private parties according to
professional standards that are not established by the State." Yaretsky, 457
U.S. at 1008 (footnote omitted). In particular, the Court relied on the fact
that the "regulations do not require the nursing homes to rely on the forms in
making discharge or transfer decisions," id., and otherwise [**30] "do not
dictate [those] decisions." Id. at 1010. The court also noted that "adjustments
in benefit levels in response to [those decisions do] not constitute approval or
enforcement" by the state. Id.
State involvement in the present case is far less than in Yaretsky. Whereas the
assessment forms in Yaretsky contained extremely detailed criteria relating to
levels of care, Section 6450 does not set forth criteria for disciplinary
decisionmaking. Whereas the nursing homes had to file assessment forms for each
patient, Hamilton is not required to report its disciplinary decisions to the
state. Finally, even if the state had specifically required (contrary to the
undisputed evidence) Hamilton to adopt the precise rules set forth in its
Section 6450 statement, the ultimate power to select a particular sanction in
individual cases would, as in Yaretsky, rest with the private party.
Accordingly, Hamilton's decision to suspend the appellants "ultimately turn[ed]
on . . . [a] judgment made by [a] private part[y] according to professional
standards that were not established by the state." Id. at 1008. It thus cannot
be state action.
2. The Section 1981 Claim
We [**31] come, then, to appellants' Section 1981 claim. It expressly invokes
"the Fourteenth Amendment's equal protection and due process clauses and the
College's own rules and regulations," and realleges by cross-reference the
state-action allegations. Nevertheless, appellants argued both in the district
court and on appeal that this claim states a claim for relief under 42 U.S.C. §
1981. n3
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Appellees claim that the complaint's citation of the fourteenth amendment
instead of Section 1981 should prove fatal to the claim. In particular, they
claim that "only at the eleventh hour, facing defeat on the state action issue
underlying their preliminary injunction request, did plaintiffs suddenly urge §
1981." Appellees' contentions are unpersuasive. The failure in a complaint to
cite a statute, or to cite the correct one, in no way affects the merits of a
claim. Factual allegations alone are what matters. See, e.g., Newman v. Silver,
713 F.2d 14, 15 n.1 (2d Cir. 1983).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Section 1981 provides:
All persons within the jurisdiction of the United States shall have the same
right in every State and Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full [**32] and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981. The statute has long been viewed as prohibiting certain forms
of discrimination based on race, see, e.g., Yick Wo v. Hopkins, 118 U.S. 356,
369, 374, 30 L. Ed. 220, 6 S. Ct. 1064 (1886), and its reference to rights
enjoyed by white citizens establishes the "racial character of the rights being
protected," McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 293, 49 L. Ed.
2d 493, 96 S. Ct. 2574 (1976) (quoting Georgia v. Rachel, 384 U.S. 780, 791, 16
L. Ed. 2d 925, 86 S. Ct. 1783 (1966)). In addition, the statute applies to acts
of private racial discrimination. Runyon v. McCrary, 427 U.S. 160, 168-75, 49 L.
Ed. 2d 415, 96 S. Ct. 2586 (1976). Essential to an action under Section 1981 are
allegations that the defendants' acts were purposefully discriminatory, General
Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391, 73 L. Ed. 2d 835,
102 S. Ct. 3141 (1982), and racially motivated. E.g., Zemsky v. City of New
York, 821 F.2d 148, 150 (2d Cir.), cert. [*572] denied, 484 U.S. 965, 108 S. Ct.
456, 98 L. Ed. 2d 396 (1987). Under certain circumstances, however, non-minority
plaintiffs may sue someone [**33] who has retaliated against them because they
did not engage in purposeful racial discrimination. Sullivan v. Little Hunting
Park, Inc., 396 U.S. 229, 237, 24 L. Ed. 2d 386, 90 S. Ct. 400 (1969); DeMatteis
v. Eastman Kodak Co., 511 F.2d 306, 312 (2d Cir.), modified on other grounds,
520 F.2d 409 (1975). Finally, in accordance with the understanding of the
statute's drafters, "race" for the purposes of Section 1981 comprehends
ethnicity. Saint Francis College v. Al-Khazraji, 481 U.S. 604, 107 S. Ct. 2022,
2026-28, 95 L. Ed. 2d 582 (1987).
The central allegation in appellants' Section 1981 claim is the following:
The defendants are selectively enforcing the College rules on student conduct
against plaintiffs because of their criticisms of racism, sexism and other
prejudices at Hamilton, and the Administration's indifference to and toleration
of such prejudice and because they are black, Latin or gay; supportive of the
rights of blacks, Latins and gays and without old family ties to Hamilton.
Complaint para. 35. Most of this paragraph is simply irrelevant to a claim under
Section 1981. Appellants understandably do not argue that Section 1981 provides
protection against discrimination on the basis of sexual orientation or family
[**34] background exclusive of race. Section 1981 was intended to combat racial
or ethnic discrimination, nothing more. See Zemsky, 821 F.2d at 150. Appellants
also no longer assert that the appellees may violate Section 1981 simply by
being "indifferen[t] to and tolera[nt] of . . . prejudice," except to the extent
that this phrase describes purposeful racial discrimination.
We are left, then, with the claim that Hamilton College "selectively enforc[ed]"
its rules against appellants "because they are black [or] Latin" and "supportive
of the rights of blacks [or] Latins." As to the allegation that the appellants
were disciplined because they were black or Latin, it describes purposeful
racial discrimination and therefore falls within the general scope of Section
1981. Nevertheless, the complaint as currently drafted does not state a claim
under Section 1981 for several reasons.
The naked allegation that appellees "selectively enforc[ed] the College rules .
. . against plaintiffs . . . because they are black [or] Latin" is too
conclusory to survive a motion to dismiss. See Martin v. New York State Dep't of
Mental Hygiene, 588 F.2d 371 (2d Cir. 1978). Moreover, no claim is made in the
[**35] complaint or elsewhere that all the appellants are black or Latin.
Indeed, it fails to identify the race or ethnicity of any of the appellants and
expressly states that some were disciplined for a variety of other reasons,
including sexual orientation and lack of family ties to Hamilton. In fact, these
allegations tend to contradict the race or ethnicity claim because they suggest
that the sanction of suspension was imposed on all those who remained in
Buttrick Hall without regard to their race or ethnicity. See Quarles v. General
Motors Corp., 758 F.2d 839, 849 (2d Cir. 1985) (per curiam).
The complaint also does not state a Section 1981 claim on the theory that the
white appellants were "punished for trying to vindicate the rights of minorities
protected by [the statute.]" Sullivan v. Little Hunting Park, 396 U.S. at 237;
see also DeMatteis v. Eastman Kodak, 511 F.2d at 312. In this regard, it alleges
only that appellants were disciplined "because they are . . . supportive of the
rights of blacks [and] Latins." The complaint is thus entirely conclusory as to
the nature of the Section 1981 rights that were being vindicated by by the white
appellants. The Secion 1981 rights being vindicated white plaintiffs must be
identified with some [**36] particularity in order to limit actions under that
statute to its purpose. Otherwise, non-minority plaintiffs could bring actions
where Section 1981 rights are not implicated. Under the caselaw, for example,
non-minority plaintiffs may bring an action under Section 1981 against one who
has retaliated against them because they did not engage in purposeful racial
discrimination [*573] in a contractual or marital context, see, e.g., Alizadeh
v. Safeway Stores, Inc., 802 F.2d 111, 114 (5th Cir. 1986) (allowing Section
1981 suit by white female alleging she was discharged because her husband was
Iranian), Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 890 (11th
Cir. 1986) (white male alleging he was not hired because his wife was black),
DeMatteis v. Eastman Kodak, 511 F.2d at 312 (white person alleging he was forced
into retirement because he had sold his house to black person), or because they
objected to the defendant's purposeful racial discrimination. Winston v. Lear-Siegler,
Inc., 558 F.2d 1266 (6th Cir. 1977) (white plaintiff stated a § 1981 claim where
he alleged he was discharged because of his protest against racially
discriminatory discharge of a black [**37] coworker).
There is no authority, however, to support the proposition that a non-minority
plaintiff may bring a Section 1981 action for retaliation by another as a
consequence of the plaintiff's support of political or other causes favored by
minorities. Support for members of minority groups protesting investment or
curricular policies, protesting a college official's statement that apartheid in
South Africa is not similar to the Holocaust, or protesting generalized
perceptions of racist attitudes, simply does not implicate Section 1981 rights.
Protection of such activity must be found in the first amendment and pursued in
a Section 1983 action after a showing of state action. Cf. Keating v. Carey, 706
F.2d 377, 384 (2d Cir. 1983) ("§ 1981, however generously construed, does not
prohibit discrimination on the basis of political affiliation").
Finally, even if these dispositive omissions are cured, inferences of
discrimination of the kind prohibited by Section 1981 cannot be drawn from the
allegations concerning the College's failure to discipline students in other
circumstances. The disciplining of appellants involved the uncontested facts of
an occupation of a building and an [**38] outright refusal to leave at the
request of the College's highest officials with full warning as to the penalties
that would ensue. See Complaint para. 15 ("the defendants advised the students
assembled [in Buttrick] that any who did not leave would be suspended"). The
allegations concerning Hamilton's failure to discipline students in other
circumstances state that Hamilton:
(a) failed to discipline or even admonish white students who last spring
insulted, harassed and threatened students engaged in lawful protests agianst
[sic] the College's policy of continued investment in South Africa;
(b) failed to discipline or investigate students who made derogatory racial and
sexual slurs to black female students;
(c) only reluctantly and belatedly undertook an investigation of death threats
against a black woman student active in protesting against the College's South
Africa policy;
(d) imposed only the mildest punishment upon a fraternity which hazed a pledge
by causing him to become intoxicated and taking him through woods where he fell
and suffered severe injury; and
(e) upon information and belief, failed to impose any but the mildest discipline
upon a white male student for raping [**39] a woman on campus.
Complaint para. 36. To support a claim of selective enforcement, appellants must
allege "purposeful and systematic discrimination" by specifying instances in
which they were " 'singled . . . out for unlawful oppression' in contrast to
others similarly situated." Birnbaum v. Trussell, 347 F.2d 86, 90 (2d Cir. 1965)
(quoting Burt v. City of New York, 156 F.2d 791, 791 (2d Cir. 1946) (L. Hand,
J.)) (emphasis added). None of the allegations of nonenforcement involves
circumstances reasonably comparable to those surrounding appellants'
suspensions, in particular the uncontested fact of an outright refusal to obey
the orders of a college official. Moreover, allegations (a), (b) and (c) are
conclusory as to both the actual conduct and the weight of evidence known to
college officials, including knowledge of the perpetrators' identities.
Allegations (d) and (e) appear to lack a racial element and are conclusory as to
the punishment [*574] imposed. Of course, we do not mean that exactly, rather
than reasonably, comparable cases must be alleged. However, the nature of the
infraction and knowledge of the evidence by college officials must be
sufficiently similar to support [**40] a finding of facial inconsistency.
Otherwise, every conclusory selective-enforcement claim would lead to discovery
concerning the entire disciplinary history of a college and then to a confusing,
unmanageable and ultimately incoherent retrial of every disciplinary decision,
including decisions not to investigate.
Nevertheless, we remand the district court's dismissal of the Section 1981
claim. Appellants argue that the district court dismissed the claim because the
claim cited the fourteenth amendment instead of Section 1981 and that the court
did not measure the factual allegations in that claim against the legal
standards applicable under Section 1981. Although Judge Cholakis's remarks could
easily be read to the contrary, it is possible that, given the ambiguity in the
record, appellants thought that it would be futile to seek leave to amend.
Accordingly, we remand the dismissal of appellants' third claim to allow them an
opportunity to amend their complaint if they can satisfy the pleading
requirements discussed supra. Because this restores pendent jurisdiction over
appellants' second claim, we remand that claim as well. The dismissal of the
first claim is affirmed, and the [**41] panel decision is vacated.
Affirmed in part and remanded in part.
Rehearing in banc of an appeal from a judgment of the United States District
Court for the Northern District of New York (Con. G. Cholakis, Judge),
dismissing plaintiffs' claim under 42 U.S.C. §§ 1983 and 1981 (1982). Plaintiffs
alleged that disciplinary actions taken against them by the private college in
which they were enrolled were state action for constitutional purposes and
violated due process: constituted discrimination on the basis of race, ethnicity
and sexual orientation; and constituted a reprisal for their support of rights
protected under Section 1981. The district court, treating plaintiffs' Section
1981 claim as one arising under Section 1983, dismissed the complaint on the
ground that the disciplinary decision was not state action. A divided panel of
this court reversed. 824 F.2d 1333, modified on rehearing, 839 F.2d 871 (2d Cir.
1987).
We now vacate the panel's decision. We affirm the dismissal of the Section 1983
claim but remand the Section 1981 claim to allow plaintiffs to replead. Judge
Oakes dissents in a separate opinion.
CONCURBY: OAKES
DISSENTBY: OAKES
DISSENT: OAKES, Circuit Judge, dissenting [**42] and concurring:
I dissent from the dismissal of the section 1983 claim and concur in the remand
of the section 1981 claim for the reasons stated in the panel opinion, 824 F.2d
1333, modified on reh'g, 839 F.2d 871 (2d Cir. 1987), as I do not agree with the
majority's narrow treatment of section 1981 law. Speaking solely for myself
since, as a matter of en banc law, District Judge Metzner could not rehear this
case, I add my comments to the panel opinion.
I agree with Judge Friendly's concurring opinion in Coleman v. Wagner College,
429 F.2d 1120, 1126 (2d Cir. 1970), that state action occurred when, in response
to well-publicized student occupations during the Vietnam War era, the New York
legislature enacted New York Education Law § 6450 (McKinney 1985), compelling
private colleges to promulgate rules for maintaining public order. I say
"compelling" intentionally; the very first sentence of the statute states:
1. The trustees or other governing board of every college chartered by the
regents or incorporated by special act of the legislature shall adopt rules and
regulations for the maintenance of public order on college campuses and other
college property used for educational [**43] purposes and provide a program for
the enforcement thereof.
(Emphasis added.)
The statute requires that penalties for violation of the rules include
"suspension, expulsion or other appropriate disciplinary action." While the
words "other appropriate" may be weasel words, the statutory injunction
forbidding "state aid or assistance" to colleges that failed to conform to
section 6450(1), N.Y. Educ. Law § 6450(2), provided an irresistible incentive
for colleges to establish the strictest penalties possible for student
misconduct. Numerous colleges took this threat seriously and registered their
opposition to the new statute. See Letter from Frederick M. Binder, Associate
Commissioner for Higher Education, New York State Education Department, to
Lester W. Ingalls, Executive Vice President, Association of Colleges and
Universities of the State of New York (August 21, 1969). As the trustees of one
private college wrote, "Threatening to withhold State financial aid for
noncompliance with the law is, in our view, tantamount to coercion." Letter from
Trustees of Hobart and William Smith Colleges to Governor Nelson A. Rockefeller
(June 14, 1969). For the majority to say that there [**44] is no "evidence
whatsoever that any private college administrators anywhere in the State of New
York believe, reasonably or not, that the Henderson Act requires that particular
[*575] sanctions be imposed for disruption," majority op. at 570, seems to me
plain wrong.
State officials sent a strong message to colleges that strict adherence to the
new law was required and that the harsher penalties should be adopted. Within
days of the passage of section 6450, high ranking state education officials
(including two Regents, the Deputy Commissioner of Education for Higher and
Professional Education, and the Counsel to the Education Department) met with
college officials (including the Director of the Association of Colleges and
Universities of the State of New York, an organization of which Hamilton and
practically all of the other colleges in New York were members). Rejecting the
wishes of at least some colleges for "minimum compliance [with section 6450]
tied in with some vague and evasive statements," Frederick M. Binder,
Memorandum, "Summary of the Meeting Called to Discuss the Amendment to the
Education Law 129A -- Campus Unrest," at 2 (May 6, 1969), state officials
insisted that compliance with [**45] the law required that "the rules must be
precise." Id. Robert Stone, Counsel to the Education Department, stated that the
legislature clearly intended that the institutions should not " 'exercise as
much forebearance as they have.' " Quoted in Memorandum from John J. Meng,
Executive Vice President of Fordham University, to President and Vice Presidents
of Fordham University, at 2 (May 6, 1969). The state officials informed the
college representatives that section 6450's requirement of a "program for the
enforcement" of the rules meant that each college "must list the steps it will
take if the specified rules are breached," id. (emphasis added); that the
regulations must provide for the ejection of disrupters; that this provision
must be applied after a " 'reasonable time' " has elapsed, id. at 3 (quoting
Robert Stone); and that "nonapplication of the ejection rule would certainly not
be acceptable." Id. As one official noted at the meeting, "the legislature
clearly intended to take away from institutions the choice of whether or not to
eject violators." Id. at 4. In fact, soon thereafter the legislature established
a state commission to study and investigate [**46] campus unrest. The State
Education Department formally advised all colleges that the commission would
study the need for additional legislation, raising the spectre of further
regulation and intervention if colleges did not comply with section 6450. A
clear threat was in the air. Under these circumstances, had Hamilton actually
imposed " 'a rose and a peppercorn on Midsummer's Day,' " majority op. at 564
(quoting Coleman v. Wagner College, 429 F.2d 1120, 1124 (2d Cir. 1970)), instead
of the most severe penalties, there would have been more than a hue and cry;
there would have been "very midsummer madness." W. Shakespeare, Twelfth Night,
or, What You Will III.iv.56 (G. Evans ed. 1974).
Whether state education officials thought they had a duty to regulate campus
protest, state law imposed such a duty on them, giving their actions the weight
and authority of the state. See N.Y. Educ. Law § 207 (McKinney 1988) (regents
"exercise legislative functions concerning the educational system of the state,"
including its private institutions; "determine its educational policies"; and
"establish rules for carrying into effect the laws and policies of the state,
relating to education"); [**47] id. § 305(1) (commissioner of education enforces
education laws and executes policies determined by regents). See also Powe v.
Miles, 407 F.2d 73, 81 (2d Cir. 1968); Warder v. Board of Regents, 53 N.Y.2d
186, 423 N.E.2d 352, 440 N.Y.S.2d 875, cert. denied, 454 U.S. 1125, 71 L. Ed. 2d
112, 102 S. Ct. 974 (1981); cf. O'Neil, Private Universities and Public Law, 19
Buffalo L. Rev. 155, 185 (1970) (uniqueness of New York's far-reaching
regulatory authority over private institutions of higher learning). The fact
that state education officials have made little use of the rules since their
adoption is, to my mind, immaterial, in light of the initial pressure on
colleges to adopt regulations that provide suspension and expulsion as penalties
and to impose these penalties where there are violations.
The history of Hamilton's code of conduct illustrates the pressure felt by
colleges [*576] to comply with section 6450's mandate. Hamilton was "quite
content" with its pre-Henderson Act regulations. Albert v. Carovano, No.
86-CV-1302 (N.D.N.Y. Dec. 29, 1986) (deposition of Hadley S. DePuy, Associate
Dean of Hamilton College, 1965 to 1972). According to Associate Dean DePuy,
those "minimal regulations enabled [**48] our campus to maintain an open
dialogue with the students." Id. Hamilton preferred to address "student unrest
on a case-by-case basis, . . . [without] specif[ying] the particular steps to be
taken during a demonstration, nor the specific situations which would have been
considered improper during a demonstration." Id.
Once the legislature enacted section 6450, however, Hamilton was forced to
change its regulations. A faculty committee was convened to prepare the
college's proposed rules pursuant to a procedure set out in the college's
charter. The committee did not readopt the then existing regulations because it
was necessary "to be far more specific than we had been in the past" in order to
"satisfy the State." Id. (testimony of Austin E. Briggs, Jr., Professor,
Hamilton College). Asked whether the committee thought it had the choice of
pursuing its "own independent judgment" in drafting the new regulations, one
faculty member testified, "No, no, we felt we had none. . . . We were in fact
told by the president of the college that we had no choice in this matter." Id.
Thus, according to this faculty member and the then Dean of Students, the
committee's proposal did [**49] not reflect the committee's independent
professional judgment as to what was best for Hamilton as an educational
institution, but rather the dictates of the Henderson Act.
The faculty as a whole approved the proposed regulations and recommended that
the board of trustees submit the regulations to the State, a recommendation
which the board accepted. One participant recalled the faculty meeting as
follows:
Hugh Jones, who was with the college trustees at that time, and was a prominent
lawyer, explained to us at that meeting, and we knew it before the meeting . . .
explained to us quite clearly that we were obliged to adopt these regulations. .
. . We had to have a more strict set, more specific set of regulations and we,
the faculty, if we were not to adopt it, there would be penalties imposed upon
the college. We had no choice. We really had to accept these regulations.
Id. (testimony of James Ring, Professor, Hamilton College). Hugh Jones was, of
course, subsequently a distinguished member of the New York Court of Appeals.
Hamilton's post-Henderson Act regulations define proper order on campus and
provide the specific steps the president "shall" take when "normal procedures
[**50] have failed to maintain" proper order. Ending the college's flexibility
to pursue an unlimited "open dialogue," id. (DePuy deposition at 4), the new
regulations prohibit discussions from continuing "without limit" when there is
"interference with the conduct of any college activity or access to any
college-controlled facility." A Guide to the Policies and Procedures of Hamilton
College, at 43 (September 1986). If there is such interference or if there is no
substantial progress in the talks after a "reasonable" time, the rules require
the college to close the campus to outsiders and the disrupted area to students,
and to warn the disrupters that the college will seek an order from a court of
competent jurisdiction requiring them to cease their activities or face ejection
from the campus. If the disruption nonetheless persists, the president "shall
apply forthwith" to the court for the order and serve it upon the disruptive
students. Id. at 44. The regulations provide that suspension or expulsion
previously imposed only for "extremely serious misconduct," are now possible
sanctions for any violation of the rules on campus order. Thus Hamilton,
although previously content [**51] with its existing regulations, promulgated a
"more strict set, more specific set of regulations," Albert, No. 86-CV-1302
(testimony of James Ring, Professor, Hamilton College), to comply with the
mandate of section 6450 and the pressures exerted by state officials on the New
York colleges. It is those changes which are [*577] directly implicated in the
disciplinary actions against the student-appellants here. To say that
"Hamilton's adoption of a new code of conduct in 1969 is . . . of no relevance,"
majority op. at 570, is, I think, to sweep the chess pieces off the board.
In the instant case, Hamilton officials closely followed the 1969 code. Dean of
Students Jervis closed the campus to outsiders, barred students from Buttrick
Hall, and warned the students that, unless the disruption ceased, the college
would seek a court injunction. President Caravano cited the students' failure to
obey the off-limits declaration and their alleged defiance of the temporary
restraining order as the reasons for imposing discipline. In light of the
college's precise compliance with rules demanded by the legislature and state
education department officials, the present college dean and president's
suggestion [**52] of independent action is inapposite if not disingenuous.
In the confusing sea of state action law, see L. Tribe, American Constitutional
Law ch. 18 (2d ed.) (forthcoming), where the Supreme Court has declared the
formulation of "an infallible test" an " 'impossible task,' " Reitman v. Mulkey,
387 U.S. 369, 378, 18 L. Ed. 2d 830, 87 S. Ct. 1627 (1967) (quoting Burton v.
Wilmington Parking Auth., 365 U.S. 715, 722, 6 L. Ed. 2d 45, 81 S. Ct. 856
(1961)), the majority relies primarily upon Blum v. Yaretsky, 457 U.S. 991, 73
L. Ed. 2d 534, 102 S. Ct. 2777 (1982), and concludes that Hamilton's actions
were not caused by a rule of conduct imposed by the State. In Yaretsky, the
Court noted the absence of a challenge to a particular state regulation, 457
U.S. at 1003, but said that "a State normally can be held responsible for a
private decision only when it has exercised coercive power or has provided such
significant encouragement, either overt or covert, that the choice must in law
be deemed to be that of the State." 457 U.S. at 1004. In a companion case,
Rendell-Baker v. Kohn, 457 U.S. 830, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982),
the Court found no state action where a private school's decisions to discharge
certain employees "were not compelled or even influenced by any state
regulation." [**53] 457 U.S. at 841. Here, the State did exercise coercive power
and did so overtly. Had the pre-Henderson Act regulations been in effect at the
time of appellants' protest, that protest might or might not have amounted to
the "extremely serious misconduct" necessary to authorize suspension. In
contrast, the regulations adopted in direct response to the Henderson Act and
concomitant state pressure permit the severe penalty of suspension for any
misconduct. At the very least, I believe the students have shown that a factual
dispute exists as to whether Hamilton's actions were caused by a rule of conduct
imposed by the State, see Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 73 L.
Ed. 2d 482, 102 S. Ct. 2744 (1982); Flagg Bros., Inc. v. Brooks, 436 U.S. 149,
155-56, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1978), and, in my view, have satisfied
the first part of the state action test.
The second part -- whether Hamilton College, its President, and its Dean were
state actors -- is less clear. The discovery time available to the plaintiffs
was extremely short. Less than four weeks elapsed between commencement and
dismissal of the action and appellants had access to state Education Department
files for only one week before the evidentiary hearing. Still, enough [**54]
appears in the record to warrant further inquiry into whether, as I believe, the
Hamilton officials took steps compelled by regulations which in turn were
compelled by the statute as interpreted by state education officials and college
administrators. The conduct of the college and the college officials was thus
"chargeable to the State," Lugar, 457 U.S. at 937, given the "sufficiently close
nexus between the State and the challenged action of the regulated entity."
Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 42 L. Ed. 2d 477, 95 S.
Ct. 449 (1974); see also Burton, 365 U.S. 715, 6 L. Ed. 2d 45, 81 S. Ct. 856.
Even though the unanimity among those of my colleagues who sat on this case when
reheard has caused me to think long and hard as to whether Judge Metzner and I
[*578] had not in the panel opinion gone astray, the "sifting [of] facts and
weighing [of] circumstances" required by Burton, 365 U.S. at 722, quoted in
Lugar, 457 U.S. at 939, convince me that "the nonobvious involvement of the
State," id., is of sufficient significance to warrant trial on the section 1983
claim.
Concerning the section 1981 claim, as to the disposition of which I concur, I
add just a few words to note my disagreement with the majority's [**55]
reasoning. The crabbed reading of section 1981 in Judge Winter's opinion fails
to recognize that non-minority plaintiffs only need show unfair discrimination
in response to their efforts to aid minorities in the exercise of their rights,
in order to state a section 1981 claim. DeMatteis v. Eastman Kodak Co., 511 F.2d
306, 312 (2d Cir.), modified on other grounds, 520 F.2d 409 (1975) (holding that
"a white person who has been '. . . punished for trying to vindicate the rights
of [non-white] minorities . . .' has standing to sue under § 1981" (quoting
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 24 L. Ed. 2d 386, 90
S. Ct. 400 (1969))).
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