Coleman v. Wagner College, 858

• Decision Date: 22 June 1970
• Docket Number: No. 858,Docket 34869.,858
• Citation: 429 F.2d 1120
• Parties: Barbara COLEMAN, by her parent Annie Mae Coleman, et al., Appellants, v. WAGNER COLLEGE, Arthur Ole Davidson, individually and as President of Wagner College, Harold Haas, individually and as Dean of the College of Wagner College, and William E. Maher, individually and as Dean of Students of Wagner College, Appellees.
• Court: U.S. Court of Appeals — Second Circuit

429 F.2d 1120 (1970)

Barbara COLEMAN, by her parent Annie Mae Coleman, et al., Appellants, v. WAGNER COLLEGE, Arthur Ole Davidson, individually and as President of Wagner College, Harold Haas, individually and as Dean of the College of Wagner College, and William E. Maher, individually and as Dean of Students of Wagner College, Appellees.

No. 858, Docket 34869.

United States Court of Appeals, Second Circuit.

Argued May 14, 1970.

Decided June 22, 1970.

Jonathan Shapiro, New York City (Margaret Burnham and Jack Greenberg, New York City, on the brief), for appellants.

Michael J. Saltser, New York City (Robert S. Bernstein, Martin L. Edelman, Edward L. Peck and Battle, Fowler, Stokes & Kheel, New York City, on the brief), for appellees.

Before FRIENDLY and KAUFMAN, Circuit Judges, and McLEAN, District Judge.^*

IRVING R. KAUFMAN, Circuit Judge:

This case presents an interesting variation on the familiar theme of state action. A not uncommon method of establishing the presence of state action is to show that a private organization has undertaken to perform functions peculiarly "public" in nature and traditionally entrusted to the state. When a state acquiesces in the governing of a town by a private company or permits a political party to control a primary election, it may expect to be held responsible for the acts of those performing state functions. See Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944); Developments in the Law — Academic Freedom, 81 Harv. L. Rev. 1045, 1060-61 (1968) (public function theory applied to education). The approach to state action pressed upon us in this case is the converse of the public function doctrine. The state has intervened in the performance of a function traditionally entrusted to private organizations, the maintenance of internal order by private universities. By so doing, we are told, it has subjected the imposition of disciplinary sanctions by private colleges and universities to scrutiny under the fourteenth amendment.

Having put the question presented to us in perspective, we now distill the following factual account from the complaint, affidavits and testimony at a hearing held to determine whether an order to show cause and a temporary restraining order should be issued. The basic outline follows countless similar scenarios enacted on college campuses across the country. In April 1970, the twenty-four plaintiffs were students at Wagner College, a privately supported college affiliated with the Lutheran Church and located on Staten Island in New York City. All were members of "Black Concern," a campus organization devoted to furthering the interests of blacks and other ethnic group students at Wagner. The incident which occasioned their expulsion commenced shortly before noon on April 23, when a group of students including the plaintiffs visited the office of Dean Haas, Dean of the College, for the purpose of arranging a meeting with Wagner's President, Dr. Davidson. Dean Haas made an effort to communicate with Dr. Davidson but was unsuccessful. At no time while they were present in his office, the students tell us, was Dean Haas physically restrained, nor did he request that they depart or threaten disciplinary measures.

Other members of the college's staff, however, seem to have viewed the students' presence in Dean Haas's office in a different light. Dean of Students Maher, who apparently had primary responsibility for student discipline, requested the plaintiffs to vacate the office, and at 12:45 p.m. they were warned that unless they did so within ten minutes they would be suspended. The students, nevertheless, failed to leave Dean Haas's office. At 4:00 p.m. Dean Maher stated in writing that all students in the office were suspended for the remainder of the year; that Dean Haas's detention by the students would be referred to the police if he were not freed immediately; and that the students would be expelled if they did not leave the office within an hour.

Dean Haas testified that Maher's statement was passed in to the office together with a copy of the rules and regulations for the maintenance of public order adopted by the college following the enactment of New York State Education Law, McKinney's Consol. Laws, c. 16, section 6450.¹ This section required every college in the State of New York to file with the regents and the commissioner of education "rules and regulations for the maintenance of public order on college campuses." And "the penalties for violations of such rules and regulations were to be clearly set forth therein" and could include "suspension, expulsion or other appropriate disciplinary action" for student violators. Colleges which failed to file such rules and regulations lost their eligibility for state aid to education.

Despite Dean Maher's warning, the plaintiffs refused to leave Dean Haas's office. We are also told that Dean Haas remained until 7:15 p.m., and before his departure, allegedly granted the students permission to utilize the office for a meeting with their attorneys. This meeting was concluded at about 10:00 p.m., and the students then left the office.

The College, thereafter, proceeded to carry out its ultimatum. On April 25, the twenty-four plaintiffs and three other students who had been present in the office received notices of expulsion. The notices did not specify the college rule the students were alleged to have violated, though they did set forth the procedures for an appeal to the Faculty Counsel. The students were required to leave the Wagner campus by 5:00 p.m. April 27, a deadline prior to the time the Faculty Counsel could hear their appeals.

After failing to convince the College to stay the order requiring them to depart from the campus, twenty-four of the expelled students brought this action in the Eastern District of New York. The students alleged that the procedures employed by the college in issuing the expulsion orders did not comport with the requirements of due process. Moreover, based upon allegations of college hostility toward black students and its failure to expel white students who had engaged in similar demonstrations, the expulsions were claimed to have been in violation of the equal protection clause of the fourteenth amendment. The complaint sought injunctive relief ordering the college to reinstate the students pending a hearing, to conform its hearing procedures to the requirements of due process, and to refrain from racially discriminatory expulsions. After a hearing which appears to have been restricted to the question of state responsibility for the imposition of disciplinary sanctions by Wagner College, the district court declined to issue an order to show cause and a temporary restraining order and, sua sponte, dismissed the complaint for want of jurisdiction.²

On appeal, the students do not urge that all of the actions of the administrative staff of Wagner College, an institution affiliated with a religious denomination and supported almost entirely by private funds, are actions of the state. Perhaps this is so because we rejected a similar contention in Powe v. Miles, 407 F.2d 73 (2d Cir. 1968). Instead, the appellants seize upon Judge Friendly's dictum in Powe that "state action would be * * * present in a case involving campus demonstrations if New York had undertaken to set policy for the control of demonstrations in all private universities."³ 407 F.2d at 81. By enacting section 6450, they argue, the state legislature did undertake to set policy for dealing with campus demonstrations and, in fact, became involved with the regulation of the very activity by which the plaintiffs claim to have been unjustly injured — the imposition of disciplinary sanctions for offenses against the public order on college campuses.

The appellants' interesting argument is not without some support. In several instances, public regulation of private organizations has been adjudged a basis for a finding of state action. The Supreme Court has determined that a privately-owned and publicly-regulated transit company's practice of broadcasting radio programs on its buses and trolleys was susceptible to challenge as a "state" action. Public Utilities Commission of District of Columbia v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952). The Public Utilities Commission of the District of Columbia, the regulatory agency involved in Pollak, licensed and closely supervised Capital Transit's service. The Commission had, in fact, granted specific approval to the challenged practice. Similarly, a political party required to perform certain significant duties by law and to conform its internal organization to statutory standards was not permitted to evade the fourteenth amendment's proscription of racial segregation in the conduct of primary elections.⁴ Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757 (1944).

But, this case differs in material respects from the cited cases. Neither the New York legislature, the regents, nor the commissioner of education ever granted approval to the particular conduct sought to be challenged, as had the Public Utilities Commission in Pollak. See Developments in the Law — Academic Freedom, 81 Harv. L. Rev. 1045, 1058 (1968). Nor, in our view, was Wagner College's expulsion of twenty-four students for participation in a campus demonstration as closely tied to traditional governmental functions as was the conduct of primary elections by the Democratic party of Texas in Smith v. Allwright. Moreover, it appears to us that the "regulation" of college discipline embodied in section 6450 appears almost devoid of meaningful content. Colleges are not required to secure approval of rules and regulations drafted pursuant to the section but merely to file them with the designated officials. The statute does not proscribe specific activities or types of conduct as violations of the public...