Zentgraf v. TEXAS A & M UNIVERSITY

• Decision Date: 04 June 1980
• Docket Number: Civ. A. No. H-79-943.
• Citation: 492 F. Supp. 265
• Parties: Melanie ZENTGRAF, Plaintiff, The United States of America, Plaintiff-Intervenor, v. TEXAS A & M UNIVERSITY et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

492 F. Supp. 265

Melanie ZENTGRAF, Plaintiff The United States of America, Plaintiff-Intervenor, v. TEXAS A & M UNIVERSITY et al., Defendants.

Civ. A. No. H-79-943.

United States District Court, S. D. Texas, Houston Division.

June 4, 1980.

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Nelkin & Nelkin, Carol Nelkin, Houston, Tex., for plaintiff.

U. S. Dept. of Justice, Craig M. Crenshaw, Jr., Washington, D. C., for plaintiff-intervenor.

Lonny F. Zwiener and Barbara C. Marquardt, Austin, Tex., for defendants.

MEMORANDUM AND ORDER:

STERLING, District Judge.

Presently pending before the Court are Defendants' motion to dismiss Plaintiff's complaint and Defendants' motion to dismiss Plaintiff-Intervenor's complaint. Fed. R.Civ.P. 12(b)(1), (6) and (7). The motions to dismiss are opposed. Pursuant to the Court's order of November 26, 1979, and in conformity with the notice of dismissal filed by Plaintiff, Colonel James R. Woodall was dismissed from this action.

Plaintiff has brought this sex discrimination action against Texas A & M University, the President of the University, the Vice President of Student Services and the Cadet Colonel of the Corps of Cadets under the Fourteenth Amendment of the United States Constitution, 20 U.S.C. § 1681 and 42 U.S.C. §§ 1983, 1985 and 1986. Moreover, Plaintiff seeks to invoke the pendent jurisdiction of the Court to redress deprivation of rights secured by Article I, § 3a of the Constitution of the State of Texas.

The United States has intervened in this action under the authority of section 902 of the Civil Rights Act of 1964, 42 U.S.C. § 2000h-2. The complaint in intervention seeks relief under the Fourteenth Amendment to the United States Constitution, 20 U.S.C. § 1681, et seq., 42 U.S.C. § 1983, 10 U.S.C. § 2102, and 28 U.S.C. §§ 2201 and 2202. Jurisdiction is conferred on the Court by 28 U.S.C. §§ 1331, 1343 and 1345.

Plaintiff, an adult female citizen of the United States and a cadet in the Corps of Cadets of Texas A & M University has brought this action on her own behalf and on behalf of all others similarly situated, pursuant to Rule 23(b)(2) of the Fed.R. Civ.P. The class which Plaintiff claims to represent consists of women who are, have been, or have applied to be or may apply to be members of the Corps of Cadets. Plaintiff alleges that Defendants have violated federal and state statutory and constitutional provisions by excluding women, on the basis of sex, from participation in organizations affiliated with the Corps of Cadets of Texas A & M University. Furthermore, Plaintiff maintains that Defendants have declined to implement non-discriminatory policies towards women and that Defendants have perpetuated discriminatory practices and encouraged harassment of the female members of the Corps of Cadets.

Plaintiff and Plaintiff-Intervenor hereinafter Plaintiffs seek to invoke 20 U.S.C. § 1681 which provides that no person in the United States shall, on the basis of sex, be excluded from, or subject to discrimination under any educational program or activities receiving federal financial assistance. The Supreme Court in its recent decision in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), established that an individual may pursue a private cause of action under 20 U.S.C. § 1681. In pursuing a private action, individual plaintiffs are not required to exhaust their administrative remedies before filing suit. Cannon v. University of Chicago, supra, at 706-08 n. 41, 99 S.Ct., at 1962-63 n. 41.

Defendants assert that Plaintiffs have no cause of action under 20 U.S.C. § 1681, as subsection (a)(4) of the statute establishes an exemption for any educational institution with the primary purpose of training individuals for the military services of the United States. 20 U.S.C. § 1681(a)(4). The statute provides that in instances where an institution is composed of more than one school, college, or department, which are administratively separate units, each such unit is considered to be an educational institution. 20 U.S.C. § 1681(c).

To qualify for exemption under § 1681(a)(4) the Corps of Cadets of Texas A & M University must meet the following prerequisites: (1) the Corps must qualify, pursuant to § 1681(c), as an "educational institution" within the University; and (2) the Corps must have the primary purpose of training individuals for the military services of the United States.

Defendants have submitted additional information in support of their motions to dismiss Plaintiffs' claims under 20 U.S.C. § 1681. The Court interprets Defendants' motions to dismiss Plaintiffs' claims under § 1681 as motions for partial summary judgment. Fed.R.Civ.P. 56. Accordingly, the Court will grant all parties an additional 45 days to submit "all material made pertinent to such motion by Rule 56." Fed. R.Civ.P. 12(b).

Plaintiff-Intervenor has attempted to state a claim under section 809 of Public Law 95-485, 10 U.S.C. § 2102, which directs the Secretary of Defense to require that any "military college" shall, as a condition of remaining designated as a "military college," "provide that qualified female undergraduate students enrolled in such college or university be eligible to participate in military training at such college or university . . .." Further, the statute provides that the Secretary of Defense shall prescribe such regulations as he determines to be appropriate or necessary to carry out the provisions of the statute. Plaintiff has not sought relief under 10 U.S.C. § 2102.

Defendants assert that 10 U.S.C. § 2102 does not confer on Plaintiff-Intervenor the right to complain of alleged sex discrimination in the Corps of Cadets at Texas A & M University because said statute at most permits the Secretary of Defense to withdraw the designation of "military college" from an educational institution, conferring no powers upon the United States Justice Department in this case. Plaintiff-Intervenor urges that it has standing under the United States' general authority to sue to enforce the terms and conditions of its contracts. Cotton v. United States, 52 U.S. (11 Howard) 229, 231, 13 L.Ed. 675 (1850). The Court, after examining and considering the statute, its legislative history and the regulations promulgated under it, has concluded that the statute does not expressly or implicitly authorize Plaintiff-Intervenor's claim. Also, the language of the statute does not confer a right upon Plaintiff or her class. The statute is a directive to the Secretary of Defense.

The Court is of the opinion that Plaintiff-Intervenor's contract theory for standing falls within the principle adopted by the Fifth Circuit in United States v. Madison County Board of Education, 326 F.2d 237 (5th Cir.), cert. denied, 379 U.S. 929, 85 S.Ct. 324, 13 L.Ed.2d 341 (1964):

"A general liability created by statute without a remedy may be enforced by an appropriate common-law action. But where the provision for the liability is coupled with a provision for a special remedy, that remedy, and that alone must be employed."

326 F.2d at 242, quoting Pollard v. Bailey, 87 U.S. (20 Wallace) 520, 527, 22 L.Ed. 376 (1874); see, Bossier Parish School Board v. Lemon, 370 F.2d 847, 852 (5th Cir.), cert. denied, 388 U.S. 911, 87 S.Ct. 2116, 18 L.Ed.2d 1350 (1967). Further, the regulations promulgated under 10 U.S.C. § 2102, while providing for the enrollment of female cadets, only require that the host institution not discriminate "with respect to admission to the institution or subsequent treatment of students on the basis of race, color, or national origin." 44 Fed.Reg. 51220, 51222 (to be codified in 32 C.F.R. §§ 562, 562.7(a)(6) effective date January 22, 1979). Prior regulations required similar written assurances of non-discrimination on the basis of race, color or national origin. 32 C.F.R. §§ 562, 562.13 and 562.15 (1979). Assurances entered into under these regulations are without reference to sex discrimination and provide no basis for specific enforcement. Consequently, Defendants' motion to dismiss Plaintiff-Intervenor's claim under 10 U.S.C. § 2102 is GRANTED.

With regard to Plaintiffs' claims of denial of equal protection under the Fourteenth Amendment of the United States Constitution, Movants maintain that there is no substantive constitutionally protected right to participate in student organizations. The Movants analogize the alleged sex based discrimination in student organizations with sex based hair length regulations in public high schools. The Court is of the opinion that the analogy is entirely inapt.

Movants seek support for their position in the Fifth Circuit case of Karr v. Schmidt, 460 F.2d 609 (5th Cir.), cert. denied, 409 U.S. 989, 93 S.Ct. 307, 34 L.Ed.2d 256 (1972), wherein the Court concluded that sex based grooming regulations are not denials of equal protection unless they are arbitrary and unreasonable. The Court in Karr determined that sex based high school grooming regulations do not impinge upon a fundamental right and create no suspect classification. In a footnote to the opinion the Court stated that federal courts would still be permitted to entertain actions alleging discriminatory enforcement of grooming regulations. 460 F.2d at 617 n. 26. However, the Fifth Circuit in Lansdale v. Tyler Junior College, 470 F.2d 659 (5th Cir. 1972), cert. denied, 411 U.S. 986, 93 S.Ct. 2268, 36 L.Ed.2d 964 (1973), determined that sex based hair regulations at the college level are generally unreasonable restraints of personal liberty violative of the Due Process and Equal Protection clauses of the Fourteenth Amendment of the United States Constitution.

Defendants' argument misses the mark in that it is well established that gender based classifications are subject to judicial scrutiny under the equal protection clause. Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976); Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253...