Greenya v. George Washington University

• Decision Date: 02 May 1975
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 556

512 F.2d 556

167 U.S.App.D.C. 379

John R. GREENYA, Appellant v GEORGE WASHINGTON UNIVERSITY et al.

No. 73-2056.

United States Court of Appeals District of Columbia Circuit.

Argued 16 Jan. 1975.

Decided 2 May 1975.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action 1744-71).

Edward L. Genn, Washington, D. C., with whom Herbert L. Karp, Washington, D. C., was on the brief for appellant.

Donald L. Ivers, Washington, D. C., with whom Denver H. Graham, Washington, D. C., was on the brief for appellee, George Washington University, also argued for appellee Reesing.

Thomas D. Quinn, Jr., Washington, D. C., was on the brief for appellee John Reesing, Jr.

Before MacKINNON and WILKEY, Circuit Judges, and VAN PELT, ^* United States Senior District Judge for the District of Nebraska.

Opinion for the Court filed by Circuit Judge WILKEY.

WILKEY, Circuit Judge:

This case arises out of the termination of appellant's employment as a part-time, off-campus instructor with the College of General Studies of The George Washington University. During his last academic year, appellant taught one English course each semester at the United States Naval School of Hospital Administration, Bethesda, Maryland, where his students were mainly naval officers and other persons attached to the School. The University provided these courses to the Navy under contract and the University, in turn, arranged for an instructor. Appellant's complaint claimed a violation of his civil rights and common law claims of defamation, wrongful termination, and breach of contract by George Washington University and John Reesing, Jr., the Chairman of the English Department. At trial the court granted defendants' motion for a directed verdict on the constitutionally-based claims for relief and on the claims relating to defamation. The issues relating to wrongful termination and breach of contract went to the jury, who found for defendants. We affirm.

I. Constitutionally-Based Claims

Initially we must determine whether the District Court was in error when it determined (after considering appellant's evidence at trial) that appellant had failed as a matter of law to present any constitutionally-based claims for relief. Appellant had alleged that he had been fired because one or more articles he had written and had published aroused the displeasure of defendant Reesing. It is contended that as a result Reesing failed to renew appellant's contract, a contract which would otherwise have been routinely renewed. Although defendants contest both these allegations, the District Court did consider appellant's contractual claims sufficiently substantial to permit them to go to the jury. Therefore, in ruling on the constitutional claims, we must also assume that appellant would have prevailed sufficiently on these allegations to permit them to go before the jury. In addition, both sides concede that appellant was granted no procedural rights whatsoever in connection with the non-renewal of his contract.

The District Court's grant of a directed verdict for defendants is based on two grounds: First, after listening to the evidence, it determined that there was a lack of sufficient governmental involvement in appellant's employment relationship or termination to trigger application of First or Fifth Amendment guarantees. Second, even if there had been sufficient governmental involvement, the Civil Rights Statute, 42 U.S.C. § 1983, failed to give appellant a claim for monetary relief, because it was inapplicable by its terms to actions undertaken "under color" of federal law or custom. As will be discussed in more detail below, we find the District Court was correct on both these grounds.

A. State Action

All analysis of constitutional rights must begin with a recognition that the Constitution, with rare exceptions, ¹ is a declaration of the powers, duties, and limitations of the Federal Government and of the States. Although government has broad power to prohibit actions undertaken by private individuals, the Constitution proprio vigore only places limitations on actions undertaken by governmental entities. Simple though the distinction may seem between that which is public and that which is private, and although much has been written on the topic, ² the increasing number of teacher dismissal cases reaching the federal courts from private universities indicates that some discussion of the relevant constitutional issues is in order. ³

George Washington University, like nearly all private institutions of higher learning, received a corporate charter from the appropriate governmental chartering authority, is exempt from taxation under federal and local law because it is an educational institution, and receives federal funding for certain of its programs and capital expenditures. We have no difficulty deciding that the first two factors do not constitute sufficient governmental involvement in the University to make it a governmental entity for constitutional purposes. ⁴ The granting of a corporate charter is ministerial governmental action and does not involve the Government to any significant degree in either the management or the promotion of a chartered corporation. Similarly, granting tax-exempt status to a class of organizations such as institutions of higher learning, although it tends to foster support for organizations so exempted, does not involve Government in the management of such organizations or in the promotion of particular exempted organizations within the class. Even in the more rigid context of the Establishment Clause mere tax exemption of religious organizations has consistently been found not to breach the separation of church and state. ⁵

Looking to the third factor, however, we find some cases that have held that significant government funding constitutes sufficient state involvement in the activities of the recipient to trigger constitutional guarantees for those dealing with the recipient. With rare exceptions these cases have dealt with racial discrimination practiced by recipients of government funds. ⁶ "It is arguable ... that racial discrimination is so peculiarly offensive and was so much the prime target of the Fourteenth Amendment that a lesser degree of involvement may constitute 'state action' with respect to it than would be required in other contexts ...." ⁷ With the possible exception of racial discrimination by recipients of government funding, we believe that mere financial support for particular projects also represents insufficient government involvement.

In most respects such financial support can be viewed the same as a tax exemption. Such support is generally provided to a large class of qualified organizations and does not involve government in the actual management of the funded program. It might be argued that a tax exemption is distinguishable because it merely provides a vehicle for private funding, while government grants, loans, or loan guarantees represent direct governmental support. ⁸ The reality is that while a direct grant represents a matching fund arrangement between government and recipient, a tax exemption is a matching fund arrangement entered into between government and the recipient's contributors. Although the conditions attached to direct grants, loans, or loan guarantees might be somewhat more detailed and exacting than those for tax exempt status, the distinction does not become significant until the conditions become so all pervasive that the Government has become, in effect, a joint venturer in the recipient's enterprise. ⁹

Our conclusions are predicated on the absence of any showing before the District Court that the Federal or District of Columbia Government has exercised any role in the management of George Washington University or has adopted a pervasive scheme of statutes, codes, and conditions which has the effect of regulating in detail the University's management. While the determination of how much governmental involvement is necessary before a private institution is subject to constitutional limitations must be made on a case by case basis, we are clear that the mere receipt of government loans or funding by an otherwise private university is not sufficient involvement to trigger constitutional guarantees in the University's relations with its employees. ¹⁰

Realizing that the above three factors would probably prove insufficient, appellant has sought to augment his case by emphasizing that he was employed to teach government employees at government facilities. This is of no importance in light of the evidence that he was always under the supervision and control of University officials, and that he maintained no contractual relations with the Navy. Nothing in the record indicates that the Navy had any right to say who would be hired to teach the English courses. Neither does the record indicate that the Navy had anything whatsoever to do with the failure to renew appellant's contract. Appellant was merely the employee of an independent contractor who was providing educational services to the Navy.

George Washington University must, in the present case, be viewed as a private institution. Absent a nexus between appellant's termination by the University and the Navy, appellant can have no claims for relief against the University or its employees arising under the First Amendment or the procedural due process guarantees of the Fifth Amendment.

B Jurisdiction under the Civil Rights Statute

Appellant insists that notwithstanding the Supreme Court's opinion in District of Columbia v. Carter ¹¹ he ought to be able to present constitutionally-based claims for monetary relief. He appears to be under the misapprehension that the District Court was deciding that the Civil Rights Statute, 42 U.S.C. § 1983, was inapplicable within the District of Columbia and therefore he has argued that an equal protection problem lurks in the statute.

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