762 F.2d 142 (1st Cir. 1985), 84-1528, United States v. Massachusetts Maritime Academy

Docket Nº:84-1528.
Citation:762 F.2d 142
Party Name:UNITED STATES of America, Plaintiff, Appellee, v. MASSACHUSETTS MARITIME ACADEMY, et al., Defendants, Appellants.
Case Date:May 16, 1985
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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762 F.2d 142 (1st Cir. 1985)

UNITED STATES of America, Plaintiff, Appellee,


MASSACHUSETTS MARITIME ACADEMY, et al., Defendants, Appellants.

No. 84-1528.

United States Court of Appeals, First Circuit

May 16, 1985

Heard Nov. 5, 1984.

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[Copyrighted Material Omitted]

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Kenneth H. Tatarian, Boston, Mass., for defendants, appellants.

Mark L. Gross, Dept. of Justice, Washington, D.C., with whom William F. Weld, U.S. Atty., Boston, Mass., William Bradford Reynolds, Asst. Atty. Gen., and Walter W. Barnett, Dept. of Justice, Washington, D.C., were on brief, for plaintiff, appellee.

Before CAMPBELL, Chief Judge, COFFIN, Circuit Judge, and WYZANSKI, [*] Senior District Judge.


This appeal by the Massachusetts Maritime Academy ("the Academy") is from an injunction issued by the district court after deciding that the Academy had intentionally discriminated against women in recruiting and admissions policies. We affirm.


The Academy was founded in 1891 by the Commonwealth of Massachusetts as the Massachusetts Nautical Training School, "for the instruction and training of pupils in the science and practice of navigation," 1891 Mass.Acts, ch. 402, section 3. Today it prepares students primarily for careers in the United States Merchant Marine, offering a bachelor of science degree in marine engineering and marine transportation.

The Academy has received federal aid since its inception. See 1891 Mass.Res., ch. 4. Under a Joint Congressional Resolution issued in 1941, it and the other state maritime academies have also been subject to extensive federal regulation. H.R.J.Res. 139, 55 Stat. 607 (1941). Thus, as a condition for receiving federal funds and using United States vessels, the Academy must observe federal minimum standards with respect to entrance requirements, instructional staff, training facilities and the like. Id. See also the Maritime Education and Training Act of 1980, 46 U.S.C. Sec. 1295c(f)(1)(B) (Supp.1984).

Under pre-1973 regulations of the federal Maritime Commission, an entrant to a state maritime academy had to "be a male citizen of the United States." 6 Fed.Reg. 5755 (1941) (codified at 46 C.F.R. Sec. 293.71 (1941) ). This requirement was eliminated in revised regulations promulgated by the Secretary of Commerce on April 24, 1973, a stated purpose of which was to "delete improper restrictions on age and sex." 38 Fed.Reg. 10,087. Federal regulations have since allowed state maritime academies to recruit without limitation as to gender. See 46 C.F.R. Sec. 310.6(a)(1) (1984). Following the 1973 regulatory change, most state maritime academies began to admit women almost immediately. The Academy did not admit women, however, until the fall of 1977.

In the fall of 1974, Maryann Kazukonis, at that time a senior high school student, expressed her interest in applying to the

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Academy for admission as a cadet. She met with Thomas S. Lee, the Academy's Director of Admissions, who informed her in no uncertain terms that women were not accepted at the Academy. 1 She was also told that her academic record was deficient because she lacked one of the mathematics courses required for admission. Ms. Kazukonis filed complaints with the Attorney General of the United States and with the Massachusetts Commission Against Discrimination. On August 14, 1975, the Attorney General, pursuant to the dispositions of Title IV of the Civil Rights Act of 1964 as amended, 42 U.S.C. Sec. 2000c et seq., notified the Board of Trustees of the Massachusetts State Colleges ("the Board"), the body then responsible for the administration of the Academy, that in his view the Academy's single-sex admissions policy violated the equal protection clause of the fourteenth amendment of the United States Constitution.

In response to the Attorney General's letter, the Academy appointed an ad hoc committee in November 1975 to study the matter. Mr. Lee vigorously opposed admitting women, touching off a prolonged debate within the committee.

By April 30, 1976, the Academy had yet to reach a decision. On this date the Attorney General brought this action alleging unconstitutional discrimination. Named as defendants were the Academy; its President; its Director of Admissions, Mr. Lee; the Board of Trustees of the Massachusetts State Colleges; and the Board's individual members. The Attorney General sued under purported authority of 42 U.S.C. Sec. 2000c-6(a) and (b). 2 He attached to his complaint the certificate required by that section. As in his communication to

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the Academy, the Attorney General alleged in his complaint that the Academy's single-sex admissions policy was in violation of the fourteenth amendment. Injunctive relief was requested.

On May 5, 1976, the committee decided to recommend that admission be extended to women. It suggested, however, that they not "be actively recruited at this time." A few days later, the Academy moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(1) and (6), claiming that the United States lacked authority to maintain the action on behalf of the complainant, that the fourteenth amendment was inapplicable because the Academy was a federal, rather than a state, instrumentality and that the controlling standards of the fifth amendment did not prohibit a single-sex admissions policy.

On June 10, 1976 the Board of Trustees voted to adopt the committee's recommendations and to admit the first class of women in September 1977. Mr. Lee, as Director of Admissions, was entrusted with the implementation of the new policy and with making the necessary adjustments. Ms. Kazukonis was invited to reapply for admission in the new class, but she declined to do so.

Thereafter, the Academy filed its answer to the complaint claiming that the action was mooted by the Board's June 10, 1976 decision. It insisted that "[a]ny discrimination in admissions policy prior to June 10, 1976 was required by or permitted under the aegis of federal statutes or regulations." The Academy's motion to dismiss was denied by the district court on September 1, 1976 after a hearing.

In the fall of 1976, the Massachusetts Commission Against Discrimination was allowed to intervene in the action, but the following year was stricken as an intervenor upon defendants' motion. United States v. Massachusetts Maritime Academy, 76 F.R.D. 595 (D.Mass.1977). Meanwhile, from 1977 to the present, women were being admitted to the Academy. In late 1979, while discovery was being conducted by the parties, the Academy filed a renewed consolidated motion to dismiss the complaint, claiming that the case had become moot because women were now admitted to the Academy on the same terms as men, and because Ms. Kazukonis, from whom the Attorney General had received the complaint, see footnote 2, supra, had not renewed her application for admission, although she was offered an opportunity to do so. This motion was also denied by the district court.

On October 24, 1980, the United States moved to amend its complaint so as to limit its original claim (based upon the males-only admissions policy) to the period before the Board's June 10, 1976 vote to accept women, and to add a new claim that after that date the Academy had continued to discriminate intentionally on the basis of sex in its recruitment and admissions practices and procedures. The United States also sought to substitute the names of individual defendants to reflect changes in the membership of the Board. No new certification under 42 U.S.C. Sec. 2000c-6 was filed by the Attorney General reflecting fresh complaints relative to the amended claims. Over defendants' opposition, the amendments were allowed by the district court on February 2, 1981.

On March 10, 1981, the United States moved to make supplementary amendments to the complaint, this time to reflect a reorganization of the public college system in Massachusetts. The newly created Board of Regents of Higher Education of the Commonwealth of Massachusetts ("Regents") and the Board of Trustees of the Academy ("Trustees") were substituted for the old Board of Trustees of the Massachusetts State Colleges. The complaint continued to name as defendants the President and the Director of Admissions of the Academy, but the name of the individual serving as the former was changed to reflect a new appointment. The motion was granted by the district court on December 23, 1981, again over defendants' opposition.

A bench trial was conducted before the district judge starting on January 19, 1982. The trial proceeded for 23 days during the

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period from January to July 1982. After being recessed for nearly a year, the trial resumed in June of 1983, concluding within three more days. On March 21, 1984, the district court issued a memorandum of decision holding that the defendants had intentionally discriminated against women prior to June 1976 by maintaining a single-sex admissions policy, and thereafter, by their acts and omissions in the recruitment and admissions practices and procedures at the Academy. The court found that the effects of such discrimination still remained.

On May 22, 1984, the district court entered a judgment and order permanently enjoining defendants from discriminating on the basis of sex in the student recruitment and admissions processes at the Academy. Defendants were ordered to file a plan to eliminate the effects of their unlawful discrimination "in a swift and efficient manner." Defendants were also to submit a procedure for reviewing all rejected applications of women for the classes graduating from 1983 to 1987 in order to identify those rejected because of defendants' unlawful discriminatory practices. The above plans and procedures...

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