Albert v. Carovano, 928

Citation824 F.2d 1333
Decision Date21 July 1987
Docket NumberNo. 928,D,928
Parties41 Ed. Law Rep. 31 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, Appellants, v. J. Martin CAROVANO, President of Hamilton College; Jane L. Jervis, Dean of Students at Hamilton College; and Hamilton College, Appellees. ocket 87-7111.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Michael Krinsky, New York City (Terry Gross, Nicholas E. Poser, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., of counsel), for appellants.

Edward R. Conan, Bond, Schoeneck & King, Syracuse, for appellees.

Before OAKES and WINTER, Circuit Judges, and METZNER, District judge. *

OAKES, Circuit Judge:

On November 14, 1986, J. Martin Carovano, president of Hamilton College, a private institution in Clinton, New York, suspended a group of twelve students for engaging in a three-day sit-in of the college's administration building following their unsuccessful attempt to meet with Carovano to discuss the college's alleged insensitivity to various racial and gender issues. The suspended students filed suit in the United States District Court for the Northern District of New York against Carovano, the college, and the dean of students, Jane Jervis. The suit sought equitable relief on the basis of several causes of action, including one premised on the college's alleged failure to satisfy the Due Process clause of the Fourteenth Amendment and another on its alleged discrimination against the students. In an opinion delivered from the bench, the court denied the students' request for a preliminary injunction and dismissed their complaint, finding that their claims did not meet the "under color of" state law requirement of 42 U.S.C. Sec. 1983.

On appeal, the students argue that their suspensions amounted to action under color of state law because the college's rules for "Maintenance of Public Order" were promulgated by the faculty in 1969 for the express purpose of complying with New York Education Law Sec. 6450, which mandates that colleges adopt and file with the State a set of disciplinary rules that must include the possibility of suspension for breaches of public order. Under any one of several theories of color of state law, appellants argue, their claims meet the requirements of a section 1983 cause of action.

In essence, this case presents us with a veritable rerun of Coleman v. Wagner College, 429 F.2d 1120 (2d Cir.1970), in which we held that under certain circumstances the State of New York's involvement in college discipline pursuant to section 6450 might be sufficient to allow us to classify as "state action" certain disciplinary decisions made by private colleges. The seventeen years that have passed since Coleman have seen significant doctrinal developments in the concepts of "state action" and "under color of state law"--not the least of which is that the concepts are not synonymous, in that while state action is action under color of law, conduct under color of law is not necessarily state action, Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n. 18, 102 S.Ct. 2744, 2752-53 n. 18, 73 L.Ed.2d 482 (1982). Nevertheless, we feel that Coleman has retained its validity and directly governs the issues raised in this case. Accordingly, we reverse the district court's dismissal of the students' claims, and remand for further proceedings.

FACTS

The events leading up to the appellants' suspension on November 14, 1986, are disputed. According to the "declaration" of appellant Melamede, the sit-in at Buttrick Hall was spurred by what the students saw as the college's inadequate response to several racist and sexist incidents on campus the previous year. These incidents, including slurs against black women students and repeated death threats against one of the appellants, were exacerbated in the students' minds by the college's policies regarding divestment of South African holdings and the establishment of an African-American Studies program. Apparently perceiving that the college as a whole would benefit from improved dialogue on these issues, the college began the 1986-87 school year by holding an alumni symposium on discrimination on November 7, 1986, and a debate on divestment on November 10. These programs backfired, however, as a group of students felt that remarks by an alumnus at the symposium and by President Carovano at the debate merely highlighted the Hamilton administration's insensitivity to racial and gender issues.

In the two days following the debate, members of several student organizations At 8:30 the next morning Dean Jervis announced to the group that pursuant to the college's rules on maintenance of public order, Buttrick had been declared off limits to students and that the college would seek a court injunction ordering them to leave. The students chose to remain. At about 1:20 p.m., the students were served with a temporary restraining order obtained by the college from the Supreme Court of New York. The students nonetheless remained in Buttrick (apparently believing that they were not in violation of the order). 2 Dean Jervis returned and again instructed the students to leave. She stated that letters warning of disciplinary action were being sent to students and their parents. Dean Jervis also maintains that she informed the students that Carovano would meet with them, but only if they left the building. Four of the appellants, however, state that they were unaware of this possibility. Some twenty to thirty students again camped out in Buttrick overnight.

                agreed that a group of students would attempt to meet with Carovano to discuss his remarks at the debate, the possibility of another symposium on prejudice, and the African-American study program.  On Wednesday, November 12, 1986, approximately fifty to sixty students and faculty went to Buttrick Hall, where Carovano has his office. 1   They found the building essentially unoccupied because Carovano was out of town and Dean Jervis had sent the staff home early in anticipation of the demonstration.  The students and faculty then congregated in the hallway of the building, where they sang songs and, at some point, decided to remain in the building until they were allowed to meet with Carovano.  Despite Dean Jervis's request that they leave, the students stayed past the building's 4:30 closing time.  About twenty to forty students stayed overnight in Buttrick, coming and going throughout the night.  President Carovano returned to Clinton at around 9:00 p.m. and was apprised by Dean Jervis of the situation at Buttrick
                

At about 11:00 a.m. on Friday Dean Jervis returned to Buttrick and read a notice stating that the students were violating the court order, that Hamilton would initiate contempt of court and possibly trespass charges against the students, and that students who did not leave immediately would be suspended. After some discussion, several students left. At 1:00 p.m., after meeting with Carovano, Jervis went again to Buttrick and informed the remaining students--the twelve appellants--that they were immediately suspended for the remainder of the academic year. Letters to this effect were sent to the students and their parents. The appellants nonetheless remained in the building until 7:00 p.m. After they left Buttrick, two professors met with Jervis and arranged for some of the students to meet with Carovano on the following Monday.

On Monday morning, November 17, Carovano revised the suspension so it would become effective on December 20, 1986, the final day of the fall semester. On that same day, by a vote of 96 to 24, with one abstention, the faculty adopted a resolution calling for the suspensions to be withdrawn in order to allow the students to be disciplined according to the procedures set out in the student handbook, discussed below. No action was taken on this resolution, but Carovano did write to each of the appellants to suggest that if there were "extraordinary circumstances" that made the suspension unjust in a particular case, the student could submit a written statement In Carovano's affidavit, he states that his decision to suspend the appellants "was based solely upon the conduct of the [appellants] and the disciplinary options which were available" to him. He bases his disciplinary authority on the college's A Guide to the Policies and Procedures of Hamilton College (1986), which states in its discussion of student discipline that "[t]he right of the President to decide finally on any student disciplinary matter is not precluded by the provisions outlined below." The "provisions" referred to in this statement present a detailed outline of the college's "judicial system," including a description of the student-faculty Judiciary Board and the procedures by which the Board is to operate. 3 The Guide expressly states that "certain minor infractions" may be adjudicated by the dean of students in an administrative proceeding; other infractions are to be "presented to the Judiciary Board for disposition."

for consideration by the trustees at their December 5-6 meeting. Only one student responded, and at no time did Carovano further modify the suspensions.

Another section of the Guide, entitled "Freedom of Expression/Maintenance of Public Order at Hamilton College," sets out additional rules, regulations, and procedures governing conduct at Hamilton. This section defines "disruptions of public order" as including "physical possession of a building which denies the right of authorized persons to enter and to work in it" and "undue noise or other interference which disrupts the carrying out of an academic or noncurricular activity of the College." This section also details specific steps to be taken by the president of the college to restore order following a disruption, 4 including the...

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