851 F.2d 561 (2nd Cir. 1988), 690, Albert v. Carovano

Docket Nº:690, Docket 87-7111.
Citation:851 F.2d 561
Party Name: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, Plaintiffs-Appellants, v. J. Martin CAROVANO, President of Hamilton College; Jane L. Jervis, Dean of Students at Hamilton College; and Hamilton Colle
Case Date:June 28, 1988
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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851 F.2d 561 (2nd Cir. 1988)

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, Plaintiffs-Appellants,

v.

J. Martin CAROVANO, President of Hamilton College; Jane L.

Jervis, Dean of Students at Hamilton College; and

Hamilton College, Defendants-Appellees.

No. 690, Docket 87-7111.

United States Court of Appeals, Second Circuit

June 28, 1988

Argued Jan. 28, 1988.

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

Edward R. Conan, Syracuse, N.Y. (John A. Beach, Jonathan B. Fellows, Bond, Schoeneck & King, Syracuse, N.Y., of counsel), for defendants-appellees.

Eugene D. Gulland, Elizabeth H. Gorman, Covington & Burling, Washington, D.C., Sheldon Elliot Steinbach, Gen. Counsel, American Council on Educ., Washington, D.C., for amicus curiae American Council on Educ.

David M. Lascell, Marion Blankopf, Nixon, Hargrave, Devans & Doyle, Rochester, N.Y., Sandra McMullan, Nat. Institute of Independent Colleges and Universities, Washington, D.C., Elizabeth Van Nest, Com'n on Independent Colleges and Universities, Albany, N.Y., for amici curiae Nat. Institute of Independent Colleges and Universities and Com'n on Independent Colleges and Universities.

Robert S. Smith, Stuart M. Cobert, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, John Mason Harding, Gen. Counsel, Columbia University, New York City, Walter J. Relihan, Jr., Gen. Counsel, Cornell University, Ithaca, N.Y., S. Andrew Schaffer, Vice President and Gen. Counsel, New York University, New York City, Dorothy K. Robinson, Gen. Counsel, Yale University, New Haven, Conn., for amici curiae Columbia University, Cornell University, New York University and Yale University.

Before OAKES, MESKILL, NEWMAN, KEARSE, WINTER, PRATT, MINER, ALTIMARI and MAHONEY, Circuit Judges.

ON REHEARING IN BANC

WINTER, Circuit Judge, with whom MESKILL, JON O. NEWMAN, KEARSE, PRATT, MINER, ALTIMARI and MAHONEY, Circuit Judges, join:

This appeal presents the question whether the disciplinary actions of a private college, by virtue of a state statute requiring colleges to adopt disciplinary rules and to file them with the state, constitute state action under the Constitution and 42 U.S.C. Sec. 1983 (1982). The appeal also requires us to address and to clarify the pleading requirements for claims brought under 42 U.S.C. Sec. 1981 (1982). Appellants are students who were suspended by Hamilton College on November 14, 1986 when they refused to end a three-day occupation of Hamilton's main administration building. On November 26, 1986, seeking injunctive

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relief under Section 1983, the suspended students brought this action in the Northern District of New York. Named as defendants were the College; its President, J. Martin Carovano; and its Dean of Students, Jane L. Jervis. The students' Section 1983 claim asserted that the College was a state actor because it had adopted disciplinary rules pursuant to N.Y.Educ.Law Sec. 6450 (McKinney 1985), the so-called Henderson Act, and had denied them due process when it suspended them pursuant to those rules. That Act directs all colleges and universities in the State of New York to adopt and to file with the state "rules and regulations for the maintenance of public order" that include as possible sanctions "suspension, expulsion or other appropriate disciplinary action." For their Section 1981 claim, appellants alleged that "[t]he defendants are selectively enforcing the College rules on student conduct against plaintiffs," among other reasons, "because of their criticisms of ... prejudice[ ] at Hamilton, ... and because they are black, Latin or gay; supportive of the rights of blacks, Latins and gays and without old family ties to Hamilton." Complaint p 35.

Appellants sought a preliminary injunction against their suspensions, and appellees moved to dismiss the complaint. After some hurried discovery, the district court on December 23 held an evidentiary hearing on the issue of state action. At the end of that hearing, Judge Cholakis, treating appellants' Section 1981 claim as arising under Section 1983, denied appellants' request for a preliminary injunction and dismissed their complaint on the ground that state action was lacking. The students appealed, and a divided panel of this court reversed. Albert v. Carovano, 824 F.2d 1333, modified on rehearing, 839 F.2d 871 (2d Cir.1987). We ordered reconsideration in banc upon appellees' suggestion, and we now vacate the panel opinion. We affirm the dismissal of the Section 1983 claim, but remand the Section 1981 claim to allow appellants an opportunity to replead it.

BACKGROUND

Chartered in 1812, Hamilton College is a privately-endowed institution of higher learning located in Clinton, New York. Until 1969, it prescribed a concise code of conduct for its students. The College stated only that "Conduct becoming a gentleman is expected of Hamilton men at all times," and that "It is assumed that undergraduates will understand what constitutes gentlemanly conduct without expressed rules to cover every occasion." The College's Judiciary Board limited suspensions to "extremely serious misconduct."

The College altered its code of conduct in 1969, however, after New York enacted the Henderson Act. That Act was a response to campus unrest in the 1960's, and as noted, requires colleges both to adopt rules concerning the maintenance of public order on campus and to file those rules with the state. 1 Colleges that fail to comply are not eligible to receive state aid.

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The language of the Henderson Act requires only that rules adopted and filed pursuant to the Act provide "suspension, expulsion or other appropriate disciplinary action" as penalties for violation of those rules. Beyond this the Act is silent. Colleges are free to define breaches of public order however they wish, and they need not resort to a particular penalty in any particular case. Finally, nothing in the language of Section 6450 requires colleges to enforce the regulations filed pursuant to that Section at all. As we have previously observed, the terms of the Act leave "[o]ne wonder[ing] whether rules and regulations consisting solely of the statement that any individual guilty of a transgression against the public order of the campus shall be required to give the Dean of the College a rose and a peppercorn on Midsummer's Day would satisfy the literal command of the statute in all respects." Coleman v. Wagner College, 429 F.2d 1120, 1124 (2d Cir.1970).

To comply with Section 6450, the Trustees of Hamilton College adopted and filed a set of rules styled "Freedom of Expression/Maintenance of Public Order at Hamilton College." Today these rules are incorporated in Hamilton's A Guide to the Policies and Procedures of Hamilton College (1986). Included as examples of "[d]isruptions of public order" are disruptive noise, violence or threats, the destruction of college property, and the disruptive "physical possession of a building." The rules set forth the various tactics and procedures (ranging from "constructive discussion" to court orders) that Hamilton's President may invoke at his or her discretion in response to disturbances. In addition, the rules state:

Penalties for violations of the provisions of this Section of "Student Conduct" [referring to a section of the Guide ] (which penalties shall be in addition to any penalty provided for in the New York state penal law or any other New York or federal law to which a violator may be subject) shall include the following:

* * *

* * *

  1. For students the procedures shall be those set forth under "Student Discipline," [a subsection of "Student Conduct"], and may result in disciplinary action of the most severe kind, including suspension or expulsion;

* * *

* * *

Elsewhere in the Guide, the subsection entitled "Student Discipline" (which was not filed with the state) explains in great detail the processes by which Hamilton's students may be disciplined. Most of this detail is devoted to the structure and conduct of the school's "Judiciary Board," which "has jurisdiction over infractions by students of general standards of conduct." At the same time, however, the Guide suggests that Hamilton's President may dispense with procedures outlined in the Guide. It thus states, "The right of the President to decide finally on any student disciplinary matter is not precluded by the provisions outlined below."

According to the complaint and the affidavit of appellant Gur Melamede, the dispute at issue originated in a series of incidents on the Hamilton campus during the academic year 1985-86. Protests developed against apartheid and against Hamilton College's investments in firms doing business in South Africa. According to appellants, some black women students who participated in the protests were the victims of racial insults, and one received several threats on her life. These insults and threats were aggravated in the students' eyes by Hamilton College's alleged failure to investigate the incidents, to establish an African-American Studies program, and to divest itself of investments in firms doing business in South Africa.

The College apparently hoped to reduce tensions by scheduling a series of public discussions of prejudice. These efforts backfired. On November 7, 1986, the College held an alumni symposium on the topic

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of discrimination. Of the four symposium panelists, only one was female, and she was not herself a graduate of Hamilton but rather the wife of an...

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