Cannon v. University of Chicago, 75 C 2402.

Decision Date15 January 1976
Docket NumberNo. 75 C 2402.,75 C 2402.
PartiesGeraldine G. CANNON, Plaintiff, v. UNIVERSITY OF CHICAGO et al., Defendants.
CourtU.S. District Court — Northern District of Illinois

William E. Snyder, John M. Cannon and James A. Burstein, Chadwell, Kayser, Ruggles, McGee & Hastings, Chicago, Ill., for plaintiff.

Stuart Bernstein, Michael F. Rosenblum and Susan S. Sher, Mayer, Brown & Platt, Samuel K. Skinner, U. S. Atty., Chicago, Ill., for defendants.

MEMORANDUM OF DECISION

JULIUS J. HOFFMAN, Senior District Judge.

This is an action for declaratory, injunctive and monetary relief brought by Geraldine G. Cannon against the University of Chicago, the admissions officers of the University's Pritzker School of Medicine, the Secretary of Health, Education and Welfare and the Regional Director of HEW's Office of Civil Rights. Alleging that she was denied admission to the entering class of the Pritzker School of Medicine on the basis of her age, sex and lack of an advanced degree. The plaintiff seeks redress under the Civil Rights Act of 1871, 42 U.S.C. § 1983, the Civil Rights Act of 1964, 42 U.S.C. §§ 2000c-6 and 2000c-8, as amended by Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., the Public Health Service Act, 42 U.S.C. § 295h-9, and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 626(c). The jurisdiction of the court is invoked pursuant to 28 U.S.C. §§ 1331, 1343(3), 1343(4), 1345, 1346, 2201 and 2202, as well as 5 U.S.C. § 1009(a) and (b).

In response to plaintiff's allegations, the University of Chicago and the admissions officers of its medical school have moved to dismiss the amended complaint for lack of jurisdiction over the subject matter and for failure to state a claim upon which relief can be granted, or, in the alternative, for summary judgment.

To be actionable under 42 U.S.C. § 1983, the discriminatory conduct of an otherwise private institution must be affirmatively supported by state action. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Lucas v. Wisconsin Electric Power Co., 466 F.2d 638 (7th Cir. 1972), cert. denied, 409 U.S. 1114, 93 S.Ct. 928, 34 L.Ed.2d 696 (1973).

In an attempt to establish the grounds for the requisite state action, the plaintiff alleges only that the University of Chicago, including the Pritzker School of Medicine, receives state and federal financial assistance and is conducted under Illinois law, custom and usage. It is settled, however, that the state must be involved in the conduct that caused the injury, Powe v. Miles, 407 F.2d 73 (2d Cir. 1968), and neither the receipt of state or federal financial assistance, nor the existence of a detailed scheme of state regulation, will be sufficient to bring defendants' actions within the purview of 42 U.S.C. § 1983 in the absence of a showing that the state significantly participated in the decision to deny plaintiff admission to the medical school. Cohen v. Illinois Institute of Technology, 524 F.2d 818 (7th Cir. 1975); Doe v. Bellin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973).

The present action is also brought under Title IX of the Education Amendments of 1972, which provides, in part, that:

"no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance . . ." 20 U.S.C. § 1681.

The statute also sets forth a scheme of administrative enforcement which, upon filing of a complaint with the Department of Health, Education and Welfare, requires investigation, encourages voluntary compliance, provides an opportunity for an administrative hearing and authorizes termination of financial assistance to an institution that has been found to discriminate in violation of the Act. 20 U.S.C. § 1682. And, while the statute provides for judicial review of agency action, it does not authorize a private right of action against the University.

The plaintiff, moreover, appears to misconceive the nature of the remedy available under the statute. For even if the court were to assume that the unavailability of administrative remedies would entitle plaintiff to bring a private action to enforce the statute, as suggested in Bossier Parish School Board v. Lemon, 370 F.2d 847 (5th Cir. 1967), it is clear that an action to review the University's decision to deny plaintiff admission to its medical school, which also seeks money damages is beyond the scope of the statute. To permit such an expansion of the statutory coverage, which is neither authorized nor consistent with Congressional intent, is unwarranted. National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974).

An additional basis for this action is alleged to be the Public Health Service Act, 42 U.S.C. § 295h-9. Although plaintiff concedes that the statute does not provide a specific enforcement procedure under which a private plaintiff may bring an action, she asserts that the cases of Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), and Bossier Parish School Board v. Lemon, supra, establish her right to sue as a third-party beneficiary of the contractual assurances against discrimination on the basis of sex given by the University to the Department of Health, Education and Welfare, as a condition for receiving federal financial assistance. Neither of the cases cited, however, support that position.

The third-party beneficiary theory was not raised in Lau, and while it was utilized in Bossier to confer standing to Negro school children who were refused permission to attend integrated public schools, the court stated that:

". . . the key point is that here individuals are suing to enforce a national constitutional right. . . . Contract rights are not involved." 370 F.2d at 851.

The final basis upon which this action is brought involves the Age Discrimination in Employment Act of 1967 which provides, in part, that:

"it shall be unlawful for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of such individual's age . ." 29 U.S.C. § 623(b).

The plaintiff contends that the University functions as an employment agency, and is therefore subject to the statutory prohibitions. But the statute defines "employment...

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    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
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    ...in the district court; that court indicated in its Opinion that monetary relief would be inappropriate. Cannon v. University of Chicago, 406 F.Supp. 1257, 1259 (N.D.Ill.1976). The Seventh Circuit affirmed without comment on the district court's distinction among the remedies sought. Cannon ......
  • Cannon v. University of Chicago
    • United States
    • United States Supreme Court
    • May 14, 1979
    ...and because it concluded that no private remedy should be inferred, the District Court granted the respondents' motions to dismiss. 406 F.Supp. 1257, 1259. The Court of Appeals agreed that the statute did not contain an implied private remedy. Noting that § 902 of Title IX establishes a pro......
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    • January 23, 1980
    ...that the sole remedy available to the plaintiff was a cut-off of federal funds to the offending agency. Cannon v. University of Chicago, 406 F.Supp. 1257, 1259 (N.D.Ill.1976), aff'd, 559 F.2d 1063 (7th Cir. 1976), aff'd on rehearing, 559 F.2d 1077 (7th Cir. 1977), rev'd, 441 U.S. 677, 99 S.......
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    ...(D.Utah 1978). Similarly, in Cannon the plaintiff's claim for damages for violation of Title IX was dismissed by the District Court, 406 F.Supp. 1257, 1259, but there is no indication that the Supreme Court dealt with this issue in its decision. 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 T......
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