Cohen v. Illinois Institute of Technology
| Citation | 524 F.2d 818 |
| Decision Date | 26 November 1975 |
| Docket Number | No. 74-1930,74-1930 |
| Parties | 11 Fair Empl.Prac.Cas. 1448, 11 Fair Empl.Prac.Cas. 659, 10 Empl. Prac. Dec. P 10,465 Helen A. COHEN, Plaintiff-Appellant, v. ILLINOIS INSTITUTE OF TECHNOLOGY, an Illinois not-for-profit Corporation et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Gerald Rose, Chicago, Ill., for plaintiff-appellant.
E. Allan Kovar, Chicago, Ill., for defendants-appellees.
Before McALLISTER, Senior Circuit Judge, * and SWYGERT and STEVENS, Circuit Judges.
This is the first case in which this circuit has been asked to decide whether the executives of a private university, which allegedly discriminated against women in the appointment, retention and compensation of its faculty, were acting under color of state law within the meaning of 42 U.S.C. § 1983 1 or were participating in a conspiracy prohibited by § 1985(3). 2 The appeal is from an order dismissing a complaint alleging detailed facts which we assume to be true.
For five years, commencing in the fall of 1966, plaintiff served as an Assistant Professor in the Department of Psychology and Education of the Illinois Institute of Technology ("I.I.T."). In March of 1969, and in 1970 and 1971 as well, the head of her department recommended that she be promoted to Associate Professor, a tenured position. Every year this recommendation was denied for no stated reason. Plaintiff alleges that each "denial was in fact based solely on Plaintiff's being a woman."
In March of 1971, defendant Rettaliata, the President of I.I.T., advised Dr. Cohen that she would not be offered a tenured appointment, and therefore the ensuing year would be her last. Unwilling to continue in an untenured status, plaintiff resigned and requested a statement of reasons for refusing to grant her tenure. The chairman of her department responded that he "frankly did not know," and reiterated his own belief, and that of her faculty colleagues, that plaintiff was indeed entitled to tenure on the basis of her fine record with the Institute. A further request for a statement of reasons appears to have gone unanswered.
In August of 1971, plaintiff filed a complaint with the Department of Health, Education and Welfare. After an investigation, the Regional Civil Rights Director reported that there was reasonable cause to conclude "that Dr. Cohen was discriminated against because of her sex by the Institute when it paid her less than the average salary of similarly situated males," and also cause to believe that she was "terminated in part because of her sex."
Plaintiff commenced this action against I.I.T., its former President, its Academic Vice President, and the Chairman of its Board of Trustees in May of 1974. She has alleged three alternative theories of recovery, under § 1983, under § 1985(3), and under the equal protection guarantees contained in the Illinois Constitution. 3 Because of the timing of the alleged discrimination, she has no remedy under either Title VII of the Federal Civil Rights Act of 1964, as amended, 4 or the Illinois Fair Employment Practices Act, 5 although the victim of comparable discrimination occurring today would clearly have a remedy under either of those statutes.
The district court held that Count I of the complaint was insufficient because I.I.T. is not a state institution and the complaint failed to allege state involvement in any of the discriminatory personnel practices; Count II was insufficient both because of the failure to allege state action and also because the alleged determination of policy by I.I.T. and its executives was not a "conspiracy" within the meaning of § 1985(3). Since there was no independent basis for federal jurisdiction of Count III, it was dismissed without consideration of its sufficiency. 6
As this case comes to us, we must assume that defendants have discriminated against plaintiff solely because she is a female and, further, that there is no rational basis for a classification of faculty members by sex. If the conduct of the defendants is "state action," they have violated Dr. Cohen's constitutionally protected right to the equal protection of the laws. 7 On the other hand, unless the requisite state involvement has been alleged, the complaint does not state a claim actionable under § 1983. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S.Ct. 1965, 32 L.Ed.2d 627.
To support the proposition that defendants acted under color of state law, plaintiff has made detailed allegations which may be considered in four parts: first, by using the word "Illinois" in its name, I.I.T. has, in effect, held itself out as a state instrumentality; 8 second, I.I.T. has received financial and other support from the state; 9 third, I.I.T. is pervasively regulated by the state; 10 and fourth, it has failed to take affirmative action to prevent I.I.T. from using gender as a criterion for faculty compensation and promotion. 11 The complaint, however, contains no allegation that any State instrumentality has affirmatively supported or expressly approved any discriminatory act or policy, or even had actual knowledge of any such discrimination.
The facts that I.I.T. was chartered by the State and includes the word "Illinois" in its title do not lend any support to the claim that I.I.T. acts under color of state law. Every private corporation, whether profitable or charitable, is chartered by the States; unless the charter contains a special authorization or directive to engage in the challenged conduct, the fact that it is granted by the State is of no significance. 12 The use of the State's name gives rise to an appearance of State involvement in I.I.T.'s activities, but, again, unless the appearance of state support either facilitates the activity in question, 13 or provides evidence that the institution is, in fact, a State instrumentality, 14 it is of no relevance. Plaintiff has not alleged that either the charter or the name of I.I.T. has any connection with the school's personnel policies.
The State of Illinois provides support for I.I.T. in various ways. The Institute may benefit from the State's eminent domain powers; 15 its students are allowed to use the facilities of various state agencies in certain study programs; its students receive financial support in the form of loan guarantees and scholarships; and, under the State Grant Program, funds are provided directly to the school. 16 At most, however, the funds contributed by the State represent only a small fraction of the cost of educating the students for whom the grants are paid. 17
Two different conclusions may be drawn from the allegations relating to the State's support of I.I.T. First, it is plain that the school is not so heavily dependent on the State as to be considered the equivalent of a public university for all purposes and in all its activities. 18 It would dramatically enlarge the state action concept to conclude that these facts are sufficient to require a complete surrender of a university's private character. 19 On the other hand, it is equally clear that the State's support of I.I.T. is sufficiently significant to require a finding of state action if that support has furthered the specific policies or conduct under attack. Again, however, there is no allegation in the complaint that the various forms of assistance given to I.I.T., or to its students, by the State, have had any impact whatsoever on the ability of Dr. Cohen, or any other member of her sex, to be treated impartially by the administration of the Institute. The State has lent significant support to I.I.T.; it is not, however, alleged to have lent any support to any act of discrimination. 20
The same analysis is applicable to the allegations describing the State's comprehensive regulation of the Institute. The regulation encompasses a wide variety of matters, from physical plant to course content and faculty qualifications. It is settled, however, that the mere existence of detailed regulation of a private entity does not make every act, or even every regulated act, of the private firm, the action of the State. 21 Unless it is alleged that the regulatory agency has encouraged the practice in question, or at least given its affirmative approval to the practice, the fact that a business or an institution is subject to regulation is not of decisive importance. 22
Plaintiff's extensive allegations describing the State's many controls over I.I.T. need not be separately dicussed; for in none is there any suggestion that the State of Illinois, or any agent or agency of the State, has affirmatively encouraged or approved faculty employment discrimination on the basis of gender. 23
Finally, we are not persuaded that the omission of any affirmative prohibition against sex discrimination, even against the background of detailed State regulation of the Institute, is tantamount to express State approval of the objectionable policy. The holding of the Supreme Court in Moose Lodge No. 107 v. Irvis, supra, requires us to reject such an argument. For it is abundantly clear that the State of Pennsylvania had ample power to revoke the liquor license of Lodge No. 107, and further that the State could not constitutionally endorse the Lodge's discriminatory practices. If a State's mere failure to prohibit could be equated with express approval, the Moose Lodge case would have been decided differently. 24
The facts set forth in the complaint do not support the conclusion that defendants acted under color of state law in their discrimination against plaintiff. Nevertheless, plaintiff argues that since she has alleged the necessary ultimate conclusion in the language of the statute, the complaint should not be dismissed before she has completed discovery which may reveal some nexus between the State of Illinois and defendants' wrongful conduct....
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