Green v. Dumke

• Decision Date: 18 June 1973
• Docket Number: No. 71-1260.,71-1260.
• Citation: 480 F.2d 624
• Parties: Zack GREEN, Plaintiff-Appellee, v. Glenn DUMKE, Chancellor, California State Colleges, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

480 F.2d 624 (1973)

Zack GREEN, Plaintiff-Appellee, v. Glenn DUMKE, Chancellor, California State Colleges, et al., Defendants-Appellants.

No. 71-1260.

United States Court of Appeals, Ninth Circuit.

June 18, 1973.

COPYRIGHT MATERIAL OMITTED

Edward Belasco, Deputy Atty. Gen. (argued), Jeffrey C. Freedman, Deputy Atty. Gen., Los Angeles, Cal., for defendants-appellants.

Ernest L. Aubry (argued), Ralph M. Segura, Errol J. Gordon, of Western Center on Law and Poverty, Los Angeles, Cal., for plaintiff-appellee.

Before MERRILL, HUFSTEDLER and CHOY, Circuit Judges.

OPINION

HUFSTEDLER, Circuit Judge:

Green brought this civil rights action against the College and the named College Administrators¹ (hereafter collectively termed the "College"), claiming that the College's action in finding him ineligible for federal financial benefits deprived him of rights secured by the Fifth and Fourteenth Amendments for which he was entitled to declaratory and injunctive relief. Green lost federal grants and loans when the College determined that he was disqualified from receiving student benefits by his conduct on campus under the terms of section 504(a) of the 1968 Federal Higher Education Amendments (20 U.S.C. § 1060 (a)).² The district court held that the College has misconstrued section 1060(a), and that the hearing, which resulted in disqualification, did not satisfy due process. The district court granted Green's motion for summary judgment. On appeal the College contends (1) that the district court did not have subject matter jurisdiction; (2) that the district court misconstrued section 1060(a) to require specific intent; and (3) that the evidence adduced at the hearing adequately supported the College's decision.

This action grows out of a turbulent student meeting held on May 9, 1969, in the cafeteria of Mt. San Antonio College. Students were excused from class to permit them to debate the allocation of student funds to the athletic department and to the Black Student Union. The budgetary issue was an outcrop of racial tensions on the campus, and the atmosphere of the debate was volatile. A student chairman was selected to establish orderly access to the microphone. Green had been previously allocated microphone time to express the views of the Black Student Union. After the chairman recognized Green and as he approached the microphone, one of the students, Stute, who was waiting his turn, yelled "Don't let that nigger speak." The audience reacted with jostlings, shouting, and exchanges of obscenities and racial epithets. Green immediately responded by leaving the platform and by taking several swings at Stute. Fist fights then broke out throughout the hall and spilled over to adjoining areas. The meeting was stopped, and classes were canceled for the rest of the day. Green was later convicted in a court of record of battery for striking Stute.

Green transferred from Mt. San Antonio College to California Polytechnic College. On August 27, 1969, the College told him that he had been awarded $2400 in federal aid for the 1969-1970 academic year.³ A month later, the Dean of Students notified him that the Dean had decided that the incident at Mt. San Antonio disqualified him from federal assistance under section 1060(a). A perfunctory hearing was held confirming the Dean's conclusion.

Green commenced this action pleading federal jurisdiction, inter alia, under 42 U.S.C. § 1983⁴ combined with 28 U.S.C. § 1343.⁵ While retaining jurisdiction, the district court ordered the College to conduct a new hearing. With a retired judge appointed by the College acting as hearing officer, the new hearing was held on August 13, 1970. The hearing officer found that Green had been convicted for battery after the effective date of section 1060(a), that the battery involved the use of force, that the battery "prevented officials or students of such institution from engaging in their duties and pursuing their studies," and that such a crime "was of a serious nature and contributed to a substantial disruption . . . at Mount San Antonio College." The College concluded that Green was ineligible for federal benefits.

Green filed a complete transcript of the second hearing and moved for summary judgment. The district court decided that the College had acted under color of law, that Green had been denied due process because there was no evidence before the hearing officer to prove that Green's battery was of a "serious nature" within the meaning of section 1060(a) or to prove that Green had the requisite intent to prevent officials or students from engaging in their duties or pursuing their studies.

I.

The College argues that it is immune from 42 U.S.C. § 1983 because, in conducting the hearing, the College was acting pursuant to federal law and not under color of state law. The College is too modest about its role and too restrictive in its reading of the section 1983 script.

In enacting section 1060(a) and in providing federal aid to state college students, Congress did not reduce the College to the status of a federal hireling. The College was a participant in a federal-state cooperative venture of a kind that is increasingly familiar. Its role is analogous to that of state agencies administering other kinds of federally funded or cooperatively funded, social programs such as the Aid to Families With Dependent Children (AFDC) program. The Supreme Court has repeatedly found federal jurisdiction for challenges to the activities of state agencies administering federal programs under 42 U.S.C. § 1983 combined with 28 U.S.C. § 1343. It has not mattered a jurisdictional whit that the agency was enforcing federal statutes, as well as pursuing state ends. (E.g., Carter v. Stanton (1972) 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569; Townsend v. Swank (1971) 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed. 448; Dandridge v. Williams (1970) 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491; Rosado v. Wyman (1970) 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442; Goldberg v. Kelly (1970) 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287; King v. Smith (1968) 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118.⁶

The "under color of law" component of section 1983 is the equivalent of the state action requirement of the Fourteenth Amendment (United States v. Price (1966) 383 U.S. 787, 794-795 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267) and it carries the same meaning as its criminal counterpart, 18 U.S.C. § 242. E.g., Adickes v. S. H. Kress & Co. (1970) 398 U. S. 144, 152 n. 7, 90 S.Ct. 1598, 26 L.Ed. 2d 142; United States v. Price, supra at 794-795 n. 7, 86 S.Ct. 1152; Monroe v. Pape (1961) 365 U.S. 167, 185, 212, 81 S.Ct. 473, 5 L.Ed.2d 492. Recognizing these concepts as expansive,⁷ the Supreme Court has persistently refused to permit them to be shriveled by technicalities drawn from private law doctrines or to be emasculated by unnatural, artificial interpretations.⁸

The College is a state institution. The state clothed it with authority to act; its officers and agents derived their authority to conduct the hearing from the College. "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law." (United States v. Classic, supra, 313 U.S. at 325-326, 61 S.Ct. at 1043; see also Monroe v. Pape, supra, 365 U.S. at 184, 81 S.Ct. 473; Williams v. United States (1951) 341 U.S. 97, 99, 71 S.Ct. 576, 95 L.Ed. 774; Screws v. United States (1945) 325 U.S. 91, 109, 112-113, 65 S.Ct. 1031, 89 L.Ed. 1495.)

Kletschka v. Driver (2d Cir. 1969) 411 F.2d 436, 447-449, is closely in point. A Veterans Administration doctor brought a civil rights action against federal and state officials seeking redress for interference with his employment rights. He alleged that Veterans Administration officials conspired with a state medical school to cause his transfer from the veterans' hospital and his loss of a research grant. The court reversed summary judgment that had been awarded in favor of the state defendants, holding that the state officials acted under color of law. "When the violation is the joint product of the exercise of a State power and a non-State power then the test under the Fourteenth Amendment and § 1983 is whether the state or its officials played a `significant' role in the result. See Burton v. Wilmington Parking Authority, 365 U.S. 715, 722 81 S.Ct. 856, 6 L.Ed.2d 45. . . ." (411 F.2d at 449.)

The actions of state officials caused Green's loss, and they acted under color of state law. Federal jurisdiction was appropriately laid under section 1983 and its jurisdictional counterpart, 28 U. S.C. § 1343(3). (Cf. King v. Smith, supra, 392 U.S. at 312 n. 3, 88 S.Ct. 2128; Wong v. Hayakawa (9th Cir. 1972) 464 F.2d 1282.)⁹

II.

The College next contends that the district court misconstrued section 1060(a) when it decided that Green was not ineligible for benefits unless he committed the battery for the purpose of disrupting campus activities. The statute provides that disqualification results from a determination by the College that a person "has been convicted . . . of any crime . . . which involved the use of . . . force . . . to prevent officials or students in such institutions from engaging in their duties or pursuing their studies, and that such crime was of a serious nature and contributed to a substantial disruption of the administration of the institution with respect to which such crime was committed. . . ." (Emphasis added.)

The College argues that the statute contains no provision for the specific intent element and that ineligibility is satisfied by proof that Green was convicted of battery, a crime involving force, and that his battery contributed to the disruption of the institution. The College's interpretation is unacceptable because it reads the italicized language out of the statute. The purpose of the statute, read contextually, was to withdraw federal aid...