Stone v. Dartmouth College

• Decision Date: 01 March 1988
• Docket Number: Civ. No. 87-284-D.
• Citation: 682 F. Supp. 106
• Parties: Deborah STONE; Frank Reichel, III; Teresa Polenz; Hanover Review, Inc. v. DARTMOUTH COLLEGE; Dartmouth College Committee on Standards; David T. McLaughlin, in his capacity as President of Dartmouth College; Edward J. Shanahan, in his capacity as Dean of Dartmouth College; Edward Bradley, Professor, in his capacity as Chairman of the Dartmouth College Committee on Standards and as an individual; Matthew Marshall, III, in his capacity as the General Manager of the Hanover Inn, a corporation wholly owned by Dartmouth College.
• Court: U.S. District Court — District of New Hampshire

682 F. Supp. 106

Deborah STONE; Frank Reichel, III; Teresa Polenz; Hanover Review, Inc. v. DARTMOUTH COLLEGE; Dartmouth College Committee on Standards; David T. McLaughlin, in his capacity as President of Dartmouth College; Edward J. Shanahan, in his capacity as Dean of Dartmouth College; Edward Bradley, Professor, in his capacity as Chairman of the Dartmouth College Committee on Standards and as an individual; Matthew Marshall, III, in his capacity as the General Manager of the Hanover Inn, a corporation wholly owned by Dartmouth College.

Civ. No. 87-284-D.

United States District Court, D. New Hampshire.

March 1, 1988.

K. William Clauson, Hanover, N.H., David B. Rivkin, Jr., Washington, D.C., for plaintiffs.

Carol Ann Conboy, Manchester, N.H., for defendants.

ORDER

DEVINE, Chief Judge.

At approximately 3:00 a.m. on January 21, 1986, a group of students at Dartmouth College ("Dartmouth") in Hanover, New Hampshire, dismantled with sledgehammer, crowbar, and hammer several "shanties" erected on the Dartmouth Green by other students protesting Dartmouth's investment in companies doing business in South Africa. This litigation focuses on subsequent disciplinary proceedings taken by Dartmouth and the other named defendants —persons associated with the college— against the individual plaintiffs for their role in planning and physically directing the shanty destruction. At all times relevant to this action, the individual plaintiffs were students at Dartmouth and members of the editorial board of the Dartmouth Review ("Review"), a publication of plaintiff Hanover Review, Inc., which, except in name, is not associated with Dartmouth College.

Additionally at issue is action taken against plaintiff Deborah Stone and the Review in response to a "sting" operation conducted by Review members in May 1987 against the Hanover Inn ("Inn"), a business owned by Dartmouth. In an attempt to expose the Inn's alleged sale of alcoholic beverages to underage students, the Review sent underage "undercover agents" to the Inn for the purpose of ordering alcoholic beverages. The agents allegedly succeeded in being served, and, following publication of an article in the Review exposing the Inn's purported scofflaw activity, the Inn advised Stone and other Review members that they would no longer be admitted.

Plaintiffs allege that the college's disciplinary proceedings following the shanty incident and the Inn's actions following the sting operation violated rights guaranteed them by the United States Constitution, the New Hampshire Constitution, and New Hampshire common law. Based thereon, plaintiffs bring suit for damages and injunctive relief pursuant to 42 U.S.C. § 1983 and the Court's power of pendent jurisdiction. Defendants move to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P., contending that the Court lacks subject matter jurisdiction and that plaintiffs fail to state a claim upon which relief can be granted.

When faced with a motion to dismiss for lack of subject matter jurisdiction, Rule 12(b)(1), Fed.R.Civ.P., the party asserting jurisdiction has the burden to establish by competent proof that jurisdiction exists. O'Toole v. Arlington Trust Co., 681 F.2d 94, 98 (1st Cir.1982); C. Wright & A. Miller, 5 Federal Practice and Procedure hereinafter 5 Wright & Miller § 1350, at 555 (1969 and Supp.1987) (and citations therein). The district court may not make presumptions or draw argumentative inferences from the pleadings; however, the claims of the complaint are construed broadly and liberally, and all uncontroverted factual allegations are accepted as true. 5 Wright & Miller § 1350, at 551-52 (citing, e.g., Norton v. Larney, 266 U.S. 511, 515-16, 45 S.Ct. 145, 147, 69 L.Ed. 413 (1925)). Either party may use affidavits or other exhibits to support its contentions. Id. § 1350, at 549-50. In the instant case, the issues are clear, and the matter is capable of resolution without resort to oral hearing; accordingly, the Court rules on defendants' motion on the documents as filed. O'Toole, supra, 681 F.2d at 98 (citing Gibbs v. Buck, 307 U.S. 66, 71-72, 59 S.Ct. 725, 729, 83 L.Ed. 1111 (1939)); see also Rule 11(g), Rules of the United States District Court for the District of New Hampshire.

Plaintiffs assert that they are entitled to remedy pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983. Section 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Section 1983 does not encompass private discriminatory actions; to be actionable under section 1983, a purported unlawful interference with federal rights must be "fairly attributable to the State." Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2770, 73 L.Ed.2d 418 (1982) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982)). This prerequisite to liability under section 1983 serves two purposes. It preserves individual freedom by "limiting the reach of federal law and federal judicial power," and it "avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed." Lugar, supra, 457 U.S. at 936, 102 S.Ct. at 2753. Furthermore, "the state-action requirement reflects judicial recognition of the fact that `most rights secured by the Constitution are protected only against infringement by governments.'" Id. (quoting Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978)). Thus, in the instant action the Court must determine whether the actions taken by Dartmouth and the other defendants against the plaintiffs "can fairly be seen as state action." Rendell-Baker, supra, 457 U.S. at 838, 102 S.Ct. at 2770.

In determining whether state action is present, three areas of inquiry are relevant.¹ These areas of inquiry are factually oriented; "only by sifting facts and weighing circumstances can the non-obvious involvement of the State in private conduct be attributed its true significance." Lugar, supra, 457 U.S. at 939, 102 S.Ct. at 2755 (quoting Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961)). The first such area is the extent to which the actions at issue were "compelled or even influenced by any state regulation." Rendell-Baker, supra, 457 U.S. at 841-42, 102 S.Ct. at 2771 (citing Blum, supra, 457 U.S. at 1007-10, 102 S.Ct. at 2787-89; Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974)).

In Rendell-Baker, the defendant school discharged five teachers and a vocational counselor. The only state regulation directed toward the school's personnel policies involved a state committee's power to exercise approval of persons hired as vocation counselors. The Supreme Court found that this limited amount of regulation neither compelled nor influenced the school's decision to terminate the plaintiffs' employment; consequently, the school's discharge of the plaintiffs was held not to constitute state action. Rendell-Baker, supra, 457 U.S. at 841-42, 102 S.Ct. at 2771. Similarly, in Blum, the Supreme Court held that decisions made by privately-owned nursing homes to transfer or discharge residents without their approval did not constitute state action because, although the homes were subject to heavy state regulation, the regulations themselves did not dictate the nursing homes' decisions with regard to particular cases. Blum, supra, 457 U.S. at 1008, 102 S.Ct. at 2788. In applying the dictates of Rendell-Baker and Blum, the First Circuit Court of Appeals has stated that "the party seeking to establish that action of a private party violated the Constitution must be able to point to the specific act or actions of the government which in fact motivated the private action." Gerena v. Puerto Rico Legal Serv., supra, 697 F.2d at 450, quoted with approval in Ponce v. Basketball Fed'n of Puerto Rico, 760 F.2d 375, 378 (1st Cir.1985).

Defendants herein allege that the actions taken by Dartmouth and the Inn were neither compelled nor influenced by any laws or regulations promulgated by the State of New Hampshire, its agencies or officers, or the federal government. Affidavit of Cary P. Clark, Dartmouth College counsel, at ¶¶ 8-9. Mr. Clark's affidavit also asserts that such laws and regulations do not exist in New Hampshire regarding private educational institutions' enforcement of student discipline. Id. § 8. Moreover, plaintiffs do not refute defendants' assertions, and in their memorandum of law seemingly concede that defendants' actions were unrelated to state regulation. See Plaintiffs' Memorandum at, e.g., 23, 26, 27-28 & n. 5. Accordingly, the Court finds that defendants' actions were neither compelled nor influenced by state direction. Cf. Albert v. Carovano, 824 F.2d 1333 (2d Cir.1987) (state action found due to presence of state statute which strongly influenced actions at issue); Johnson v. Pinkerton Academy, No. 84-726-D, slip op. at 9-12 (D.N.H. Apr. 16, 1986) (state action found based on language of state statute).

The next factor the Court considers is whether providing postsecondary education is a function that "has been traditionally the exclusive prerogative of the State." Rendell-Baker, supra, 457 U.S. at 842, 102 S.Ct. at 2772 (emphasis in original) (citations omitted). If so, concomitant to delegating its responsibility, the State is deemed to have transferred its authority, and state action is established. See Ponce, supra, 760 F.2d at 381 (citing Jackson v. Metropolitan Edison...