Yakin v. UNIVERSITY OF ILLINOIS, ETC.
| Decision Date | 20 February 1981 |
| Docket Number | No. 79 C 4070.,79 C 4070. |
| Parties | Paul YAKIN, Plaintiff, v. The UNIVERSITY OF ILLINOIS, CHICAGO CIRCLE CAMPUS, Dr. Richard Johnson, Dr. Jan Rocek, Dr. Roger Dominowski, Dr. I. E. Faber, Dr. Leonard Eron, Dr. Michael Levine, Dr. Phillip Ash, Dr. Benjamin Kleinmuntz, Dr. Judith Torney, Dr. Merwyn Garbarino, Budd H. Bowen, individually and/or as agents of the University of Illinois, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Lance Haddix, Chicago, Ill., for plaintiff.
James T. Otis, Keck, Cushman, Mahin & Cate, Chicago, Ill., for defendants.
This matter comes before the court on the motion of defendants Board of Trustees of the University of Illinois, Dr. Richard Johnson, Dr. Roger Dominowski, Dr. I. E. Farber, Dr. Leonard Eron, Dr. Michael Levine, Dr. Phillip Ash, Dr. Benjamin Kleinmuntz, Dr. Judith Torney, and Dr. Merwyn Garbarino to dismiss counts II and IV of the complaint. For the reasons set forth below, the motion is denied.
Count II alleges, inter alia, the following. In the Fall of 1974 plaintiff was selected to participate in the PhD program in psychology at the University of Illinois, Circle Campus (the "University"), which receives federal financial assistance. Plaintiff, a Mexican-American, was admitted through the Graduate Educational Opportunity Program (the "GEO Program"), an affirmative action program at the University. Each spring the entire faculty of the Department of Psychology (the "Department") evaluates the progress of its students.
In May of 1975 a majority of the Department's faculty voted to terminate plaintiff's participation in the PhD program. Plaintiff's advisor felt that plaintiff had been judged as a regular student rather than a GEO Program student and helped plaintiff draft two petitions for reconsideration of his termination. His appeal was granted and plaintiff was given two quarters to prepare for the PhD preliminary examination. Plaintiff wrote on a topic suggested by his advisor.
On or about April 25, 1976 a five member faculty committee agreed that plaintiff had failed the examination and recommended that he not be given a second chance to take it, as permitted upon recommendation of that committee. In May of 1976 the Department's faculty voted to terminate plaintiff from the PhD program, thereby denying his appeal to repeat the examination on a topic with which he was more familiar.
On or about September 22, 1976 plaintiff filed a grievance with the dean of the graduate college, Dr. Jan Rocek ("Rocek"), alleging discrimination on the basis of national origin. At a meeting held on or about October 6, 1976, at which plaintiff, Rocek, members of the Department's faculty and a member of the Educational Assistance Program were present, Rocek recommended that the Department's faculty reconsider its denial of a second examination. However, the Department's faculty reaffirmed its initial decision. On or about October 12, 1976 Rocek established a hearing panel which found that there was no evidence of discrimination and that plaintiff should be terminated without an opportunity to repeat the examination. On or about November 30, 1976 Rocek affirmed the hearing panel's findings.
On or about December 6, 1976 plaintiff appealed Rocek's decision and on or about January 31, 1977 the Associate Chancellor established a panel to conduct a de novo review. On June 20, 1977 the Associate Chancellor stated that the Department's faculty had not discriminated against plaintiff and that the standards of the GEO Program had been properly applied.
On or about June 23, 1977 plaintiff appealed to the Chancellor on the grounds of "improper procedure." This appeal was denied July 7, 1977. Plaintiff subsequently was terminated from the PhD program.
Equal Opportunity Specialist Bud Bowen ("Bowen") conducted an investigation of the grievance filed by plaintiff. In his report Bowen concluded that there was evidence that students may have been treated unfairly and that the Department's criteria were vague and subjective; that plaintiff had failed to measure favorably against "established comparative performance criteria of the department"; that prior to the 1976-77 academic year, the sole written criteria for students was that they maintain a minimum 4.00 grade point average; that prior to the 1976 termination decision, plaintiff had a 4.15 grade point average; and that the faculty applied other nonwritten criteria. Thus, plaintiff contends in count II that defendants acted arbitrarily, capriciously and without rational basis, due solely to plaintiff's national origin, in violation of title VI, 42 U.S.C. §§ 2000d—2000d-4.
Thus, plaintiff contends that this document created a contract between the University and/or its departments and/or programs and plaintiff and that the University, the Department and/or the GEO Program breached this contract by not extending any of the services expressly offered to plaintiff.
Defendants move to dismiss count II because plaintiff lacks standing to sue and has failed to plead exhaustion of administrative remedies and to dismiss count IV because plaintiff has failed to plead the elements of a contract. The court does not agree.
Defendants' standing argument with respect to count II has two prongs. Defendants contend first that only a recipient of federal financial assistance or the beneficiary of any program or activity receiving such assistance can be a plaintiff and second that there is no private right of action under title VI.
Section 601 of title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d,1 prohibits discrimination on the basis of race, color or national origin by a recipient of federal funds against the participants in (or beneficiaries of) any program or activity receiving federal financial assistance conducted by the recipient. EEOC v. Southwestern Baptist Theological Seminary, 485 F.Supp. 255, 261 (N.D.Tex.1980). The amended complaint alleges that the University receives federal financial assistance and that the University and/or its agents have violated rights secured by title VI. Since the Department and the GEO Program are part of the University, it does not matter whether the University, the Department or the GEO Program receives the federal financial assistance. See Bob Jones University v. Johnson, 396 F.Supp. 597, 601-604 (D.S.C.1974), aff'd, 529 F.2d 514 (4th Cir. 1975). Thus, count II cannot be dismissed on the ground that neither the Department, the GEO Program nor plaintiff receive federal financial assistance directly.
Title VI does not expressly authorize a private right of action by a person injured by a violation of section 601. Implicit in decisions of the Supreme Court is the assumption that title VI creates a private right of action for the victims of illegal discrimination. Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976); Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974). Since neither the Supreme Court nor the Seventh Circuit have decided whether a private cause of action is implied under title VI, the court will address that issue next.
Any discussion of whether a private cause of action is implied under a statute must begin with the factors identified in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975):
In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff "one of the class for whose especial benefit the statute was enacted, ...—that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? ... Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ... And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?
The Supreme Court has decided that each of these factors is not entitled to equal weight and has indicated that in appropriate cases it is necessary to consider only the first two or three factors. Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82 (1979); Davis v. Ball Memorial Hospital Ass'n, No. 80-1209, slip op. at 28, 640 F.2d 30 at 44 (7th Cir. Oct. 3, 1980).
The first question, whether the statute was enacted for the benefit of a special class of which plaintiff is a member, is answered by looking to the language of the statute itself. Cannon v. University of Chicago, 441 U.S. 677, 689, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). Language in the statute which expressly identifies the class Congress intended to benefit and which confers a right directly on a class of persons that includes the plaintiff or creates a duty in favor of the plaintiff is...
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...Othen rejects also has been applied in Title VI cases involving claims of individual discrimination. See Yakin v. University of Illinois, 508 F.Supp. 848, 850 (N.D.Ill.1981) ("Since the Department and the GEO Program are part of the University, it does not matter whether the University, the......
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