The opinion of the court was delivered by: SORG
Dr. Ina Braden, plaintiff, is employed by the corporate defendant University of Pittsburgh as an Assistant Professor in the Learning Resources Division of the University's Dental School. Dr. Wesley W. Posvar, the individual defendant, is the Chancellor of the University. Dr. Braden has brought this action, on her own behalf and on behalf of all women currently or previously employed by the University in "professional positions" from January of 1968 to the present, in four counts, alleging unlawful discrimination by the University and Dr. Posvar against those female professional employees. The defendants move to dismiss all four counts of the complaint, as amended, on jurisdictional grounds.
The Supreme Court has made it clear that the Civil Rights Act of 1866, predecessor of 42 U.S.C.A. § 1981, and termed the model for the phrase "any law providing for . . . equal civil rights," Georgia v. Rachel, 384 U.S. 780, 16 L. Ed. 2d 925, 86 S. Ct. 1783 (1966), was not intended to and should not be construed to apply to discrimination on any basis other than race:
The legislative history of the 1866 Act clearly indicates that Congress intended to protect a limited category of rights, specifically defined in terms of racial equality. As originally proposed in the Senate, § 1 of the bill that became the 1866 Act did not contain the phrase "as is enjoyed by white citizens ". That phrase was later added in committee in the House, apparently to emphasize the racial character of the rights being protected. Georgia v. Rachel, supra.
See also the complete history of the 1866 Act as set out in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 20 L. Ed. 2d 1189, 88 S. Ct. 2186 (1968).
Consistently with this interpretation, courts have held, both before and after the Supreme Court's decisions cited above, that complaints brought under 42 U.S.C.A. § 1981 alleging discrimination based upon grounds other than race cannot confer jurisdiction on the federal courts. See, e.g., Snowden v. Hughes, 321 U.S. 1, 88 L. Ed. 497, 64 S. Ct. 397 (1944); Agnew v. Compton, 239 F.2d 226 (9 Cir. 1956), cert. denied, 353 U.S. 959, 1 L. Ed. 2d 910, 77 S. Ct. 868 (1957); Ambrek v. Clark, 287 F. Supp. 208 (E.D. Pa. 1968); Schetter v. Heim, 300 F. Supp. 1070 (E.D. Wisc. 1969). A careful consideration of the contentions advanced by the plaintiff has not convinced the court that a departure from the above rule is warranted. Accordingly, since plaintiff's complaint does not allege discrimination based upon race, this court has no jurisdiction over the count alleging a violation of 42 U.S.C.A. § 1981.
Count II of plaintiff's complaint asserts that the same facts alleged in Count I constitute a violation of 42 U.S.C.A. § 1983.
The defendants urge dismissal of this count on the grounds that plaintiff has not alleged and cannot show any discrimination involving state action or carried out under color of state law.
42 U.S.C.A. § 1983, Civil Rights Act of 1871, unlike § 1981 discussed above, does not require a showing of discrimination based upon race. However, § 1983 is directed at those who misuse powers possessed by virtue of state law. Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961); United States v. Price, 383 U.S. 787, 16 L. Ed. 2d 267, 86 S. Ct. 1152 (1966). A § 1983 plaintiff, therefore, must establish not only that a federally-protected right has been violated but that the state has become involved to some significant extent in the violation. Burton v. Wilmington Parking Authority, 365 U.S. 715, 717, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961).
While the courts understandably have avoided creating any precise formula for determining what conduct will constitute the requisite significant involvement by the state in the affairs of an otherwise private entity, preferring to weigh the facts and circumstances of each case, Burton v. Wilmington Parking Authority, supra, it is clear that the inquiry must be limited to whether or not, and to what extent, the state has involved itself in the particular activity complained of. See, e.g., Blackburn v. Fisk University, 443 F.2d 121 (6 Cir. 1971); Grossner v. Trustees of Columbia University, 287 F. Supp. 535 (S.D.N.Y. 1968). Further, the test is not merely some scintilla of state action, but evidence of substantial state involvement in the activity complained of. See Commonwealth of Pennsylvania v. Brown, 270 F. Supp. 782 (E.D. Pa. 1967).
Plaintiff asserts that the University is sufficiently state-related to satisfy these requirements. The requisite state involvement is alleged to appear in the presence of state appointed trustees on the University's governing board, in the state's contribution of approximately one-third of the University's annual budget, and in the exemption of the University's bonds from state taxation. All of these incidents of state involvement with the University were mandated by the Commonwealth Act of 1966, 24 P.S. § 2510-201 et seq., which designated the University of Pittsburgh as a state-related institution in Pennsylvania's system of higher education. The Act, however, did not endow the University with the attributes of a state agency.
State involvement sufficient to transform a private university into an agency of the state within the meaning of § 1983 requires more than incorporating or chartering the University, Trustees of Dartmouth College v. Woodward, 17 U.S. 518, 4 L. Ed. 629 (1819); Powe v. Miles, 407 F.2d 73 (2 Cir. 1968); providing financial aid in the form of public funds, Grossner v. Trustees of Columbia University, supra ; or granting tax exemptions, Browns v. Mitchell, 409 F.2d 593 (10 Cir. 1969). Nor does a combination of these conditions constitute the requisite state involvement. Blackburn v. Fisk University, supra. With respect to Pennsylvania's power to appoint approximately one-third of the trustees on the University's governing board, this court's research has not revealed any prior treatment of the issue in the pertinent context. The existence of minority representation on a board of trustees, however, can hardly establish a position of such "interdependence" between the state and the University as is necessary to support a finding of state agency. In Burton v. Wilmington Parking Authority, supra, the Supreme Court held:
The State has so far insinuated itself into a position of interdependence with (the defendant) that it must be recognized as a joint participant in the challenged activity which, on that account, cannot be considered to have been . . . "purely private".
The instant case, however, does not parallel the circumstances in Burton which required the above conclusion. In Burton, it was conceded that the Negro plaintiff was refused service because of his race in a privately-owned restaurant leased from the state and located within a public parking garage owned and operated by an agency of the State of Delaware. The record in this case discloses no proprietary interest in University facilities on Pennsylvania's part, nor does it reveal any engaging in interdependent activities by that State and the entity whose policy is challenged. By the same token, the state has not cloaked the University's Chancellor with state authority. Unless the business of the University is deemed state action, his acts as Chancellor are not ...