HUBERT I. TEITELBAUM, District Judge.
This is a class action brought by the named plaintiffs against the University of Pittsburgh, Pennsylvania State University and Temple University (hereinafter referred to as Pitt, Penn State and Temple, respectively), certain named officers of those universities, and the Governor, Attorney General and Auditor General of the Commonwealth of Pennsylvania. By Opinion and Order of this Court dated August 21, 1972 (56 F.R.D. 435), the plaintiffs were determined to represent all married female students who since 1967 have attended any of the three defendant universities and who were classified as out-of-state students for tuition purposes on the basis of Rule B(2) of the Auditor General of Pennsylvania. The plaintiffs seek to have this Court declare Rule B(2) unconstitutional and to enjoin the defendants from administering any residency policy based upon Rule B(2) or its equivalent. In addition, the plaintiffs claim that they are entitled to restitution for those amounts paid in excess of the in-state tuition rate.
The case has proceeded as follows: The original complaint, brought against Pitt and the three state officials, alleged that jurisdiction existed under 42 U.S.C. § 1983 and its jurisdictional coordinates, 28 U.S.C. § 1343(3) and (4), and the Fourteenth Amendment. Plaintiffs then amended their complaint to name as additional defendants, Penn State, Temple, Indiana University of Pennsylvania and the thirteen state colleges of Pennsylvania and the certain named officers of those institutions. A second amended complaint alleged a cause of action under Article I, Section 27 of the Pennsylvania Constitution.
Defendants moved to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure and at the same time opposed plaintiffs' motion that the action be maintained as a plaintiff/defendant class action. The Opinion and Order of August 21, 1972 denied defendants' motion to dismiss and held that the action was to be maintained as a class action as to plaintiffs only. Indiana University of Pennsylvania and the thirteen state colleges were dismissed as party defendants.
Plaintiffs had previously moved to have a three-judge court hear the case. A three-judge court had been convened but was dissolved by Order of Court on February 16, 1972 when the Pennsylvania Attorney General withdrew his approval of Rule B(2) and the issue of state-wide applicability became moot. On August 25, 1972, after entry of the Order denying defendants' motion to dismiss, a hearing was held on plaintiffs' petition for a preliminary injunction. The petition was denied. Cross motions for summary judgment and plaintiffs' motion for partial summary judgment were then denied in March and April of 1973. Trial in this case commenced on July 16, 1973 and concluded on July 19, 1973.
This case revolves around the interpretation and effect of Auditor General's Rule B(2). Rule B(2), as promulgated by the office of the Auditor General on June 7, 1967, provided:
"The domicile of a wife (adult or minor) is that of her husband. Where, however, an unmarried woman enrolled as a student having a Pennsylvania resident status marries a non-Pennsylvania resident, she shall continue to be classified as a Pennsylvania resident within the meaning of these Rules."
Rule B(2) was in effect from June 7, 1967 until February 11, 1972, when the Attorney General of Pennsylvania withdrew his approval of the legality of the rule. For five months, until July 14, 1972, no official rule existed to guide the defendant universities in their classification of married women students. On that date, the Attorney General wrote each defendant university that a "married woman's residency should be determined in accordance with Rule B-3", which provided that a married woman's residency was prima facie the same as her husband's and that the presentation of convincing evidence could establish that a married woman was a Pennsylvania resident in spite of the fact that her husband was not. On April 6, 1973, Rule A(3) of the Pennsylvania Auditor General was promulgated to replace Rule B-3. Rule A(3) provides: "A married woman is presumed to have the domicile of her husband; however, such presumption may be rebutted by convincing evidence to the contrary." In addition, Rule A(3) sets out nine factors which will be considered to rebut the presumption that a married woman has the domicile of her husband. Rule A(3) is applied by the same administrative processes employed by the defendant universities in the administration of Rule B(2) and Rule B-3.
This case raises numerous issues as to (1) this Court's jurisdiction, (2) the immunity of the defendants, (3) the constitutionality of defendants' residency rules and practices, (4) the availability of restitution to the plaintiffs and (5) the proper method of judicial administration of class actions. Each major issue will be dealt with in turn, beginning with the issue of jurisdiction.
Plaintiffs assert that this Court has jurisdiction over their cause of action under any or all of three bases: (1) 28 U.S.C. § 1343 and 42 U.S.C. § 1983, (2) 28 U.S.C. § 1343 or 28 U.S.C. § 1331 and the Fourteenth Amendment and (3) pendent jurisdiction as to the state law claim made under Article 1, Section 27 of the Pennsylvania Constitution.
Section 1983 of Title 42, United States Code provides as follows:
"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 . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable . . . in an action at law, suit in equity, or other proper proceeding for redress."
In any determination of whether jurisdiction exists under Section 1983, there are two fundamental questions which can arise. The first question is whether the state action prerequisite of the statute is met. Because it is settled law that private individuals may not be held liable for deprivation of another's civil rights under Section 1983 ( Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970), fulfillment of the requirement that the defendants have acted "under color of state law" is the sine qua non of an action under the 1871 Civil Rights Act.
But even where the existence of state action is clear, as in this case where the parties have stipulated that the defendants acted under color of state law, the problem of whether the defendants are "persons" within the meaning of the act often remains. The question of whether an entity is a "person" under Section 1983 is to some extent the same question as whether that entity is immune from liability under the principles of sovereign immunity or the Eleventh Amendment.
Therefore, where the involvement of the state in the activities of the defendant entity is so extensive that the defendant contends that it is, in effect, a "state instrumentality", the Court must determine whether or not the defendant is a "person" within the meaning of Section 1983. It is of course, possible that the second question, whether the defendant is a "person", will never arise if the state's involvement with the defendant's activities is so concededly limited that only the state action question is raised. See, e.g., Pendrell v. Chatham College, 370 F. Supp. 494 (W.D. Pa. 1974).
In essence then, the terms "state action" and "person" are labels which are used to characterize the two ends of the spectrum of state involvement in a defendant entity's activities. In order for a cause of action to be stated under Section 1983 there must be some minimum state involvement with the actions of the defendant, that is, the defendant must have been acting under color of state law in the activity complained of. But once that minimum of state involvement has been ascertained, federal jurisdiction under Section 1983 may still fail if the state can be fairly said to control the defendant's activities. If the state controls the defendant's activities, the defendant entity is a state instrumentality and is not a person under Section 1983.
Thus, the person and state action concepts are not mutually exclusive, but rather are complementary aspects of the same problem in that any analysis to determine if either exists must be concerned with the nature and extent of state involvement in the defendant entity's activities. Neither conclusion is to be arrived at ipse dixit, by declaration rather than demonstration; both determinations should be the product of painstaking judicial analysis and attention to detail.
In this case, the precise question before the Court is whether or not the three defendant universities are "persons" within the meaning of Section 1983. The problem does not arise as to the defendant state officials. In arguing this question, the universities place great reliance upon the following quotation from Braden v. Univ. of Pgh., 477 F.2d 1, 7, n. 10 (3d Cir. 1973):
" If the University is a state agency, the cause of action based on 42 U.S.C. § 1983 cannot be maintained for in U.S. ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84, 86 (3d Cir. 1967) . . . [it was held, in reliance upon Monroe v. Pape, that] . . . a municipality was not such a 'person ' contemplated by the Civil Rights Act of 1871 (now 42 U.S.C. § 1983)." (Emphasis added.)
All three defendant universities contend vigorously that they are "state agencies" as that conclusory term is used in Braden. Their argument, springing from the holding in Monroe v. Pape, supra is that since such state instrumentalities as the California Adult Authority ( Olson v. California Adult Authority, 423 F.2d 1326 (9th Cir. 1970), cert. denied 398 U.S. 914, 26 L. Ed. 2d 78, 90 S. Ct. 1717) and the Pennsylvania Board of Parole ( Taylor v. Board of Parole, 263 F. Supp. 450 (M.D. Pa. 1967)) have been held not to constitute persons; by the same reasoning, if they are "state instrumentalities", they cannot be persons under the Civil Rights Act.
Those courts which have considered the question of whether or not a university or college whose operations interconnect with those of state government to some degree are state instrumentalities have arrived at varying conclusions. In Wolfe v. O'Neill, 336 F. Supp. 1255 (D. Alaska 1972); Holliman v. Martin, 330 F. Supp. 1 (D. Va. 1971); Kirstein v. Rector of Univ. of Va., 309 F. Supp. 184 (D. Va. 1970); and Sellers v. Regents of Univ. of Calif., 432 F.2d 493 (9th Cir. 1970), cert. denied 401 U.S. 981, 91 S. Ct. 1194, 28 L. Ed. 2d 333 (1971), it has been held that certain state or state-related universities are not persons under Section 1983 and thus are not amenable to suit under that statute. But in Green v. Dumke, 480 F.2d 624 (9th Cir. 1973); Anthony v. Cleveland, 355 F. Supp. 789 (D. Hawaii 1973); Lee v. Board of Regents, 441 F.2d 1257 (7th Cir. 1971); Brown v. Strickler, 422 F.2d 1000 (6th Cir. 1970); and Trister v. Univ. of Mississippi, 420 F.2d 499 (5th Cir. 1969), Section 1983 actions have been permitted against various state or state-related universities. Also, in at least two recent Supreme Court decisions, Papish v. Board of Curators of Univ. of Missouri, 410 U.S. 667, 35 L. Ed. 2d 618, 93 S. Ct. 1197 (1973) and Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972), suit has been permitted under Section 1983 against universities with significant state/school interconnections. The difficulty in interpreting this latter group of cases is that although they are cited for the proposition that state and state-related universities are persons, there is no express language in the opinions to that effect.
Faced with the dearth of judicially acknowledged standards for making the determination as to whether a university with significant state/school interconnections is a state instrumentality and thus not a person, up until recently, many courts have been able to avoid making such a decision by holding that Monroe v. Pape did not preclude a suit for equitable relief, as opposed to damages, against a governmental entity, whether or not that entity was a person within the meaning of Section 1983. See, for example, Schnell v. City of Chicago, 407 F.2d 1084, 1086 (7th Cir. 1969).
This option is no longer available to a federal court. In City of Kenosha, Wisconsin v. Bruno, 412 U.S. 507, 513, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973) the Supreme Court stated:
"We find nothing in the legislative history discussed in Monroe, or in the language actually used by Congress, to suggest that the generic word 'person ' in § 1983 was intended to have a bifurcated application to municipal corporations depending on the nature of the relief sought against them. Since, as the Court held in Monroe, 'Congress did not undertake to bring municipal corporations within the ambit of ' § 1983, 365 U.S. at 187, they are outside of its ambit for purposes of equitable relief as well as for damages."