The opinion of the court was delivered by: TEITELBAUM
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.
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" ...