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ISAACS v. BOARD OF TRUSTEES OF TEMPLE UNIV.

November 11, 1974

MARK ISAACS and MARGARET ISAACS
v.
BOARD OF TRUSTEES OF TEMPLE UNIVERSITY--OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, ET AL.



The opinion of the court was delivered by: HIGGINBOTHAM

 INTRODUCTION

 Plaintiffs, Mark and Margaret Isaacs, filed this action subsequent to the termination of their employment as faculty members in the School of Communications and Theatre of Temple University -- of the Commonwealth System of Higher Education (hereinafter "Temple"). In their complaint, they invoked the jurisdiction of this Court pursuant to 28 U.S.C. § 1343(3) and (4) (1970) and specified provisions of the Civil Rights Act of 1871, 42 U.S.C. §§ 1983 and 1985 (1970), and alleged that the defendants in this action, Temple's Board of Trustees and certain administrative officials of the University, had deprived them of rights secured to them by the First, Fifth and Fourteenth Amendments to the Constitution of the United States. Defendants did not answer the complaint. Instead, pursuant to Rule 56 of the Federal Rules of Civil Procedure, they filed a motion for summary judgment, challenging the subject matter jurisdiction of this Court. They asserted that Temple was a "purely private" institution and that, as a result, defendants' termination of plaintiffs' employment was neither "state action" for the purposes of the Fourteenth Amendment *fn1" nor action "under color of" state law for the purposes of 42 U.S.C. § 1983 (1970). *fn2" Plaintiffs then sought, and were granted, extensive discovery to enable them to determine the precise relationship between Temple and the Commonwealth of Pennsylvania (hereinafter "the Commonwealth"). At the close of the discovery process, both plaintiffs and defendants submitted comprehensive memoranda of law in support of their respective positions and vigorously defended those positions before this Court during oral argument.

 The record thus developed reveals that for more than a decade Temple has attempted to walk nimbly on both sides of the line demarcating "state action" from "nonstate action." At any time its ultimate rationale seems solely dependent upon whether it is more profitable for Temple to adopt the "state action" or "nonstate action" mantle. When seeking an increased largesse from the state's treasury, the predominant pitch was that Temple should get more because it is a state-related institution, and with such salesmanship (or should we call it "statesmanship"), Temple has received more than 270 million dollars in direct appropriations or benefits over the last nine years. When confronted with the possibility of a vigorous federal enforcement of the National Labor Relations Act against Temple, once again Temple emphasized its state-related status as the basis of exemption from enforcement of the federal statute. *fn3" Though it succeeded in these instances by flying the flag of state-relatedness, Temple's position dramatically shifts in this forum where it is faced with a federal civil rights statute which is applicable to all institutions which function under color of any statute, ordinance, regulation, custom, or usage of any state. Temple's prior state-related voices have become muted; they now croon a counter lullaby that "after all, Temple is merely a private institution," and thus not subject to the "state action" prohibitions of the federal civil rights statutes.

 Emerson once said "A foolish consistency is the hobgoblin of little minds." Temple can never be charged with having a little mind, but its adroit and nimble legal maneuvering has finally caught up with it. It must now either fish or cut bait. On the facts of record here, the cases require that all of Temple's actions be designated as "state action" under the Fourteenth Amendment and therefore action "under color of" state law under 42 U.S.C. § 1983 (1970). *fn4" While this conclusion as to Temple appears to me to be patently obvious, over the years there have been enough dicta in other cases and enough contrary results based on substantially different factual records that I am compelled to write an opinion more extensive in factual and legal analysis than it otherwise would have been. However, because of the remand in the University of Pittsburgh case to a judge in the Western District of Pennsylvania, *fn5" I have concluded that it is safer to err by excessive citation of the record than to fail to state what one might think is obvious. In any event, defendants' motion for summary judgment must be denied.

 The Origins of the Temple University-Commonwealth Act of 1965.

 My analysis of the present relationship between Temple and the Commonwealth begins with a review of the genesis and legislative history of the Pennsylvania statute which controls that relationship, the Temple University-Commonwealth Act of 1965 (hereinafter "the Act"), 24 P.S. § 2510-1, et seq. The association between Temple and the Commonwealth which has been put in issue by defendants' motion for summary judgment began some ten years ago. The then Governor of Pennsylvania and his Budget Secretary suggested to Temple that it "explore means by which the Commonwealth and Temple University could develop an arrangement to provide greater educational opportunity at lower cost than was being provided at that time." (Plaintiffs' Supplemental Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment, May 24, 1974 (hereinafter "Plaintiffs' Memorandum"), Exhibit B at 14.) In 1964, Temple officials responded to this suggestion and proposed such an arrangement. Their proposal led to the Temple University-Commonwealth Act of 1965, 24 P.S. § 2510-1 et seq. That the Commonwealth hoped to benefit substantially from the arrangement is indisputable. As one party to the many lengthy discussions that preceded the passage of the Act phrased it:

 
"The Commonwealth decided that this offered the Commonwealth an opportunity to do what it wanted to do in the least expensive way for the Commonwealth that possibly could be found and the quickest way -- namely, to provide the educational opportunities at the kind of cost to the student. To build an entirely new institution, to start from scratch, not only was expensive and time-consuming -- but also, because Temple University already had a very -- an extensive public image as the kind of an institution that transition would be very easy from its former status to become a State-related institution." (Plaintiffs' Memorandum, Exhibit B at 15.)

 The legislative history of the Act, as contained in the "Report of the Higher Education Committee, The House of Representatives, Commonwealth of Pennsylvania, 1965-1966 (hereinafter the "Report"), confirms the mutual benefits that Temple and the Commonwealth hoped to secure, and did in fact secure, through passage of the Act. (Defendants' Motion for Summary Judgment, December 26, 1973 (hereinafter "Defendants' Motion"), Affidavit of William G. Willis, Attachment 1.)

 The Higher Education Committee called the Act "one of the high points of higher education legislation in Pennsylvania's recent history." (Report at 34.)

 
"By the enactment of this legislation, the Commonwealth has, for the first time, directly and explicitly made it a matter of public policy that opportunities for Higher Education should be expanded and that costs to the student should be reduced. Temple University will now be the instrumentality of the Commonwealth to implement this policy in southeastern Pennsylvania." (Id.)

 The Act, the Committee foresaw, would allow Temple, by 1970, to expand its enrollment by 10,000 students. Furthermore, "the prevailing tuition charge for full-time Pennsylvania resident students will be more than cut in half." ( Id. at 35.)

 These benefits would flow to Temple because "[in] essence, the Temple University-Commonwealth Act establishes a working partnership between the University and the State. Temple retains its private corporate identity, but the Commonwealth shares in the control of the institution" through the appointment of one-third of Temple's Board of Trustees and through the financial accountability provisions written into the Act." (Id.) The Act thus created an "organic relationship between Temple University and the Commonwealth" that is "the same as that between the Commonwealth and the Pennsylvania State University. Both of these institutions, while private in corporate identity, are invested with a quasi-public character and charged with certain public responsibilities, obligations and commitments." (Id.)

 In a review of the factors that influenced it to recommend the relationship the Act established, the Committee singled out for special notice the need to expand enrollment and to reduce tuition in higher educational institutions within the Commonwealth, and the contribution that expanded ...


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