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March 13, 1975

Dr. Ina BRADEN, on behalf of herself and all others similarly situated, Plaintiff,
The UNIVERSITY OF PITTSBURGH and Wesley W. Posvar, Defendants

Sorg, District Judge.

The opinion of the court was delivered by: SORG


SORG, District Judge.

 Dr. Ina Braden, plaintiff in the above entitled action, seeks damages and injunctive relief against the University of Pittsburgh (Pitt) and its Chancellor, Wesley W. Posvar, alleging injury as a result of discriminatory employment practice on the basis of sex. The alleged injury having occurred prior to the 1972 Amendment which rendered the Equal Employment Opportunities Act of 1964 applicable to private educational institutions, 42 U.S.C.A. § 2000e-1, plaintiff predicates jurisdiction on 28 U.S.C.A. § 1343 and the Civil Rights Act of 1871, 42 U.S.C.A. § 1983. *fn1" The defendants have moved to dismiss, presenting a single dispositive issue: Did Pitt perform the challenged activity "under color of state law," and, therefore, subject to the "equal protection" clause of the Fourteenth Amendment to the Constitution of the United States vel non? *fn2"

 Having concluded that the complaint did not set forth sufficient factual allegations to establish state participation in the non-renewal of Dr. Braden's teaching contract about which she complains, this court, on January 31, 1972, entered an Order granting the defendants' Motion to Dismiss. On February 5, 1973, the Court of Appeals for the Third Circuit vacated said Order and remanded for an evidentiary hearing on the matter of Pitt's relationship with the Commonwealth of Pennsylvania in the light of Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961), wherein racial discrimination by a restaurant concessionaire operating on the premises of a state parking facility was held to be a Fourteenth Amendment violation -- "under color of state law." At a hearing held on October 29, 1974, (after repeated continuances at the request of the parties) the evidence clearly established the facts set forth in this court's memorandum reported at 343 F. Supp. 836 (1972), save the finding that the Commonwealth had no proprietary interest in the University's facilities.

 Additionally, with respect to the concerns of the higher court expressed in Braden v. University of Pittsburgh, 477 F.2d 1 (3rd Cir. 1973), the following circumstances, in existence on July 9, 1971, the filing date of the complaint, are pertinent:

 1. The relationship between the Commonwealth and Pitt is controlled by the "University of Pittsburgh -- Commonwealth Act," 1966, Special Session No. 3, July 28, P.L. 87 § 1, 24 P.S. § 2510-201 et seq.


(a) § 2510-202: ". . . [It] is hereby declared to be the purpose of this act to extend Commonwealth opportunities for higher education by establishing University of Pittsburgh as an instrumentality of the Commonwealth to serve as a Staterelated institution in the Commonwealth system of higher education."


(b) § 2510-203: "The Charter of the University of Pittsburgh shall be amended by changing the name of University of Pittsburgh to 'University of Pittsburgh -- Of the Commonwealth System of Higher Education,' . . ."


(c) § 2510-204: The board of trustees shall be composed of 36 voting members including 4 ex officio members. "Twelve of the trustees shall be designated Commonwealth trustees and four shall be appointed by the Governor, with the advice and consent of two-thirds of all of the members of the Senate, four by the President Pro Tempore of the Senate, and four by the Speaker of the House of Representatives."


(d) § 2510-205: "The entire management, control and conduct of the instructional, administrative, and financial affairs of the university is hereby vested in the board of trustees. . . ."


(e) § 2510-206: "The annual appropriation act to the University for general maintenance may specify the purposes or areas for which such appropriations may be expended by the university." The act may contain a tuition supplement requiring the University to maintain certain tuition rates and fee schedules for Pennsylvania resident full-time students, provided the amounts appropriated are sufficient for the maintenance of such schedules.


(f) § 2510-207: Amounts appropriated shall be paid to the board of trustees only upon presentation of certified payrolls showing expenditures in accordance with appropriations. After the filing of a statement of expenditures by the University from Commonwealth appropriations, the Auditor General shall have the right to audit and disallow.


(g) § 2510-208: "The benefits of all Commonwealth or Commonwealth authority programs for capital development and improvement shall be available to the university under terms and conditions comparable to those applicable to land grant institutions of higher learning and State colleges. . . ."


(h) § 2510-210: "The Chancellor of the university shall each year, not later than the first day of October, make a report of all the activities of the university, instructional, administrative and financial, for the preceding scholastic and fiscal year, to the board of trustees, who shall transmit the same to the Governor and to the members of the General Assembly."

 2. The structure of Pitt's Board of Trustees is established by the University's By-Laws. Defendants' Exhibit A.


(a) ARTICLE I: Pitt's Board of Trustees consists of 36 voting members, 3 ex officio non-voting members, which includes the Governor of the Commonwealth of Pennsylvania, the Mayor of the City of Pittsburgh, and the Superintendent of the Pennsylvania Department of Public Instruction, *fn3" in addition to 10 to 12 non-voting trustees emeriti.


(b) ARTICLE I: Twelve Charter Trustees are elected by the Board of Trustees and serve for life or until 65 years of age; six alumni trustees are elected for three-year terms by the Board of Trustees on nomination by the General Alumni Association; and six Term Trustees are elected for three-year terms by the Board. There are twelve Commonwealth Trustees who are named by public officials pursuant to the Commonwealth Act.


(c) ARTICLE III: The Chancellor is elected by the affirmative vote of 19 members of the Board of Trustees. Also "he shall be ex officio a voting member of all standing committees of the Board."

 3. The names, employers, occupations, and category of the members of the Board of Trustees of Pitt are set forth in Defendants' Exhibit B.

 4. The voting record of individual trustees is not kept, but, according to the testimony, the trustees appointed by the Commonwealth have never acted in a bloc.

 5. All trustees, except the Chancellor, serve without compensation.

 6. Concerning the views of the trustees respecting the import of the word "instrumentality" in 24 P.S. § 2510-202 (6), the following testimony is typical:


"I do not regard the University as an agency of the State. I consider it purely autonomous. I don't believe the State has any role in any of the personnel practices of the University." (Harbaugh Miller, Esq., former Commonwealth Trustee. Tr. 205).


"I do not view the University as an agency of the State, nor do I view the State as having any role in dealing with the management of the University. I view this as the prerogative of the Board of Trustees, and the Chancellor who is appointed by that Board of Trustees." (Alexandria W. Chauss, Alumni Trustee. Tr. 160).


"I think we look on our relationship with the State as a contractor for services to the State for which the University is compensated and for which the University has some responsibility or has -- let me correct that -- has responsibility for accounting to the State for state funds, as would any contractor." (William H. Rea, Charter Trustee, Chairman of the Board of Trustees, member of the State Board of Education, Chairman of the State Council of Higher Education. Deposition 20).


"Well, I have always considered that relationship both as Chancellor of the University and as the Secretary of Education, that the University is primarily a private institution, with a relationship to the State under which they agreed to meet certain requirements as far as giving Pennsylvania residents, for example, for admission, and having State representation on the Board of Trustees. . . . [The] instrumentality is that, as I interpret it, it is a commitment that the University has made to perform certain services for the State." (Dr. David H. Kurtzman, former Pitt Chancellor and Commonwealth Secretary of Education. Tr. 46).

 Dr. Kurtzman further testified that the Commonwealth does not exercise any control over the hiring, promotion, tenure, or firing of either faculty members or other personnel. (Kurtzman, Tr. 48-49, 63-64). Similarly, Warren E. Ringler, Commonwealth Deputy Commissioner for Higher Education, testified that the Department of Education does not review individual Pitt faculty appointments. (Ringler, Deposition 77; Tr. 22).

 7. The attitude of the trustees regarding sex discrimination is reflected in a 1970 Resolution of the Board, which states as follows:


"BE IT RESOLVED, that the Board of Trustees affirms its opposition to arbitrary and unlawful discrimination, and supports the efforts of the Chancellor to enforce this policy and to comply with all legal requirements related to discrimination based on sex."

 In addition, when the University Committee on Women's Rights made allegations of unfair treatment, the University, under the direction of Chancellor Posvar, requested the United States Health, Education and Welfare Department to conduct an investigation. In seven of the nine cases examined, these complaints, including Dr. Braden's, were found to be without substance. In the two cases where discrimination was believed to have existed, the matter was rectified. (Freeman, Tr. 247-248).

 8. Pitt, since its founding in 1787, and prior to its becoming state-related, has received aid from the state described by Trustee Freeman as "rather substantial," including an emergency loan in the amount of $5,000,000.00 in 1965, when the University, according to the testimony of Dr. Kurtzman, "was going to run out of money before the end of 1965." Also, Pitt received the benefit of several Pennsylvania General State Authority projects during the years 1957 through 1966 amounting to $67,067,221.00.

 9. On Pitt's initiative, overtures were made to the State Board of Education in an effort to resolve the University's financial difficulties, ultimately resulting in the Commonwealth Act of 1966, supra. Prior to the passage of the Act, at a meeting of the State Board of Education on March 10, 1966, a Resolution was adopted wherein Pitt would increase enrollment and reduce tuition for Pennsylvania students by certain amounts. Additionally, the Resolution states: ". . . the Board recognizes that reduction in tuition alone does not make a state-related institution; rather, the University's program must be responsive to the educational needs of the Commonwealth and the University's program must take this into account." 10. Since the passage of the Act, Commonwealth appropriations received by Pitt account for approximately one-third of its operating budget. Revenue from the Commonwealth represented 32.4% of the gross revenue for the fiscal year 1971-72 and 35.1% for the year ending June 30, 1974. The amounts appropriated are as follows: 1968-69 $32,003,000.00 1969-70 $37,899,000.00 1970-71 $37,899,000.00 1971-72 $40,556,000.00 1972-73 $45,582,000.00 1973-74 $47,919,000.00


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