The opinion of the court was delivered by: SORG
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.
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?
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.
(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 ...