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BENNER v. OSWALD

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


January 24, 1978

DRIANNE BENNER, et al., Plaintiffs
v.
JOHN W. OSWALD, President of The Pennsylvania State University, et al., Defendants

The opinion of the court was delivered by: MUIR

MUIR, District Judge.

 I. Introduction.

 Drianne Benner and three other undergraduate students at the Pennsylvania State University (Penn State) have filed this action pursuant to 42 U.S.C. § 1983 alleging that the method of selection of the members of the Board of Trustees of Penn State which does not permit undergraduate students to elect representatives to the Board of Trustees violates their constitutional rights under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. On December 6, 1977, all Defendants except Defendants Shapp, Shelhamer, Kline, and Goddard filed a motion for summary judgment accompanied by a brief. On December 15, 1977, the remaining Defendants joined in the motion. On December 20, 1977, Plaintiffs filed a cross-motion for summary judgment accompanied by a brief in support of their motion and in opposition to the Defendants' motion. On December 23, 1977, Defendants filed a reply brief. On January 3, 1978, the case was submitted to the Court on the basis of a case stated with all parties electing to rely upon the briefs already submitted. The Court deems this submission of the issues on a case stated basis to constitute withdrawal of the motions for summary judgment. The following are the Court's findings of fact, discussion, and conclusions of law.

 II. Findings of Fact.

 1. Plaintiffs are four undergraduate students enrolled in various courses of study at The Pennsylvania State University. (U)

 2. James Scarantino is twenty-one years old and an undergraduate student at the University, in the College of Liberal Arts. He entered the University in 1974, and expects to graduate in 1978 with the degree of Bachelor of Arts. His major fields of study are political science and economics. Plaintiff Scarantino has taken an active interest in the affairs of the University. He was Coordinator of Students for PennPIRG, and was elected Undergraduate Student Government Senator in 1976. He is chairman of the Organization for Town Independent Students and former chairperson of that organization's ad hoc Housing Study Committee. He is a member of Omicron Delta Kappa and Skull and Bones Honor Societies. He is also a registered voter in Centre County, Pennsylvania. (U)

 3. Ann Ziminski is twenty-one years of age. She entered the University in 1974, and expects to graduate with the degree of Bachelor of Science in the College of Agriculture in 1978. Her major field of study is Environmental Resources Management. She was the President of Eco-Action and a member of the Free University, both of which are University student organizations. She is a registered voter in Centre County, Pennsylvania. (U)

 4. Jeffrey Glazier is twenty years of age. He entered the University in 1975, and expects to graduate with the degree of Bachelor of Arts in the College of Liberal Arts in 1979. His major field of study is Labor Studies. He is a resident of University student housing and Vice President of the Association of Residence Hall Students, an organization of approximately 10,000 student members at the University. He was a member of the Student Litigation Organization and is a member of East Halls Radio, both of which are University student organizations. He is a registered voter in Lehigh County, Pennsylvania. (U)

 5. Drianne Benner is twenty-one years of age. She entered the University in 1974, and expects to graduate with the degree of Bachelor of Arts in the College of Liberal Arts in 1978. Her major field of study is Political Science and History. She was an active member of Students for PennPIRG, a University student organization. She is a registered voter in Centre County, Pennsylvania. (U)

 6. The Plaintiffs would like to participate in the election of trustees of the University and do not believe it is proper that others whom Plaintiffs believe have little or no relationship to the University, can participate in the election process while they have no such right. They are committed to working to change the election process and to that end intend to pursue this action vigorously. (U)

 7. The Defendants are 32 persons who, at the time of the initiation of this action, comprised the Board of Trustees of The Pennsylvania State University. (U)

 8. Defendants Milton J. Shapp, Kent Shelhamer, Caryl Kline and Maurice K. Goddard are ex-officio members because of their status as Governor, Secretary of Education, Secretary of Agriculture, and Secretary of Environmental Resources, respectfully. (U)

 9. Defendants Harry Boyer, Helen Davies, Joseph Rhodes, Jr., Robert L. Ruttenberg, Dion C. Stewart and William K. Ulerich have been appointed to the Board by the Governor. (U)

 10. Defendants H. Jesse Arnelle, Marian U. Barash, Walter J. Conti, Barbara H. Franklin, Ralph Hetzel, Kenneth L. Holderman, Charles W. Schaeffer and Helen Wise are the members of the Board representing the alumni. (U)

 11. Defendants J. Lin Huber, John M. Phillips, John R. Pitzer, Jr., Luther Snyder, Harry R. Ulrich and J. Lewis Williams were selected as Board members by delegates representing county agricultural societies. (U)

 12. Defendants H. Thomas Hallowell, Jr., Samuel F. Hinkle, John L. Romig, Stanley G. Shaffer, G. Albert Shoemaker and Quentin E. Wood were selected as Board members by delegates representing county engineering, mining and manufacturing societies. (U)

 13. Defendant Oswald is an ex-officio member of the Board as the President of The Pennsylvania State University. (U)

 14. These trustees were all selected in accordance with provisions of the corporate charter of the University. (U)

 15. The Pennsylvania State University was incorporated by an Act of the Legislature of the Commonwealth of Pennsylvania in 1855. Act of February 22, 1855, P.L. 46. (U)

 16. On March 13, 1867, the Board of Trustees of the University accepted the benefits of the Morrill Act as designated by the Legislature of the Commonwealth of Pennsylvania. Submitted herewith as Exhibit D26 is a certified copy of the relevant portion of the minutes of that meeting of the Board. (U)

 17. On August 28, 1878, the Executive Committee of the Board of Trustees accepted the provisions of the Constitution of the Commonwealth of Pennsylvania of 1874. Submitted herewith as Exhibit D25 is a certified copy of the relevant portion of the minutes of that meeting of the Board. (U)

 18. There have been numerous amendments to the charter changing the number of trustees and the manner of their selection. These amendments have been adopted by the Board of Trustees and approved by the Court of Common Pleas of Centre County. (Exhibits 35 through 45). These amendments were made by the Board of Trustees in conformance with the applicable corporate law in effect from time to time. (U)

 19. The present charter provides that the Board shall consist of five ex-officio members (the Governor, Secretary of Education, Secretary of Agriculture, Secretary of Environmental Resources, and the President of the University); six members appointed by the Governor, nine members selected by the General Alumni Association; six members selected by delegates representing county agricultural societies in the Commonwealth; and six members selected by delegates representing county engineering, mining, manufacturing and mechanical societies. (U)

 20. The authority, duties and functions of the Board of Trustees of the University, as well as the duties of the President and other officers of the Board, are set forth in the following documents: (a) the Corporate Charter (a true copy of which is submitted herewith as Exhibit D1); (b) the Corporate Bylaws (a true copy of which is submitted herewith as Exhibit D2); and (c) the Standing Order of the Board, adopted on June 11, 1970, as amended on November 19, 1971 and May 30, 1975, (a true copy of which is submitted herewith as Exhibit D3). (U)

 21. The President's duties as Secretary of the Board are set forth in Article 2, Section (4) of the Bylaws (Exhibit D2). He is custodian of the corporate seal; he conducts the ordinary correspondence of the Board; and he maintains an accurate record of all proceedings of the Board. (U)

 22. The current Bylaws of the Board (Exhibit D2) were adopted by resolution of the Board on November 13, 1970. (U)

 23. Both the deliberations of the Board and the adoption of the Bylaws occurred without the participation of either the executive or legislative branches of state government, except to the extent that the state government ex-officio members and the gubernatorial appointees participated as members of the Board of Trustees. (U)

 24. The Governor of the Commonwealth does not attend the meetings of the Board. The present Governor has designated a personal representative to attend meetings as a nonvoting observer. (U)

 25. In connection with the adoption of the Bylaws, there was no direction or recommendation emanating from the Governor, the Pennsylvania Department of Education, the State Board of Education or any other department of the executive branch, or from the legislative branch, of the Commonwealth of Pennsylvania. (U)

 26. The Bylaws provide for the organization and meetings of the Board, the duties of the officers of the Board, the functions of the committees of the Board and other miscellaneous matters. (U)

 27. The activities of the Board, and of the officers of the Board, and of the committees of the Board, conducted pursuant to the Bylaws, occur without participation by either the executive or legislative branches of state government, except to the extent that the state government ex-officio members and the gubernatorial appointees participate as members of the Board of Trustees. (U)

 28. In connection with the activities and functions provided for in the Bylaws, there is no direction to the Board from the Governor, the Pennsylvania Department of Education, the State Board of Education or any other department of the executive branch, or from the legislative branch, of the Commonwealth of Pennsylvania. (U)

 29. The Bylaws make no provision for the participation of executive or legislative branches of the Commonwealth in the activities and functions controlled by the Bylaws. (U)

 30. The duties of the President of the University have been established by the Board of Trustees by Standing Order of the Board, (Exhibit D3). (U)

 31. The Standing Order of the Board (Exhibit D3) adopted June 11, 1970, provides for the governance of the University. (U)

 32. Both the deliberations and the adoption of the Standing Order occurred without the participation of either the executive or legislative branches of state government, except to the extent that the state government ex-officio members and the gubernatorial appointees may have participated as members of the Board of Trustees. (U)

 33. The functions of the Board of Trustees, the President of the University, the faculty, the students and the University Council provided for in the Standing Order occur without the participation of either the executive or legislative branches of state government. (U)

 34. There has been no direction or recommendation to the Board, to the President, to the faculty, to the students or to the University Council from the executive or legislative branches of the Commonwealth with respect to the governance of the University. (U)

 35. The Standing Order makes no provision for the participation of executive or legislative branches of the Commonwealth in the activities and functions controlled by the Standing Order. (U)

  36. The University's commitment under its designation as the land grant institution of the Commonwealth is to be an institution where the leading object is, without excluding other studies, to teach such branches of learning as are related to agriculture and the mechanic arts. (U)

 37. Pursuant to the commitment made by the Act of April 1, 1863, P.L. 213, 24 P.S. § 2571 et seq., the Commonwealth of Pennsylvania provides for an annual appropriation to the University. (U) 38. In the last five fiscal years the amounts appropriated, and the percentage of total revenues these amounts represent, have been as follows: 1971-72 1972-73 1973-74 Amount Appropriated 76,200,000 82,694,000 87,106,895 % of Total Revenues 34.9% 33.8% 33.5% 1974-75 1975-76 Amount Appropriated 94,087,520 102,685,610 % of Total Revenues 32.4% 31.2% (U)

19780124

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