APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 77-351)
Before Aldisert and Hunter, Circuit Judges and Steel, District Judge.*fn*
The question is whether the equal protection clause of the fourteenth amendment requires undergraduate student participation in the election of certain members of the Pennsylvania State University (Penn State) board of trustees. The district court ruled that the students had no such right. They have appealed. Finding no error, we affirm.
All material facts are set forth in stipulated findings contained in the district court opinion, Benner v. Oswald, 444 F. Supp. 545 (M.D.Pa.1978). The board of trustees is composed of 32 members. Five serve as ex officio members including the president of the University, the state governor and three members of his cabinet. Six other trustees are appointed by the governor with the consent of the senate. The student appellants do not challenge the method by which these eleven trustees are selected, but they do challenge the selection of the remaining 21 trustees. Of this latter group, 9 trustees are elected by the alumni association and 12 are elected by the members of county agricultural and industrial societies of Pennsylvania. Students Qua students, therefore, do not participate in the election process. They complain that the refusal to allow them to participate in the selection process of these 21 trustees denies them rights guaranteed by the equal protection clause.
They argue preliminarily that the selection process involves state action, thus affording them a procedural vehicle under 42 U.S.C. § 1983*fn1 to obtain relief in a federal forum. Substantively, they mount alternative arguments: first, they contend that Kramer v. Union Free School District, 395 U.S. 621, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969), is controlling judicial precedent, requiring appellees to demonstrate that a compelling state interest justifies the trustee selection process. Alternatively, they argue that the selection process cannot pass scrutiny under the less rigorous rational relationship test. The district court agreed with them that requisite state action was present, but held that the proper standard of classification was the rational relationship test, and relying on the McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961), formulation that the process would be set aside only if the classification is "wholly irrelevant to the achievement of the state's objective," held that the necessary relationship was present.
Alumni trustees are chosen for staggered three-year terms and are elected in a process that begins early in each year when nomination ballots are mailed by the University to alumni who have been active members of the alumni association or who have contributed to the University within the past two years or who specifically request a nomination ballot. Approximately 50,000 nomination ballots are mailed. All nominees receiving 50 or more votes are eligible for the election if they consent. Normally between 8 and 12 nominees vie for the three positions. Election ballots are then mailed to the alumni and approximately 14,000 alumni cast their ballots each year.
Agricultural and industrial trustees, also chosen for staggered three-year terms, are elected by specially chosen delegates during the annual commencement week. The agricultural trustee selection process begins around January when the University sends to all county agricultural extension directors the list of agricultural societies which were eligible to send delegates during the previous year. Each county agricultural extension director determines whether the agricultural societies for his county remain eligible and whether there are new societies to be added to the eligibility list. At the time of the district court hearing there were 397 agricultural societies eligible to send delegates. The industrial trustee selection process is similar. The University determines which industrial societies and associations were eligible to send delegates the previous year. The list is sent to five officials who are responsible for updating the list.*fn2 At the time of the district court hearing, 160 mining, manufacturing and engineering societies were eligible to send delegates. Approximately 450 delegates participate annually. In 1977, there were 207 delegates representing agricultural societies, and 198 delegates representing industrial societies.
Our inquiry into state action must begin with a description of the University.
Penn State was created by statute in 1855, 24 P.S. § 2531 Et seq., and was originally known as the Farmers' High School of Pennsylvania. The enabling act provided great detail about the purposes of the school and the subjects to be taught: "the English language, grammar, geography, history, mathematics, chemistry and such other branches of the natural and exact sciences as will conduce to the proper education of a farmer." 24 P.S. § 2542. The statute also established the time and place of the first meeting of the trustees, and directed them to obtain a tract of land and to make improvements thereon for "an institution properly adapted to the instruction of youth in the art of farming . . . ." 24 P.S. § 2541. The statute also set the number of original trustees, specified that the governor, the secretary of the commonwealth, the "principal of the institution," and the president of the state agricultural society shall be ex officio members of the board, and designated the nine other trustees by name. 24 P.S. § 2533. Successors to the original designated trustees were to be elected annually by delegates of each county agricultural society in the commonwealth. 24 P.S. § 2535.
The institution broadened somewhat in 1862 when Congress passed the Morrill Act, which established land grant colleges. 7 U.S.C. § 301 Et seq. Under the Act, Congress provided land and other assistance for state universities that taught both agriculture and mechanical arts, provided that the state agreed to accept the terms and conditions of the congressional mandate. The commonwealth agreed to those conditions by necessary legislation and expanded the size of the board of trustees by subsequent legislation. Annually, trustees adopt the operating budget and determine the level of tuition to be paid by students in the next academic year. The level of tuition is based on estimates of expense and of income from other sources, including the estimated amount of the state appropriation, endowment income, recovery of indirect costs on government contracts and other miscellaneous sources. The commonwealth provides an annual appropriation to the University, representing over 30% Of the total revenues received.*fn3 In addition it makes grants for special projects; students have received substantial scholarship aid from Pennsylvania ranging from $6 million to $9 million annually from 1971 through 1976.
In addition, the Pennsylvania General State Authority (GSA) has provided physical facilities to the University for many years. Since 1968 the GSA has constructed on the campuses of the University educational buildings valued at approximately 95 million dollars. These improvements were made pursuant to statute, 71 P.S. § 1707.4. The GSA holds legal title to these buildings and to the land upon which they are constructed. In every instance, the University has conveyed title to the land by general warranty deed, and utilizes the GSA buildings in its educational functions and for no other purpose.
University employees may be members of the State Employees' Retirement System, 71 Pa.C.S. § 5101 Et seq.; the University pays its employer's contribution into the retirement system fund from its general operating revenues. Roads on University campuses may be constructed ...