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FISCHER v. DRISCOLL

September 14, 1982

JOHN FISCHER
v.
FATHER JOHN M. DRISCOLL, President, Villanova University, DR. ANGELO ARMENTI, Dean, University College, Villanova University, DR. ROBERT LYNCH, Dean, School of Engineering, Villanova University, DR. EDWARD WALLO, Chairman, Department of Civil Engineering, Villanova University



The opinion of the court was delivered by: BRODERICK

 BRODERICK, District Judge.

 In this action, plaintiff John Fischer ("Fischer") has alleged that he was denied his constitutional right to due process under the Fifth and Fourteenth Amendments when defendants, officials of Villanova University, refused to permit him to complete certain classes. Plaintiff bases his claim upon 42 U.S.C. § 1983 and directly upon the Fifth Amendment, contending that the actions by the named defendants constitute "state action" under § 1983 and "federal action" under the Fifth Amendment. Defendants have moved for summary judgment, contending that Villanova University is a private institution and that the conduct of which the plaintiff complains fails to constitute governmental action. For the reasons hereinafter set forth, the Court will grant defendant's motion for summary judgment.

 Plaintiff took the physics course during the Fall 1981 Semester and received a "B". In January, 1982, the plaintiff approached defendant Dr. Edward Wallo ("Wallo"), Chairman of the Department of Civil Engineering at the University, for re-admission into the program but Dr. Wallo would not permit plaintiff's reinstatement in the engineering program. Plaintiff subsequently registered for four engineering courses while remaining enrolled in University College. One of these courses was taught by Dr. Wallo, who upon noting plaintiff's attendance in class, told plaintiff that he could not take the course without Dr. Wallo's permission and that such permission was denied.

 When plaintiff resumed attending classes, Dr. Wallo informed him that he was not duly registered. Plaintiff thereupon tendered a check to the University business office and received a registration validation sticker. In March, Dr. Angelo Armenti ("Armenti"), Dean of University College, informed Mr. Fischer that his son's registration was invalidated because plaintiff lacked Dr. Wallo's permission to enroll in engineering courses. Plaintiff sought administrative review of Dr. Armenti's decision, but was informed that an unwritten Villanova policy required Dr. Wallo's permission before plaintiff, as a student enrolled in University College, could take courses in the School of Engineering's Civil Engineering Department.

 Plaintiff contends that such an "unwritten rule", applied to him after he had attended many classes, violated his right to procedural due process. He also contends that he was denied due process in that he was not afforded an opportunity for administrative review of Dr. Armenti's and Dr. Wallo's decisions.

 Title 42 U.S.C. § 1983 provides:

 
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

 The Fourteenth Amendment of the United States Constitution provides that no state may "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Thus, before a citizen may obtain relief pursuant to 42 U.S.C. § 1983, the conduct complained of must constitute state action, as defined by case law interpreting the Amendment and the statute. See Lugar v. Edmonson Oil Co., Inc., 457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed. 2d 482, 50 U.S.L.W. 4850 (1982); United States v. Price, 383 U.S. 787, 16 L. Ed. 2d 267, 86 S. Ct. 1152 (1966).

 The Fifth Amendment provides that the federal government may not deprive a person of "life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Plaintiff has averred that defendants' actions deprived him of his property interest in obtaining engineering training from Villanova and his liberty interests in being free, once admitted into University College, to enroll in a course of his choice absent a written rule prohibiting such enrollment. It is axiomatic that a plaintiff seeking relief pursuant to the Fifth Amendment must complain of federal governmental action.

 The United States Supreme Court's decision in Rendell-Baker v. Kohn, 457 U.S. 830, 102 S. Ct. 2764, 73 L. Ed. 2d 418, 50 U.S.L.W. 4825 (1982), held that a privately run school that received at least 90 percent of its operating budget from state funds pursuant to state contracts, was not engaged in state action within the meaning of 42 U.S.C. § 1983.

 Rendell-Baker involved a suit by six teachers discharged by a private non-profit educational institution under 42 U.S.C. § 1983, alleging violations of their rights guaranteed by the First, Fifth, and Fourteenth Amendments to the Constitution (50 U.S.L.W. at 4827). The school served "problem" high school students, nearly all of whom were referred to the school by local public school committees pursuant to a specific Massachusetts enabling statute. The state and the cities of origin of the school's students paid the tuition and expenses, thereby accounting for the school's receipt of 90 percent of its funding from government sources. In addition, the school was required to comply with many detailed state regulations. The school also had contracts directly with several governmental entities. However, the Supreme Court held that even heavy dependence upon the state for funds did not make the school's hiring and discharge decisions those of the state. The Court held that a state can be held responsible for the actions of private institutions "only where it has exercised coercive power or has provided such significant encouragement . . . ." (50 U.S.L.W. at 4828). The Court found that receipt of state funding, even proportionately large amounts of state funding, by an institution did not in itself constitute such coercion or "significant encouragement." See also Blum v. Yaretsky, 457 U.S. 991, 102 S. Ct. 2777, 73 L. Ed. 2d 534, 50 U.S.L.W. 4859 (1982) (private nursing home's extensive regulation by state and receipt of state funds did not make nursing home treatment ...


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