Further removed from the Commonwealth are institutions which have kept their academic gowns almost completely unsullied by contact with the Commonwealth. I think Swarthmore, Haverford and Bryn Mawr may be examples of that, although there has been no development of this on the record before me. Suffice it to say, there are certain institutions which do not receive formal appropriations of Commonwealth funds as a generalized mode of support, although they may be objects of particular grants or contractual relationships which are not relevant to the question here.
Closer to the core of the Commonwealth are at least two other sets of institutions. Penn State University, the details of whose structure and financial posture I am not familiar with is, as I understand it, closer to the total dominion of the Commonwealth than the University of Pittsburgh and Temple. Similarly, the state colleges are, in effect, as I understand it, under the close direction of the Secretary of Education.
Now, Temple pursuant to the 1965 legislation, had its charter amended to change the name of the institution to "Temple University of the Commonwealth System of Higher Education."
Its board of trustees was also restructured. There are now thirty-six voting members of the board pursuant to state legislation, plus three ex officio members of the board. The three ex officio members are the Mayor of the City of Philadelphia, the Governor, and the Superintendent of Public Instruction. Four members of the board of trustees are appointed by the Governor with the advice and consent of two-thirds of the Senate; four are appointed by the President pro tempore of the Senate; and four by the Speaker of the House. The legislation does not provide the mode of selecting the other twenty-four members of the board of trustees but does specify their terms. In the trustees is vested "the entire management, control and conduct of the instructional, administrative and financial affairs of the university." § 2510-5.
The university, under the governing legislation, is obliged to "maintain such tuition and fee schedules for Pennsylvania resident and non-Pennsylvania resident full-time students as are set forth annually in the act of the General Assembly which makes appropriations to Temple University." § 2510-6.
Furthermore, the legislation provides that 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. In accordance with legislative appropriations made as provided by law, the Commonwealth may, by agreement with the board of trustees, acquire lands, erect and equip buildings, and provide facilities for the use of the university." § 2510-7. The reference to "land grant institutions" in § 2510-7, is a reference which, as I understand it, includes schools such as Penn State University.
The legislation also authorizes the board of trustees to issue bonds in the name of the university, and it is specified that those bonds "shall at all times be free from taxation within the Commonwealth of Pennsylvania." § 2510-9(c).
The president of the university is required annually to make a report on the affairs of the university to the trustees who are required to submit that report to the Governor and the General Assembly. § 2510-10.
The opinion in Isaacs describes the monies appropriated to Temple University from 1965 forward to 1972-3. Those sums rose from 23 percent to 33.7 percent of the university's operating income.
Judge Higginbotham reviewed these factors and many others in his opinion in Isaacs and looked at them through the prism of the Supreme Court's decision in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961). In that case the Supreme Court held that the Wilmington Parking Authority, an agency of the City of Wilmington, hence, the State of Delaware, was constitutionally accountable for the racially discriminatory refusal of the Eagle Coffee Shop, which rented space from the Wilmington Parking Authority, to accept black patrons.
Certainly the "activities, obligations and responsibilities" of the Commonwealth are many and varied in the instant case. It has incorporated Temple into its own system of higher education. It has renamed Temple. Through its elected officials, it appoints one-third of Temple's Board of Trustees. It sets fee and tuition schedules for Temple's students and appropriates millions of dollars to Temple to enable the institution to maintain those schedules. It has funded a sizable portion of Temple's present capital development and plans to fund an overwhelming share of the institution's projected capital development. Through an extensive audit, it holds Temple accountable for the expenditure of the funds it has appropriated to the institution. It enjoys a right of review over Temple's budget generally. It has authorized Temple to issue tax-exempt bonds. Finally, it requires Temple's chief executive officer to file annual reports on all of the institutions affairs, "instructional, administrative and financial." In my judgment, the present record presents a picture of Commonwealth participation and involvement that is far more extensive than the "activities, obligations and responsibilities" of the parking authority that contributed to the result in Burton.
According to the Court, the unique relationship between the restaurant and the parking authority conferred on both, in addition to the normal consideration attendant upon any lessor-lessee relationship, "an incidental variety of mutual benefits." 365 U.S. at 724, 81 S. Ct. at 861. The great bulk of the mutual benefit in the instant case can scarcely be described as "incidental." They were clearly visualized by both parties beforehand and deliberately incorporated into the Act. Two major benefits accrue to the Commonwealth: through Temple, it is able to provide relatively inexpensive higher education for its residents in southeastern Pennsylvania; and, again through Temple, it is able to discharge that public responsibility at far less cost to itself than if it had to establish a similar institution on its own. 385 F. Supp. at 488-89.