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May 30, 1985

PETER J. SMITH, Plaintiff,

The opinion of the court was delivered by: SIMMONS

 Commencing September, 1980, Peter J. Smith, a 48 year old male, was admitted as a doctoral degree candidate to the Duquesne University Graduate Program in English. Ten months later he was dismissed from the program for academic reasons. Following Smith's dismissal, this civil rights lawsuit was filed.

 In this suit, Smith assails the conditions of his admittance, his grades and classroom treatment as a student, and his dismissal from Duquesne University. Smith complains that the school's conduct violated his constitutional rights to due process and equal protection of the laws. Smith also claims that Duquesne University denied him access to his educational records in violation of the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (1974) [Hereinafter cited as FERPA].

 At the close of discovery, Duquesne University moved for summary judgment asserting that the institution is a private, not public, entity and therefore its actions are not subject to constitutional scrutiny under 42 U.S.C. § 1983. *fn1" Duquesne also contends that Smith's complaint under FERPA cannot be maintained because FERPA grants no federal cause of action to private litigants.


 The facts are undisputed. Duquesne University was founded in 1878 by the Holy Ghost Fathers from Germany. When its doors opened it was known as the Catholic College of the Holy Ghost. Four years later, the school incorporated as the Pittsburgh Catholic College. Subsequently, in 1911, the institution's name was changed to Duquesne University. Today, the school's Corporate name is Duquesne University of the Holy Ghost.

 Duquesne University of the Holy Ghost is a nonprofit corporation which has no capital stock and whose sole stated purpose is to support and maintain the university for the instruction of youth in all branches of a thorough, moral and secular education. Membership in the corporation is limited by corporate bylaws to members in good standing of the religious society within the Roman Catholic Church known as the Congregation of the Holy Ghost and of the Immaculate Heart of Mary.

 The university's corporate board of directors, responsible for oversight and management of the corporation, are elected by members of the corporation. The daily operation of the university is vested in the President, who is the chief executive officer, a Chancellor, various vice presidents, and an administrative council. The administrative council is composed of representatives of the university's officers, faculty members, deans, and members of the student government.

 Most of Duquesne University's operating budget is derived from private sources. The university receives some operational funds from the Commonwealth of Pennsylvania in the form of State Institutional Assistance Grants, but the amounts received are de minimis in comparison to the university's overall operational expenses. *fn2" For example, the university's 1984 operating budget exceeded $40 million, in contrast to the $831,198 state assistance grant the university received against its operating expenses for the 1983-1984 academic school year. The level of funding through state assistance grants is determined by the number of students enrolled at a recipient state institution of higher learning.

 Approximately seventy-five percent of Duquesne University's students receive some form of educational financial assistance from a governmentally sponsored program; mostly low interest guaranteed state loans made directly to the student by private lenders and guaranteed by the state. However, the majority of tuition income received by the university comes from private sources. Additionally, the university and individual professors are periodically awarded grants and contracts to perform research or to finance various educational programs, but these amounts have been limited. For the last five academic years, from 1979-1984, research grants and specific program funding has averaged only $678,122 annually. *fn3"

 Duquesne University receives no government grants or gifts of public funds for the construction of its buildings. But the university has borrowed money from both federal and state governments for building construction. To date, the University has borrowed $8,431,000 from the Housing and Urban Development Authority and $12,795.000 from the Pennsylvania Higher Education Facilities Administration; the balance on those loans are $5,906,000 and $ 7,406,610, respectively.


 a. State Action Requirement.

 The United States Constitution's fifth and fourteenth amendments shield the individual only from governmental action. The "Fourteenth amendment, which prohibits the states from denying federal constitutional rights and which guarantees due process, applies to acts of the states, not to acts of private persons or entities. See Rendell-Baker v. Kohn, 457 U.S. 830, 837, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982), citing, Civil Rights Cases, 109 U.S. 3, ...

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