The opinion of the court was delivered by: RAYFIEL
The plaintiff, formerly a student at Brooklyn College, was dismissed therefrom on charges hereinafter mentioned. Pleading and conducting his case in person, he commenced this action under Subd. 3 of Section 1343 of Title 28 U.S. Code to obtain redress for the deprivation, without due process of law, of his right to freedom of speech and the equal protection of the law, in contravention of the Fourteenth Amendment of the Constitution of the United States. The answer denies generally the allegations of the complaint and asserts several separate defenses.
The defendants, Board of Higher Education of the City of New York, sued herein as New York City Board of Higher Education, and hereinafter referred to as The Board, Brooklyn College, and the Commissioner of Education of the State of New York, hereinafter referred to as The Commissioner, have moved to dismiss the action on the following grounds:
(1) that the complaint fails to state a claim against the defendants, The Board and Brooklyn College, upon which relief can be granted:
(2) that the plaintiff has heretofore appealed to The Commissioner from decisions of The Board and Brooklyn College on the same grounds as those urged in the complaint, and has been denied relief; and
(3) that the complaint fails to show the deprivation by The Board of Brooklyn College, under the authority of any State statute, ordinance, rule or regulation, of any right, privilege or immunity secured to the plaintiff by the Constitution of the United States, or by any federal statute providing for equal rights of all persons within the jurisdiction of the United States.
Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C., under which this motion was brought, provides, inter alia, that the defense numbered (6) thereunder may, at the option of the pleader, be made by motion 'before pleading if a further pleading is permitted'. While the defendants have already answered the complaint that objection may be disregarded, inasmuch as matters outside the pleading have been presented to the Court, and Rule 12(b) provides that in such an event a motion asserting that defense -- the failure to state a claim upon which relief can be granted -- 'shall be treated as one for summary judgment and disposed of as provided in Rule 56,' of said Rules.
In the case of Boro Hall Corporation v. General Motors Corporation, 2 Cir., 124 F.2d 822, wherein a motion was made to dismiss the complaint, the Court said, at page 823, 'The motion to dismiss the complaint was accompanied by an affidavit which in turn was answered by the plaintiff without raising any material issues of fact. We see no reason why the application should not be treated as one for summary judgment under Section 56 of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c. But even if the motion were regarded as made under Section 12(b) of the rules, we have held that affidavits might be employed. Central Mexico Light & Power Co. v. Munch, 2 Cir., 116 F.2d 85, 87. See also Gallup v. Caldwell, 3 Cir., 120 F.2d 90, 92.' In the instant case, to an even greater extent than in the Boro Hall case, supra, the pleadings were supplemented by numerous letters, documents and exhibits. See also Samara v. United States, 2 Cir., 129 F.2d 594, 597.
The facts, so far as they are beyond substantial dispute, are, briefly stated, as follows: in March, 1955 the plaintiff, who entered Brooklyn College as a student in 1952, was suspended for the remainder of the semester by the Dean of Students for breaches of discipline. Following a period of probation he was reinstated in September, 1955, on condition, however, that he discontinue certain practices and activities, which, in part, had resulted in his suspension.
On September 21, 1956, after several infractions of the conditions of his probation, he was again suspended by the Dean. After each such suspension he appealed to the President of Brooklyn College, whose decision in cases involving appeals from suspensions is final. The President sustained the Dean in each case.
Following his second suspension the plaintiff and his parents wrote several letters to the President and other officials of Brooklyn College respecting his suspension, requesting his reinstatement. He continued, however, to engage in many of the practices and activities which had been the basis of his suspensions, included among which was the deposit by him on December 6, 1956, in staff and student mail boxes at the College of a letter, many thousands of words in length, bearing his signature, and addressed to 'To Whom It May Concern,' containing uncomplimentary comment concerning several officers of Brooklyn College, and their official conduct in the matter of his suspensions.
On December 10, 1956, the plaintiff sent an application to the Dean by registered mail, requesting his reinstatement. The application was referred to the Faculty Committee on Orientation and Guidance of the College for consideration and advice. That Committee held a hearing thereon on December 13, 1956, at which the plaintiff was present. He was permitted to make a statement in his behalf. The Committee after considering the application, and plaintiff's activities and conduct since his first suspension, unanimously recommended to the Faculty Council, of which the President is Chairman, that the plaintiff be dismissed from Brooklyn College.
On December 18, 1956, the Faculty Council approved the recommendation of the Committee on Orientation and Guidance that the plaintiff be dismissed from the College, effective at the end of that semester, and on December 20 the President wrote him, informing him of his dismissal, and advising him that the by-laws of The Board provided that an appeal may be made to it from the decision dismissing him from the College. On January 26, 1957, the plaintiff appealed to The Board.
It should be noted here that the public colleges of The City of New York, of which Brooklyn College is one, constitute a unit of the public school system of the State of New York. Under Section 6202 of the Education Law of the State of New York The Board, a body corporate separate and distinct from the Board of Education of The City of New York, which administers the affairs of the public elementary and secondary school system, is authorized to govern and control those educational institutions in the City which are of collegiate grade. Included among the powers and duties of The Board provided by Section 6202 of said Law is the power to 'prescribe conditions of student admission, attendance and discharge'. The Board has prescribed such conditions, which, so far as they are here pertinent, are contained in Sections 214a, 216 and 217 of its by-laws. Section 214a provides, inter alia, that each student obey all the rules, regulations and orders of the duly established college authorities, and shall conform to the requirements of good manners and good morals. Section 216 provides that, in the event of the violation of such rules, regulations or requirements, the Dean may reprimand the student involved, suspend him for a period not exceeding one term, or deprive him of certain college privileges. He may also recommend the dismissal of the student, but such disciplinary action may be imposed only by the President, or by the votes of a majority of the members of the Faculty Council. Section 217 provides that the student involved in disciplinary action by the Dean or the Faculty Council may appeal to the President, whose decision is final, except in the case of a dismissal, in which event appeal may be made to The Board.
On February 4, 1957, the then Chairman of The Board, the late Joseph B. Cavallaro, wrote the plaintiff, informing him that pursuant to Section 217, supra, The Board would consider his appeal at its next meeting, to be held on February 18, 1957, suggesting that the plaintiff appear on that occasion, and enclosing a copy of the report of the Faculty Committee on Orientation and Guidance, on the basis of which he had been dismissed. The plaintiff and his mother, who asked for leave to speak in his behalf, were ...