Friendly and Kaufman, Circuit Judges, and McLean, District Judge.*fn* Friendly, Circuit Judge (concurring).
IRVING R. KAUFMAN, Circuit Judge:
This case presents an interesting variation on the familiar theme of state action. A not uncommon method of establishing the presence of state action is to show that a private organization has undertaken to perform functions peculiarly "public" in nature and traditionally entrusted to the state. When a state acquiesces in the governing of a town by a private company or permits a political party to control a primary election, it may expect to be held responsible for the acts of those performing state functions. See Marsh v. Alabama, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946); Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757, 88 L. Ed. 987 (1944); Developments in the Law -- Academic Freedom, 81 Harv. L.Rev. 1045, 1060-61 (1968) (public function theory applied to education). The approach to state action pressed upon us in this case is the converse of the public function doctrine. The state has intervened in the performance of a function traditionally entrusted to private organizations, the maintenance of internal order by private universities. By so doing, we are told, it has subjected the imposition of disciplinary sanctions by private colleges and universities to scrutiny under the fourteenth amendment.
Having put the question presented to us in perspective, we now distill the following factual account from the complaint, affidavits and testimony at a hearing held to determine whether an order to show cause and a temporary restraining order should be issued. The basic outline follows countless similar scenarios enacted on college campuses across the country. In April 1970, the twenty-four plaintiffs were students at Wagner College, a privately supported college affiliated with the Lutheran Church and located on Staten Island in New York City. All were members of "Black Concern," a campus organization devoted to furthering the interests of blacks and other ethnic group students at Wagner. The incident which occasioned their expulsion commenced shortly before noon on April 23, when a group of students including the plaintiffs visited the office of Dean Haas, Dean of the College, for the purpose of arranging a meeting with Wagner's President, Dr. Davidson. Dean Haas made an effort to communicate with Dr. Davidson but was unsuccessful. At no time while they were present in his office, the students tell us, was Dean Haas physically restrained, nor did he request that they depart or threaten disciplinary measures.
Other members of the college's staff, however, seem to have viewed the students' presence in Dean Haas's office in a different light. Dean of Students Maher, who apparently had primary responsibility for student discipline, requested the plaintiffs to vacate the office, and at 12:45 p.m. they were warned that unless they did so within ten minutes they would be suspended. The students, nevertheless, failed to leave Dean Haas's office. At 4:00 p.m. Dean Maher stated in writing that all students in the office were suspended for the remainder of the year; that Dean Haas's detention by the students would be referred to the police if he were not freed immediately; and that the students would be expelled if they did not leave the office within an hour.
Dean Haas testified that Maher's statement was passed in to the office together with a copy of the rules and regulations for the maintenance of public order adopted by the college following the enactment of New York State Education Law, McKinney's Consol. Laws, c. 16, section 6450.*fn1 This section required every college in the State of New York to file with the regents and the commissioner of education "rules and regulations for the maintenance of public order on college campuses." And "the penalties for violations of such rules and regulations [were to] be clearly set forth therein" and could include "suspension, expulsion or other appropriate disciplinary action" for student violators. Colleges which failed to file such rules and regulations lost their eligibility for state aid to education.
Despite Dean Maher's warning, the plaintiffs refused to leave Dean Haas's office. We are also told that Dean Haas remained until 7:15 p.m., and before his departure, allegedly granted the students permission to utilize the office for a meeting with their attorneys. This meeting was concluded at about 10:00 p.m., and the students then left the office.
The College, thereafter, proceeded to carry out its ultimatum. On April 25, the twenty-four plaintiffs and three other students who had been present in the office received notices of expulsion. The notices did not specify the college rule the students were alleged to have violated, though they did set forth the procedures for an appeal to the Faculty Counsel. The students were required to leave the Wagner campus by 5:00 p.m. April 27, a deadline prior to the time the Faculty Counsel could hear their appeals.
After failing to convince the College to stay the order requiring them to depart from the campus, twenty-four of the expelled students brought this action in the Eastern District of New York. The students alleged that the procedures employed by the college in issuing the expulsion orders did not comport with the requirements of due process. Moreover, based upon allegations of college hostility toward black students and its failure to expel white students who had engaged in similar demonstrations, the expulsions were claimed to have been in violation of the equal protection clause of the fourteenth amendment. The complaint sought injunctive relief ordering the college to reinstate the students pending a hearing, to conform its hearing procedures to the requirements of due process, and to refrain from racially discriminatory expulsions. After a hearing which appears to have been restricted to the question of state responsibility for the imposition of disciplinary sanctions by Wagner College, the district court declined to issue an order to show cause and a temporary restraining order and, sua sponte, dismissed the complaint for want of jurisdiction.*fn2
On appeal, the students do not urge that all of the actions of the administrative staff of Wagner College, an institution affiliated with a religious denomination and supported almost entirely by private funds, are actions of the state. Perhaps this is so because we rejected a similar contention in Powe v. Miles, 407 F.2d 73 (2d Cir. 1968). Instead, the appellants seize upon Judge Friendly's dictum in Powe that "state action would be * * * present [in a case involving campus demonstrations] if New York had undertaken to set policy for the control of demonstrations in all private universities."*fn3 407 F.2d at 81. By enacting section 6450, they argue, the state legislature did undertake to set policy for dealing with campus demonstrations and, in fact, became involved with the regulation of the very activity by which the plaintiffs claim to have been unjustly injured -- the imposition of disciplinary sanctions for offenses against the public order on college campuses.
The appellants' interesting argument is not without some support. In several instances, public regulation of private organizations has been adjudged a basis for a finding of state action. The Supreme Court has determined that a privately-owned and publicly-regulated transit company's practice of broadcasting radio programs on its buses and trolleys was susceptible to challenge as a "state" action. Public Utilities Commission of District of Columbia v. Pollak, 343 U.S. 451, 72 S. Ct. 813, 96 L. Ed. 1068 (1952). The Public Utilities Commission of the District of Columbia, the regulatory agency involved in Pollak, licensed and closely supervised Capital Transit's service. The Commission had, in fact, granted specific approval to the challenged practice. Similarly, a political party required to perform certain significant duties by law and to conform its internal organization to statutory standards was not permitted to evade the fourteenth amendment's proscription of racial segregation in the conduct of primary elections.*fn4 Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757, 88 L. Ed. 987 (1944).
But, this case differs in material respects from the cited cases. Neither the New York legislature, the regents, nor the commissioner of education ever granted approval to the particular conduct sought to be challenged, as had the Public Utilities Commission in Pollak. See Developments in the Law -- Academic Freedom, 81 Harv. L. Rev. 1045, 1058 (1968). Nor, in our view, was Wagner College's expulsion of twenty-four students for participation in a campus demonstration as closely tied to traditional governmental functions as was the conduct of primary elections by the Democratic party of Texas in Smith v. Allwright. Moreover, it appears to us that the "regulation" of college discipline embodied in section 6450 appears almost devoid of meaningful content. Colleges are not required to secure approval of rules and regulations drafted pursuant to the section but merely to file them with the designated officials. The statute does not proscribe specific activities or types of conduct as violations of the public order of the campus. No penalty is designated; although college officials are required to have the sanction of ejection (and, in the case of students and faculty members, an "appropriate disciplinary action") at their disposal, they are not required to use it. One wonders whether rules and regulations consisting solely of the statement that any individual guilty of a transgression against the public order of the campus shall be required to give the Dean of the College a rose and a peppercorn on Midsummer's Day would satisfy the literal command of the statute in all respects. Read in this manner, the statute does little more than call upon the college administrators to reconsider the problem of student discipline and to place the results of this reconsideration on record with certain officials of the State of New York. If the statute is applied in accordance with its literal meaning, regulations filed pursuant to its provisions and disciplinary proceedings instituted pursuant to these regulations are the product and responsibility of private individuals and not of the state.
We are, however, cognizant of the possibility that the statute may have been intended, or may be applied, to mean more than it purports to say. More specifically, section 6450 may be intended or applied as a command to the colleges of the state to adopt a new, more severe attitude toward campus disruption and to impose harsh sanctions on unruly students. The Governor's Memorandum approving section 6450 referred to an "intolerable situation on the Cornell University Campus" and spoke of "the urgent need for adequate plans for student-university relations." 2 McKinney's 1969 Session Law, p. 2546 (emphasis added). Several other bills pending in the New York legislature while section 6450 was under consideration suggest that the statute was enacted in an atmosphere of hostility toward unruly student demonstrators and of resolve to make disruption costly for the participants.*fn5 If these considerations have merit and section 6450 was intended to coerce colleges to adopt disciplinary codes embodying a "hard-line" attitude toward student protesters, it would appear that New York has indeed "undertaken to set policy for the control of demonstrations in all private universities" and should be held responsible for the implementation of this policy. Powe v. Miles, 407 F.2d 73, 81 (1968). Since we cannot resolve this question on the record before us, we conclude that the district court acted too hastily in dismissing the complaint and, consequently, remand for a further hearing at which the plaintiffs may introduce evidence to establish that section 6450 represents a meaningful state intrusion into the disciplinary policies of private colleges and universities.
Of the factors to be explored on remand, several would seem of particular importance.*fn6 Most significant are the actions of the state officials with whom the rules and regulations are to be filed. If these officials were to regard their function as more than a ministerial task, and, as an illustration, believed themselves empowered to prevent regulations from being filed because of substantive "inadequacies," or exercised any other influence upon the content of regulations filed pursuant to section 6450, they would provide strong indicia of state action. Less obvious in its significance is the attitude of the college administrators required to draft regulations by the statute. We would ordinarily be loath to suggest that state action can arise from a private individual's mistaken notion that his acts have the imprimatur of the state. Cf. Griffin v. Maryland, 378 U.S. 130, 135, 84 S. Ct. 1770, 12 L. Ed. 2d 754 (1963) ("If an individual is possessed of state authority and purports to act under that authority, his action is state action") (emphasis added). A reasonable and widespread belief among college administrators, however, that section 6450 required them to adopt a particular stance toward campus demonstrators would seem to justify a conclusion that the state intended for them to pursue that course of action. And this intent, if present, would provide a basis for a finding of state action. We discern several possible means of determining the attitude of college administrators toward the ...