Before Friendly, Chief Judge, Hays, Circuit Judge, and Jameson,*fn* District Judge.
This appeal is from an order of the District Court for the Eastern District of New York dismissing for want of jurisdiction a civil rights suit brought by two students expelled from Brooklyn Law School, a private non-profit institution, for scholastic deficiency, on the ground that the Law School was not engaged in state action. It raises, as did Powe v. Miles, 407 F.2d 73 (2 Cir. 1968) and Coleman v. Wagner College, 429 F.2d 1120 (2 Cir. 1970), the question whether various involvements of the State and City of New York with the Law School have converted what on its face was private action into action "under color of any State law, statute, ordinance, regulation, custom, or usage" within 42 U.S.C. § 1983.*fn1 The frequency with which such questions now arise has not made the task of giving a principled answer any easier.
Brooklyn Law School, originally a division of St. Lawrence University, became a wholly independent school in 1941. It operates under a charter granted by the New York State Board of Regents.*fn2 It has adopted policies and practices entitling it to be considered an "approved law school" within former Part 523 of the Rules of the New York Court of Appeals relating to the Admission of Attorneys and Counselors at Law*fn3 so that, under former § 521.1, now § 520.4(a), a graduate is eligible to take the state bar examination without having studied for four years in a law office.
Plaintiffs' claims, as stated in the complaint and their affidavits in reply to defendant's motion for summary judgment,*fn4 are as follows:
Plaintiff Grafton commenced his studies at Brooklyn Law School in the fall of 1969 and achieved a good grade average during his first semester. He became a staff member of The Justinian, the school newspaper, and wrote an article exposing underrepresentation of blacks in the student body. In the spring of 1970 he vigorously participated in antiwar activities in regard to the conduct of the war in Southeast Asia. The Law School granted a request voiced by many students that, in order to permit participation in such activities, the examinations that would normally have been given in the spring of 1970 be postponed for those who so requested until September. For this semester Grafton, who made such a request, received a D average which included 6 points of F out of a total of 13, and was given a "final personal warning" by the Assistant Dean. Grafton claims that grades on the September examinations were generally lower than those in June and that this was due to retaliation by the faculty against anti-war activities.
In the fall of 1970 Grafton was elected editor-in-chief of The Justinian. During his tenure it published several controversial articles including a reprint of a scathing column in the New York Post relating to the work habits of state judges and the results of a poll indicating the opinion of a large majority of the students that the new dean should not be selected from the administration or faculty. For the fall semester of 1970-71 Grafton received another D average; this included an F in a 3-credit course in taxation. Grafton claims that the taxation final examination was so contrived that the grading professor could pass or fail any student as he desired, and that staff members of The Justinian received lower grades than others taking the same course.*fn5 Grafton was dropped as a student on February 24, 1971, for the stated reason of failure to maintain the minimum required scholastic average.
Plaintiff Silversmith began his studies at Brooklyn Law School in September 1967, was dropped after the first year for deficient scholarship, but on the basis of an assertion that his attention span had been improved by psychotherapy was readmitted in the fall of 1969 on condition that he maintain a C average. He also became a member of The Justinian staff and an anti-war activist. In his first year, in courses he was taking for the second time, he more than achieved the required C average. In the fall semester of 1970-71, taking new courses, he fell far below this, with 3 credits of F, 4 of D, and 2 of C, and was dropped. He asserts this was in retaliation for his anti-war activities.
Applications by both plaintiffs for readmission were denied after hearings. These were stenographically recorded but after their dismissals plaintiffs were refused access to their examination papers.
Plaintiffs assert that the Law School's conduct violated their constitutional rights to free speech and representation by counsel, guaranteed by the First and Sixth Amendments as made applicable to the states by the Fourteenth, and deprived them of liberty and property without due process of law in violation of the Fourteenth Amendment. There is no need for us to consider the merits of these claims since we hold, as did the district judge, that the actions of the Law School in dismissing and refusing to reinstate the plaintiffs were not "under color of any State Law, statute, ordinance, regulation, custom or usage," 42 U.S.C. § 1983.
Many of plaintiffs' contentions run counter to the portion of our opinion in Powe v. Miles, supra, 407 F.2d 79-82, dealing with the liberal arts students at Alfred University. We there rejected the claim that the furnishing of higher education necessarily constitutes state action because it is a "public function" as that term has developed from Marsh v. Alabama, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946), and related cases. We see nothing in doctrinal developments since 1968*fn6 or in the facts here to call for a different result on that score. The circumstance that we are here dealing with a law school rather than a liberal arts college does not make law teaching "governmental in nature." To be sure, law students may become the subject of state action when they apply to the state for admission to the bar, see Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957); Konigsberg v. State Bar of California, 366 U.S. 36, 81 S. Ct. 997, 6 L. Ed. 2d 105 (1961); In re Anastaplo, 366 U.S. 82, 81 S. Ct. 978, 6 L. Ed. 2d 135 (1961); Law Students Civil Rights Research Council Inc. v. Wadmond, 401 U.S. 154, 91 S. Ct. 720, 27 L. Ed. 2d 749 (1971), or after they have achieved admission, see Cohen v. Hurley, 366 U.S. 117, 81 S. Ct. 954, 6 L. Ed. 2d 156 (1961); Spevack v. Klein, 385 U.S. 511, 87 S. Ct. 625, 17 L. Ed. 2d 574 (1967). But the mere fact that a school is giving instruction the successful completion of which affords one, and the more generally desired, path to the taking of a state bar examination,*fn7 does not make its functions any more governmental than the imparting of the pre-legal instruction which is also required, Rules of the Court of Appeals § 520.3. See Developments in the Law-Academic Freedom, 81 Harv.L.Rev. 1048, 1060-61 (1968).
In Powe, supra, 407 F.2d at 81, we likewise rejected the contention that New York's regulation of educational standards under § 207 and other sections of the Education Law in institutions of higher learning caused their acts, in that case the disciplining of students, to constitute state action. Again we find nothing in doctrinal development*fn8 or in the special circumstances of this case to call for a different conclusion. The regulations issued by the Commissioner of Education for Schools of Law, § 52.17, are no more detailed than those for liberal arts colleges. The regulations do require a law school in New York to maintain "a minimum qualitative requirement for graduation," § 52.17(h), as well as certain quantitative requirements with respect to the physical plant and the teaching staff. But we do not consider this bland provision, commanding only what would be done voluntarily by any law school worthy of the name, as implicating the state in the administration of an examination system, as we thought the disciplinary regulations required by § 6450 of the Education Law might have done*fn9 in Coleman v. Wagner College, supra, 429 F.2d at 1120.
While Powe v. Miles, supra, 407 F.2d at 81, also took a negative view with respect to the relevance of the financial aid given to the liberal arts college in determining state action, plaintiffs' claims here are somewhat more substantial. The financial aid is of two sorts:
One is that the present building of Brooklyn Law School is on a site acquired from the City of New York at a public sale in 1965 where bidding was restricted to "a non-profit corporation... for the construction of educational facilities" and the Law School, as the only bidder, bought the land for the upset price of $750,000, allegedly far below its real value.*fn10 But the mere grant of property to assist the construction of an educational facility has not been thought sufficient to convert it from a private into a public institution. In the first important case where the Supreme Court considered that issue, although not, of course, directly in the context of "state action," Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat. ) 518, 4 L. Ed. 629 (1819), the College had been the beneficiary of lands of "great value" granted by the states of Vermont and New Hampshire, 4 Wheat. at 538. However, this did not interfere with Chief Justice Marshall's concluding that Dartmouth's trustees and professors were not "public officers, invested with any portion of political power, partaking in any degree in the administration of civil government, and performing duties which flow from the sovereign authority." 4 Wheat. at 634. Although the establishment clause of the First Amendment prohibits many types of governmental assistance which would scarcely suffice to make the receiving agency a state instrumentality under 42 U.S.C. § 1983, see, e.g., Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), construction grants to religious educational institutions for secular purposes have been sustained. Bradfield v. Roberts, 175 U.S. 291, 20 S. Ct. 121, 44 L. Ed. 168 (1899); Tilton v. ...