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April 28, 1980;


The opinion of the court was delivered by: LASKER

Alberta Gilinsky sues Columbia University and several of its officials (collectively, Columbia) on behalf of herself and all other women similarly situated. She alleges that she was denied appointment as a visiting professor of psychology for the academic year 1972-73 and as a tenured professor for the following year in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., 42 U.S.C. § 1981, Executive Order 11246, and the Fifth and Fourteenth Amendments.

Gilinsky's individual action was first tried before the New York State Division of Human Rights. Commissioner Sable found that Columbia had not discriminated against Gilinsky because of her sex. His finding was eventually upheld by the New York Court of Appeals. 39 N.Y.2d 612, 385 N.Y.S.2d 19, 350 N.E.2d 396 (1976), cert. denied, 429 U.S. 1096, 97 S. Ct. 1112, 51 L. Ed. 2d 543 (1977). The record of the state proceedings was admitted into evidence at the trial of this action during which additional testimony was taken. *fn1"

 I. The Fifth and Fourteenth Amendment Claims

 Columbia moved at the close of the presentation of Gilinsky's case to dismiss the claims under the Fifth and Fourteenth Amendments on the grounds that the requisite state action had not been proven. *fn2"

 Gilinsky argues that state action is present under the analysis set forth in Weise v. Syracuse University, 522 F.2d 397, 407 (2d Cir. 1975) (quoting Jackson v. Statler Foundation, 496 F.2d 623, 629 (2d Cir. 1974)). The rule set forth in Weise is that:

"Five factors (are) to be weighed in considering state action claims:
(1) the degree to which the "private' organization is dependent on governmental aid; (2) the extent and intrusiveness of the governmental regulatory scheme; (3) whether that scheme connotes government approval of the activity or whether the assistance is merely provided to all without such connotation; (4) the extent to which the organization serves a public function or acts as a surrogate for the State; (5) whether the organization has legitimate claims to recognition as a "private' organization in associational or other constitutional terms."

 Gilinsky argues that she has met the demands of this formula because (1) Columbia receives substantial federal and state financial funding and grants; (2) Columbia is subject to state laws prohibiting sex discrimination; (3) the state has tacitly approved Columbia's discriminatory practices; (4) Columbia provides college and university courses; and (5) Columbia has harmed the public by committing the wrongs alleged here.

 The only factor arguably present here is the first, the receipt of financial assistance. As to the others, merely being subject to the laws of the State or the United States is clearly insufficient to show that action in violation of those laws is state action. Similarly, "tacit" approval by the State does not convert action by a private party into state action. By providing higher education, Columbia may place itself before the public eye and attain a measure of public influence, but it does not thereby act as a surrogate of the State in the performance of its educational mission. Indeed, in today's market, it is a competitor in the sale of its services with such institutions as the City University of New York and the State University of New York.

 As to Columbia's receipt of public funds, it is unnecessary, for the purpose of determining whether its action is state action, to scrutinize the degree to which it is dependent on federal and state funding. Without a showing that the State or federal government was " "involved . . . with the activity that caused the injury,' " government support is insufficient to establish state action. Weise v. Syracuse University, supra, 522 F.2d at 405 (quoting Powe v. Miles, 407 F.2d 73, 81 (2d Cir. 1968)). As noted by Judge Frankel in another case involving Columbia,

"receipt of money from the State is not, without a good deal more, enough to make the recipient an agency or instrumentality of the Government. Otherwise, all kinds of contractors and enterprises, increasingly dependent upon government business for much larger proportions of income than those here in question, would find themselves charged with "state action' in the performance of all kinds of functions we still consider and treat as essentially "private' for all presently relevant purposes."

 Grossner v. Trustees of Columbia University, 287 F. Supp. 535, 547-48 (S.D.N.Y.1968).

 Accordingly, the motion to dismiss the claims under the Fifth and Fourteenth Amendments is granted.

 II. The Class Claim

 Columbia moved at trial to dismiss the claim of discrimination against the class *fn3" arguing that hiring statistics establish that the Department of Psychology has not discriminated against women since Title VII became applicable to Columbia in 1972.

 Gilinsky bases the class claim "upon Columbia's own statistics and documents to prove the pattern or practice of disparate treatment of women in hiring by the Psychology Department both pre- and post-Act." (Letter from Plaintiff's Attorney, November 7, 1979). Those statistics, which are both pre- and post-1972, show that as to tenured faculty, the Psychology Department had no tenured women until it appointed one in academic year 1977-1978, and that that appointment raised the percentage of tenured women in the department from zero to nine. As to nontenured faculty, in 1972, the Department had one woman out of a total of six (or 16.66%) nontenured professors, compared to 28% women at Columbia's "Feeder" School Pool, and in 1978, two out of seventeen nontenured faculty appointments were women. *fn4"

 These statistics are obviously heavily influenced by the pre-1972 hiring practices of the department since the only post-1972 statistics on which Gilinsky relies are cumulative, and represent the net result of hiring practices that extended well before 1972.

 However, the probative value of pre-1972 statistics is at best minimal. Since the 1972 amendments to Title VII making it applicable to educational institutions did not alter substantive rights retroactively, Weise v. Syracuse University, supra, 522 F.2d at 411, prior to that time "(Columbia) University was free, as far as Title VII was concerned, to discriminate in its employment practices." Id. at 410.

 As the Supreme Court stated in Hazelwood School District v. United States, 433 U.S. 299, 309, 97 S. Ct. 2736, 2742, 53 L. Ed. 2d 768 (1977) (footnote omitted),

"A public employer who from that date forward made all its employment decisions in a wholly nondiscriminatory way would not violate Title VII even if it had formerly maintained an ...

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