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WEISE v. SYRACUSE UNIV.

December 8, 1982

SELENE WEISE, Plaintiff,
v.
SYRACUSE UNIVERSITY, et al., Defendants; JO DAVIS MORTENSON, Plaintiff, v. SYRACUSE UNIVERSITY, et al., Defendants



The opinion of the court was delivered by: MUNSON

Memorandum-Decision and Order

 MUNSON, Chief Judge:

 This case is presently before the Court on defendant's motion for summary judgment, and defendant's alternative motion to dismiss. Originally filed as two separate actions against Syracuse University, much of this case has proceeded in a consolidated manner, and although this Court will treat individual factual differences separately, for all practical purposes the two cases must be consolidated pursuant to Fed. R. Civ. P. 42(a).

 Plaintiffs' claims have received thorough attention from both the district court and Second Circuit. The Court of Appeals decision is incorporated by reference to save repetition of the factual and procedural history. Weise v. Syracuse University, 522 F.2d 397, 10 FEP Cases 1331 (2nd Cir. 1975).

 I.

 Class Action

 Although the Second Circuit remanded the issue of class action certification, the parties have pre-empted district court review by signed stipulation to proceed without class action status. (Stipulation signed November 2, 1979).

 Briefly, this Court must now address plaintiffs' 42 U.S.C. §§ 1983, 1985(3) claims, as well as the Title VII claim.

 The Section 1983 Claim

 The § 1983 claim must be addressed before treating the remaining claims. Since the 1975 decision in Weise, the Second Circuit has been particularly sensitive to the ad hoc review necessary in finding the requisite state action to sustain this civil rights claim.

 This recognition does not diminish the need for consistency in the application of some general analysis in describing the presence of state action. The 1975 Weise case demonstrated two general theories, and summarily discarded one. Noting a prior discussion in Grafton v. Brooklyn Law School, 478 F.2d 1137, 1140 and n.6 (2nd Cir.1973); Powe v. Miles, 407 F.2d 73, 80 (2nd Cir. 1968), a footnote in Weise rejected the possibility that education serves a public function. Weise, supra, at 404, n.6. This position has been more recently supported in Gray v. Project More, Inc., 469 F. Supp. 621, 629 (D. Conn. 1979); Huff v. Notre Dame High School of W. Haven, 456 F. Supp. 1145, 1149-50 (D. Conn. 1978); Stewart v. New York University, 430 F. Supp. 1305, 1312 (S.D. N.Y. 1976).

 The remaining analysis relies upon a finding of a symbiotic relationship between the state and the private institution. Jensen v. Farrell Lines, Inc., 625 F.2d 379, 384-85, 104 LRRM 2516 (2nd Cir. 1980), cert. denied, 450 U.S. 916, 101 S. Ct. 1359, 106 LRRM 2513, 67 L. Ed. 2d 341 (1981), citing, Burton v. Wilmington Parking Authority, 365 U.S. 715, 716, 722, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961); Grossner v. Trustees of Columbia University, 287 F. Supp. 535, 548 (S.D. N.Y. 1968) (symbiotic relationship coupled with the public function analysis).

 Of course this analysis is by nature hopelessly intertwined with factors that involve a finding of a public function. Despite the more recent division into public function and symbiotic relationship. Jensen, supra, at 384; Gray v. Project More, Inc., 469 F. Supp. 621, 626-29 (D.Conn. 1979) (state entanglement and state function approaches); Wagner v. Sheltz, 471 F. Supp. 903, 908-9 (D.Conn. 1979) (looking to functional nexus and for public function); Huff v. Notre Dame High School of West Haven, 456 F. Supp. 1145 (D. Conn. 1978) (recognizing three approaches: state entanglement, state function and state likeness), some district courts in this Circuit have adhered to an earlier five part factoring scheme articulated in Jackson v. Statler Foundation, 496 F.2d 623, 629, 7 FEP Cases 834 (2nd Cir. 1974). Those factors to be weighed are:

 
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 governmental approval of the activity or whether the assistance is merely provided to all without such connotation; 4) the extent to which the organization serves as a public function or acts as a surrogate for the State; and 5) whether the organization has legitimate claims to recognition as a 'private' organization in associational or other constitutional terms.

 Continued use of this interdependent analysis illustrates the need for a subjective factual balancing of all possible factors, rather than narrowly designing a finding based on either public function or symbiotic relationship. Jensen, supra, at 384.

 Before discussion begins, "it is well to remember Judge Friendly's admonition that classification of the particular constitutional right at issue 'must be among the first, if not the very first,' step in making the determination whether the conduct of a private party can be attributed to the State." Wagner v. Sheltz, 471 F. Supp. 903, 907 (D. Conn. 1979), quoting, United States v. Solomon, 509 F.2d 863, 871 (2d Cir. 1975).

 In fact, the Second Circuit's prior treatment of this Weise case outlined the Jackson, supra, five factor analysis, but along with the recognition that it be employed in only certain discriminatory situations. Generally speaking, it has not been considered appropriate in non-discriminatory cases. Brooks v. Flagg Bros., Inc., 553 F.2d 764, 770 (2d Cir. 1977) (noting district court's misapplication of 5 part test in a non-discrimination case). But see, Brooks v. Flagg Brothers, Inc., 404 F. Supp. 1059, 1062-63 (S.D. N.Y. 1975) where Judge Werker noted that the Jackson factors are normally used in discrimination cases, but "they are helpful in delimiting the outer boundaries of state action prerequisites." The court in Statler Foundation found that if the defendant institutions were substantially dependent upon their tax-exempt status, if the government's regulatory scheme was both detailed and intrusive, if the scheme carried connotations of government approval, if the institutions did not have a substantial constitutional claim to be left alone, and if they served some public function, then the district court on remand could find state action. Id. at 1063 n.12.

 Those district court opinions employing the Jackson five-part analysis include the following: Janusaitis v. Middlebury Volunteer Fire, 464 F. Supp. 288, 297-300 (D. Conn. 1979) (found insufficient nexus); Ludtke v. Kuhn, 461 F. Supp. 86, 95, 18 FEP Cases 246 (S.D. N.Y. 1978) (found symbiotic relationship); Stewart v. New York University, 430 F. Supp. 1305, 1311-12 (S.D. N.Y. 1976) (insufficient cumulative effect); and Gilinsky v. Columbia University, 488 F. Supp. 1309, 1311, 32 FEP Cases 219 (S.D. N.Y. 1980), aff'd without opinion, 652 F.2d 53, 32 FEP Cases 232 (2nd Cir. 1981). This Circuit has been consistent in applying differing standards of review in state action inquiries, depending upon the nature of the right involved. Taylor v. Consolidated Edison Co. of New York, Inc., 552 F.2d 39, 42 (2nd Cir. 1977); Brooks v. Flagg Bros., 553 F.2d 764, 770 (2nd Cir. 1977); Jackson v. Statler Foundation, 496 F.2d 623, 629, 7 FEP Cases 834 (2nd Cir. 1974); Weise v. Syracuse University, 522 F.2d 397, 406, 10 FEP Cases 1331 (2nd Cir. 1975); Girard v. 94th St. & Fifth Ave. Corp., 396 F. Supp. 450, 454 (S.D. N.Y. 1975), aff'd, 530 F.2d 66 (2nd Cir. 1976), cert. denied, 425 U.S. 974, 96 S. Ct. 2173, 48 L. Ed. 2d 798 (1976); Madon v. Long Island University, Etc., 518 F. Supp. 246, 249 (E.D. N.Y. 1981); Ludtke v. Kuhn, supra at 96.

 However, it appears that the Jackson, supra, five-factor analysis should be employed where the claim warrants a more strict standard, and hence the closer scrutiny. Girard, supra, at 454.

 It remains unclear following Weise whether sexual discrimination warrants exactly the same scrutiny accorded racial claims. Graseck v. Mauceri, 582 F.2d 203, 208 n.17 (2nd Cir. 1978); Ridgefield Women's Political Caucus, Inc. v. Fossi, 458 F. Supp. 117, 121 n.4 (D. Conn. 1978); cf. Girard v. 94th Street & Fifth Ave. Corp., 396 F. Supp. 450, 454 (S.D.N.Y. 1975) (agreeing with Barrett v. United Hospital, 376 F. Supp. 791, 797 n.26 (S.D.N.Y. 1974), that "the rationale behind the exception for racial discrimination may make it equally applicable to cases involving sex or age discrimination.") But see, Taylor v. Consolidated Edison Co. of New York, Inc., 552 F.2d 39, 43 (2nd Cir. 1977) ("we have found that a challenge to the allocation of a state's tax revenues on sex discrimination grounds may be subject to a higher state action burden."); Janusaitis v. Middlebury Volunteer Fire, 464 F. Supp. 288, 296 (D. Conn. 1979) (holding greater showing of state involvement for state action in all cases but for race and sex discrimination); Stewart v. New York University, 430 F. Supp. 1305, 1311 n.6 (S.D.N.Y. 1976) (expanding the racial discrimination category to include "other invidious class-based discrimination"); Korzenik v. Marrow, 401 F. Supp. 77, 81 (S.D.N.Y. 1975) (holding that "since classifications based upon sex, like classifications based upon race, are inherently suspect and must therefore be subjected to strict judicial scrutiny.") Yet clearly Weise differentiated between the student discipline cases, and cases involving invidious class-based discrimination, concluding that the latter such cases warranted greater leniency in a finding of state action. Weise, supra at 406; see also, Madon v. Long Island University, 518 F. Supp. 246, 249 (E.D.N.Y. 1981).

 However, it appears that a slightly different standard would apply as between race and sex discrimination. The Southern District has recently noted this in reviewing Supreme Court treatment of both kinds of cases, in Spirt v. Teachers Ins. and Annuity Ass'n, 475 F. Supp. 1298, 1312 n.22, 20 FEP Cases 738 (S.D.N.Y. 1979), concluding that perhaps "somewhat more governmental involvement would be required to find state action in sex discrimination cases then in race discrimination cases." But see, Downs v. Sawtelle, 574 F.2d 1, 6 n.5 (1st Cir. 1975) (urging that fundamental rights should receive identical scrutiny).

 This position represents a departure from earlier § 1983 cases, for in Powe, supra at 80, the Second Circuit counseled that all discriminatory policies would be treated similarly. It appears that perhaps the turbulent decade of the sixties and its aftermath spawned litigation which expanded the scope of § 1983, thereby illustrating the need for some differentiation in the treatment of state action. This might explain the position recognizing varying sensitivity to state intrusion adopted in Weise, and followed ...


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