(concurring) :
I fully agree that the district court erred in dismissing the complaint for want of jurisdiction. However, although I recognize that the question of state action here is a close one and that resolution in plaintiffs’ favor would not be compelled by the dictum in Powe v. Miles, 407 F.2d 73, 81 (2 Cir. 1968), even if that were binding, I would uphold their claim in that respect and would remand for consideration on the merits rather than for the elaborate preliminary inquiry which my brothers direct.
Until 1969 New York was content to leave the control of conduct on the campuses of private colleges to private colleges, save as all this might be governed by New York’s general law of crime, tort and contract. We held in Powe v. Miles, swpra, 407 F.2d at 79-82, that so long as New York thus stood aside, the enforcement of discipline by a private college was not state action despite New York’s unusually extensive regulation of educational standards and the grant of state aid. Not satisfied with that situation, the 1969 Legislature moved in, as it had every right to do. It directed the governing boards of all colleges to “adopt rules and regulations for the maintenance of public order on college campuses and other college property used for educational purposes and provide a program for the enforcement thereof.” The colleges were further ordered to set forth in these regulations the penalties for violation, which “shall include provisions for” “suspension, expulsion or other appropriate disciplinary action.” Henceforth, it can thus be forcefully argued, a private college in promulgating rules and regulations for the maintenance of order on the campus is exercising a power emanating from the legislature even though it could have acted on its own, as many in fact had done.1 This, as it seems to me, is the teaching of Judge Tuttle’s well-known opinion in Boman v. Birmingham Transit Co., 280 F.2d 531 (5 Cir. 1960), although the plaintiffs’ case there was strengthened by the quick succession of repeal of a city ordinance and the promulgation of a Transit Company regulation, both requiring seating on the basis of race, and by the company’s need of a franchise to use the city streets.2
Two sets of considerations weigh with me in favor of a decision that the state action line has here been crossed, irrespective of what the inquiry directed by the majority may reveal.
Plainly one objective of the New York legislation was to deter student disturbances by the clear announcement of rules of conduct and of the penalties for disobedience. That is fair enough; indeed it is a principal justification for our system of criminal sanctions. But if the state wishes the hpuefita of such deterrence in private colleges, must it not accept responsibility for preventing overdeterrence by excessive sanctions and lack of fair procedure for enforcement ?. Furthermore, and perhaps still more important, do not rules of private colleges framed in response to a state mandate have a significantly different symbolic appearance man rules formulated in the absence of such a statute? It is pertinent that the Rules and Regulations of Wagner College here at issue begin with a statement that a committee had met to prepare them “in accordance with the newly enacted New York Public Law 129-a, which required such a document,” then set out § 6450 of the Education Law in full text, and include a copy of the required report to the Department of Education. The circulation of such a document fits rath*1127er precisely the sentence from Griffin v. Maryland, 378 U.S. 130, 135, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964), that my brother Kaufman quotes. Furthermore, objections to the very existence of a detailed code would be met by the answer that one was state-compelled. When a state has gone so far in directing private action that citizens may reasonably believe this to have been taken at the state’s instance, state action may legitimately be found even though the state left the private actors almost complete freedom of choice. ——
That, as it seems to me, must be the rationale of Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). Although the Authority had not directed the Eagle Coffee Shoppe to discriminate against blacks, it had placed thp-Shoppe in a position in which citizens could reasonably view the restaurant’s acts as authorized by an agency... of ... the. state-. Here, as in that case, “the State has so far insinuated itself into a position of interdependence * * * that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so ‘purely private’ as to fall without the scope of the Fourteenth Amendment,” 365 U.S. at 725, 81 S.Ct. at 862. It is arguable — indeed, I have argued 3 — that racial discrimination is so peculiarly offensive and was so much the prime target of the Fourteenth Amendment that a lesser degree of involvement may constitute “state action” with respect to it than would be required in other contexts — a consideration that might also serve to distinguish the Birmingham Transit case if a distinction were desired.4 But the ordinary citizen must find it puzzling enough that there is a constitutional limit on the regulation of student conduct at Buffalo and Stony Brook but none at Columbia and Cornell that courts should not be averse to recognizing state action with respect to the latter when New York has departed, even in a rather minor way, from the hands-off policy it followed until 1969.
In maintaining that the complaint should be decided on the merits, I would not wish to be understood as intimating any view what the decision should be. As held in Powe v. Miles, supra, 407 F.2d at 83-85, neither the First Amendment nor the due process clause of the Fourteenth prevents reasonable regulation of student protests by educational institutions, including summary suspension when that is deemed necessary to prevent a situation from getting out of hand. See generally C. Wright, The Constitution on the Campus, 22 Vand. L. Rev. 1027 (1969), and Judge Blackmun’s fine opinion in Esteban v. Central Missouri State College, 415 F.2d 1077, 1088-1090 (8 Cir. 1969).
. See O’Neil, Private Universities and Public Law, 19 Buffalo L.Rev. 155, 185 (1970), forecasting the very problem that has here arisen and advocating an affirmative answer to the question of state action.
. But see, as to the uncritical character of the latter, Public Utilities Comm’n of District of Columbia v. Pollak, 343 U.S. 451, 462, 72 S.Ct. 813, 96 L.Ed. 1068 (1952).
. Friendly, The Dartmouth College Case and the Public-Private Penumbra 26 (1968).
. See C. Black, “State Action,” Equal Protection, and California’s Proposition 14, 81 Harv.L.Rev. 69 (1967).