Arthur Steier v. New York State Education Commissioner, New York City Board of Higher Education and Brooklyn College

MOORE, Circuit Judge

(concurring in the result).

Although I agree with Judge Gibson that the order appealed from should be affirmed, I do not believe that the district court lacked jurisdiction. It is also my view that summary judgment was properly granted in favor of defendants because the record before Judge Rayfiel reveals no material issue of fact requiring a trial.

Plaintiff brought his action under 28 U.S.C.A. § 1343(3), which provides as follows:

“The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
* * * •» *
“(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; * *

In a highly adverbial1 complaint, plaintiff sought relief in the District Court under the Fourteenth Amendment of the United States Constitution, placing his grievances within the categories of “Deprivation of Liberty,” “Denial of Due Process” and “Refusal of Equal Protection.” He alleged that he had been unconstitutionally dismissed as a student of Brooklyn College by public authorities in violation of this Amendment. He sought the aid of the Federal Courts to reinstate him as a student or to force the Faculty Council of Brooklyn College to give him what he calls “a trial, incor*19porating adequate procedural safeguards.” The three defendants are New York State Education Commissioner (Commissioner), New York City Board of Higher Education (Board), and Brooklyn College (College). Defendants Board and College answered the complaint. The Commissioner moved to dismiss the action for lack of jurisdiction over the subject matter. Board and College joined in the Commissioner’s motion and moved to dismiss the complaint on the additional grounds that it did not state a claim and that it failed to show a deprivation under color of any State law, statute, ordinance, regulation, custom or usage by the Board and College of any right, privilege or immunity secured to plaintiff by the Constitution of the United States, or by any act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States,

Attached to the Commissioner’s motion were documents and affidavits which disclosed the material facts relating to plaintiff’s alleged grievances, the many hearings granted to plaintiff, the decisions thereon, and the evidence in support thereof. Having this mass of material before him, the trial court quite properly turned the motion into one for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. and granted judgment dismissing the complaint.

Plaintiff has, in substance, alleged that he has been deprived, under color of the Education Law of New York State and the by-laws of the Board of Higher Education, of various rights secured to him by the Fourteenth Amendment; that he was denied the equal protection of the laws when dismissed from Brooklyn College through a malicious, arbitrary and unreasonable construction and application of the by-law requiring that students “shall conform to the requirements of good manners and good morals * * *”; and that he was deprived of his right to public education without due process of law, in that during his various interviews and hearings he did not enjoy the right to cross-examine witnesses, object to the admissibility of evidence, and the other procedural safeguards guaranteed to defendants in criminal prosecutions. He also claimed that his right of free speech had been impaired.

While it is true that the Fourteenth Amendment protects individuals against State action which constitutes a purposeful discrimination not based on a permissible classification, the record reveals no such discrimination in this case. The officers of Brooklyn College dismissed plaintiff in furtherance of a policy reasonably calculated to advance a legitimate interest of the State. It was the duty of the College Administration to maintain discipline and an atmosphere conducive to learning. Plaintiff’s overzealous campaign for the causes which he espoused must have had a disruptive effect on the environment of both student body and faculty. It was, therefore, incumbent upon the Administration to concern itself with plaintiff’s activities as they affected the welfare of the College as a whole. When he persisted in his agitating behavior after suspension and reinstatement it was not so unreasonable to dismiss him that deprivation of constitutional rights resulted. Broad discretion as to disciplinary matters must be vested in a college faculty and the administrative officers. If every time a student were suspended for some misconduct such as, for example, overuse of alcoholic beverages or wilful overeutting of classes, he were able to avoid the imposition of the penalty by saying, “Why suspend me? There are others just as bad,” chaos would reign on the campus.

One of the difficulties here is that plaintiff, a young man and not a lawyer, prosecutes this case pro se, with the aid of quotations and highsounding phrases which have very little to do, if anything, with the facts or legal issues in this case. He believes that his “rights” must be vindicated regardless of the rights of others, that he alone, in contrast to those entrusted by law with the administration of education in Brooklyn College and the City and State of New York, is right *20and that they are wrong in their administrative policies. Plaintiff was one student out of some 8,000 at Brooklyn College but he insists that his views and his practices prevail and that he be allowed to continue them unrestrained lest the Fourteenth Amendment be violated.

As a member of the student body, he envisions himself as deprived of liberty in that the administration did not look with favor upon his writing letters to them, accusing them, among other things, of “vile indecencies.” Despite the fact that he was receiving his education without cost at the hands of the taxpayers of his community and that he entered Brooklyn College not as a matter of right but as a matter of grace after having agreed to conform to its rules and regulations, he regards himself deprived of free speech, holding himself free to write or say what he chooses, subject only to the risk of civil or criminal libel and slander. Such redress, he says, must be by the individual recipient of his abuse, and cannot be considered as a breach of good morals or good manners by the College.'

In the category of “Denial of Due Process,” he would turn every College or committee review of his acts into a full scale criminal trial with bills of particulars, cross examinations, and discovery proceedings. Despite the fact that, throughout his college career, he was given more than tolerant consideration by the representatives of the various defendants, many oral hearings, more than adequate notice of the charges against him and the bases upon which the College alleged his violation thereof, he charges denial of due process. He argues that he was unaware of the nature of his misconduct despite the fact that he was specifically told wherein his acts departed from good manners and good morals in the academic community. Plaintiff knew what was required of him, yet after two suspensions and two rein-statements upon his own assurances of compliance, he persisted in his conduct. Dismissal ultimately resulted.

When plaintiff entered Brooklyn College, he was required to sign a pledge which, amongst other paragraphs, contained the following:

“I shall conform with the discipline, regulations, and orders of the College of the City of New York, and with the by-laws and resolutions of the Board of Higher Education of the City of New York.”

One of the primary functions of a liberal education to prepare the student to enter a society based upon principles of law and order may well be the teaching of “good manners and good morals.” Defiance by plaintiff of these standards by wholesale broadcasting of his personal views amongst the student body and faculty was scarcely compatible with these precepts. He deliberately chose not to conform with his pledge. The instances are many but a few may be culled from the record as illustrative.

At the time of his first suspension in the Spring of 1955, his academic work was substantially below standard, namely, minus 19 according to the system employed at the College. When he was permitted to resume his studies in the Fall of 1955, he was reinstated on a probationary basis, one of the conditions being non-participation as an officer in any student activities organization. The suggestion was made to plaintiff that he concentrate his full time and energy upon his primary academic tasks. Such a condition was consistent with the universal practice in American colleges and universities where certain academic standards are required for participation in extra-curricular student activities and in college athletics. Were plaintiff’s views to prevail, every athlete, disgruntled at the faculty’s decision to place him on probation for academic reasons, could immediately apply to the courts for relief and to avoid deprivation of liberty, due process and equal protection of the laws, could have a full-scale trial in which he could cross-examine all his professors as to their individual malice toward him and their arbitrary conduct in their cisión that he merited a “D” instead of *21a “B plus.” Were he to properly present his case, he should also call all his fellow students who received “B pluses” so as to establish to the court that his examination papers were just as good as theirs and, hence, that there was discrimination and lack of equal protection.

Another instance is plaintiff’s claim to the right to attend a meeting of the Student Executive Council. Plaintiff was not a member of the Executive Council and had no right to be there and, upon his refusal to leave, had to be escorted out by a police officer. Since he had no right to be present, he can scarcely found a deprivation of liberty charge upon this incident any more than he could walk into a meeting of the Cabinet of the United States and charge a similar deprivation were he not allowed to participate in its deliberations.

By the distribution of literature to the faculty and student body of the College, containing charges against the administration, faculty and its committees, plaintiff’s actions were, to say the least, disruptive and an interference with the atmosphere which should prevail in an institution of higher education. If plaintiff’s views were to prevail, the judiciary law should be amended to give any student who has been the subject of disciplinary action by the Dean’s Office or the President’s Office of any college or university a direct appeal to the Supreme Court. By such a procedure, countless hours of time of faculty, administrative officers, and lower courts would be conserved.

Jurisdiction exists in the Federal Courts (Hamilton v. Regents of University of California, 1934, 293 U.S. 245, 55 S.Ct. 197, 79 L.Ed. 343), but neither on the law nor the facts has plaintiff made out a case.

Plaintiff argues that a rule which is fair on its face may be discriminatorily applied so as to deny to an individual the equal protection of the laws, as in Yick Wo v. Hopkins, 1886, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. A necessary element of a claim so founded, however, is proof of an “intentional or purposeful discrimination between persons or classes.” Snowden v. Hughes, 1944, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497; Spam-pinato v. M. Breger & Co., Inc., 2 Cir., 1959, 270 F.2d 46. Although plaintiff alleged in his complaint that other students at Brooklyn College had also publicly criticized the Administration, and the record shows that critical statements by others did appear in the Kingsman, a student newspaper, and that no other students were dismissed, as he was, there is nothing to suggest that any other student so persistently disturbed the college community. The record supports an inference that any equally disruptive student would have been dismissed.

The equal protection cases cited by plaintiff are not apposite, as the trial court held, since they involved either an expressed impermissible classification, such as one based on race or religion, or the impermissibly discriminatory application of a rule fair on its face.

Plaintiff’s claim of an alleged denial of procedural due process in the administrative hearings wherein his dismissal was reviewed is faulty in that the Fourteenth Amendment does not guarantee judicial due process in such administrative proceedings, O’Brien v. Commissioner of Education, 1958, 4 N.Y.2d 140, 173 N.Y.S. 2d 265, 149 N.E.2d 705, and the record does not suggest a fundamental lack of fairness in the hearings.

As to plaintiff’s reliance on his right of free speech, it has not been impaired. He may still speak and write as he wishes, subject to the law of libel and slander, the clear and present danger doctrine, and other restraints imposed upon every individual.

Judge Rayfiel was correct in granting the motion to dismiss the complaint as though it had been made for summary judgment under Rule 56, Federal Rules of Civil Procedure, not because the district court lacked jurisdiction, nor because plaintiff had not exhausted state remedies, but because the pleadings and other documents before him revealed no material issue of fact which required a trial.

*22The judgment dismissing the complaint should be affirmed.

. “maliciously suspended,” “arbitrarily sustained,” “unlawfully dismissed,” “unreasonably insufficient,” “unconstitutionally dismissed.”