(dissenting).
I cannot agree with any of the several mutually exclusive and conflicting reasons advanced to justify the dismissal of this action. For I believe the plaintiff has presented claims which can be legally adjudicated only upon a full dress trial in the district court. The reasons here set forth range from assertions of lack of jurisdiction and failure to exhaust state remedies — defenses quite unavailable under the precedents — to a selective and highly colored judicial reconstruction of facts, of which many were not even claimed by any of the defendants and in any event are unacceptable until proved at trial. However much we may try to evade it, the fact remains that the case is before us with too important and far-reaching issues to be merely pushed aside. In justice to the parties and to the vital public interest in education here involved I am convinced that the action should not be peremptorily dismissed.
Suing under the Civil Rights Statute, 28 U.S.C. § 1343(3), Arthur Steier has alleged that the Dean of Students and the President of Brooklyn College — a unit of the public education system of the City of New York — arbitrarily and maliciously caused him to be first suspended and then dismissed from the College for misconduct. Thus he is barred from further public education in the State of New York. There can be no dispute that on defendants’ motion for summary judgment below Steier made a prima facie documentary showing to support his allegations, leaving open only the question whether they are adequate to justify the relief sought. Steier’s several letters, on which the College’s action is purportedly based, show perhaps an obstinate and overstated sense of indignation against student discrimination, but nothing indecent, delinquent, or criminal and nothing (I submit) calling for discipline and expulsion, rather than patient response. So my brother Judge Gibson, construing the record as favorably as possible to the defendants, nevertheless is brought to the reluctant conclusion that the College dismissed Steier “for its own reasons.” True, my brother Judge Moore, by items carefully culled from the voluminous correspondence submitted by the defendants on their motion to dismiss, has attempted to show both misconduct and scholastic difficulties on the part of Steier. But there appears to have been no actual scholastic deficiency, and it needs emphasis that the College never at any time based its attempted discipline on scholastic deficiencies; nor do the defendants now make any such claim.1 So the details selected to show misconduct (which of course stand unproven) really only demonstrate the more that Steier’s vice is nonconformity, rather than crime or misdemeanor. Surely the City’s public education system has failed in its purpose when for its own assumed self-protection it must deny all its benefits to one whose only apparent transgression is a persistent and even irritating spirit of independence.
The district court based its ruling on plaintiff’s failure to exhaust state remedies. As the weight of authority is clearly against such a holding, I do not belabor that issue. See, e. g., Borders v. Rippy, 5 Cif., 247 F.2d 268, 271, and cases there cited. The main opinion herein, however, I find considerably more distressing. It is bottomed solely on the proposition that “Education is a field of life reserved to the individual states. The only *23restriction the Federal Government imposes is that in their educational program no state may discriminate against an individual because of race, color or creed.”2 This indeed is a novel doctrine. No court, ever before to my knowledge, has suggested that the Fourteenth Amendment to the United States Constitution is a paltry piece of class legislation limited, it seems, to according protection to Negroes in the South and Jehovah’s Witnesses in other areas. Surely the noble privileges therein embodied are not to be thus denigrated.
Speaking specifically of the opportunity for education, the Supreme Court has declared that “where the state has undertaken to provide it, [it] is a right which must be made available to all on equal terms.” Brown v. Board of Education of Topeka, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873, 38 A.L.R.2d 1180 (emphasis added). That the Supreme Court’s — and the Fourteenth Amendment’s — “all” does not mean merely “minority groups” is clear. White as well as Negro students may properly object to public school segregation — and under the civil rights statute, too. Romero v. Weakley, 9 Cir., 226 F.2d 399.
It cannot be really gainsaid at this late date that the Fourteenth Amendment broadly requires of the states in all their activities that they make only reasonable distinctions between persons. Goesaert v. Cleary, 335 U.S. 464, 466, 69 S.Ct. 198, 93 L.Ed. 163. See also Douglas v. Noble, 261 U.S. 165, 168, 43 S.Ct. 303, 67 L.Ed. 590; Dent v. State of West Virginia, 129 U.S. 114, 123-124, 9 S.Ct. 231, 32 L.Ed. 623; Nebbia v. People of State of New York, 291 U.S. 502, 524, 54 S.Ct. 505, 78 L.Ed. 940; Quaker City Cab Co. v. Commonwealth of Pennsylvania, 277 U.S. 389, 400, id. 403, 406 (dissent of Brandeis, J.), 48 S. Ct. 553, at page 556, 72 L.Ed. 927; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S.Ct. 337, 55 L.Ed. 369; Ex parte Secombe, 19 How. 9, 13, 60 U.S. 9, 13, 15 L.Ed. 565. When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. * * * Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal dis-criminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.” Yick Wo v. Hopkins, 118 U.S. 356, 370, 373-374, 6 S.Ct. 1064, 1071, 30 L.Ed. 220. it
Even in as delicate an area as the assessment of the character of applicants for admission to the bar of a state’s courts, a state may be made to defend the reasonableness of its action in the federal courts. Schware v. Board of Bar Examiners of State of New Mexico, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796. This court has recognized the right of a teacher, newly hired, on probation, and without tenure, to test under the Civil Rights Statute the reasonableness of her dismissal from employment. Bomar v. Keyes, 2 Cir., 162 F.2d 136, certiorari denied 332 U.S. 825, 68 S.Ct. 166, 92 L.Ed. 400. And the same statute has been utilized to challenge the grounds of a student’s expulsion for insubordination even in advance of an actual expulsion and when the school authorities had merely announced a prospective policy. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. Plaintiff’s position here is indistinguishable from the above. He should be given an opportunity to prove the serious charges he has made. The claimed defenses of law are legally insufficient, and the attempted reconstruction of the merits needs proof at trial before it can be viable. Hence I would reverse and remand for trial.
it
. Actually plaintiff’s grades (which the concurring opinion cites at their lowest point in his college career) appear to have been generally of “C” level and quite above disciplinary action. So other assumed facts seem equally doubtful. Thus plaintiff says that the Student Executive Council meeting he attended was an open one, with many other nonmember students in attendance, and that there was no reason to order the police officer to accompany him out. The concurring opinion appears to claim for university deans powers of dismissal and discipline of nonconforming students which I know from, personal experience such officials in general do not seek or desire.
. The concurring opinion goes so far as to say that the public education here involved is a matter of grace, not right.