(dissenting and concurring):
I dissent from the dismissal of the section 1983 claim and concur in the remand of the section 1981 claim for the reasons stated in the panel opinion, 824 F.2d 1333, modified on reh’g, 839 F.2d 871 (2d Cir. 1987), as I do not agree with the majority’s narrow treatment of section 1981 law. Speaking solely for myself since, as a matter of en banc law, District Judge Metzner could not rehear this case, I add my comments to the panel opinion.
I agree with Judge Friendly’s concurring opinion in Coleman v. Wagner College, 429 F.2d 1120, 1126 (2d Cir.1970), that state action occurred when, in response to well-publicized student occupations during the Vietnam War era, the New York legislature enacted New York Education Law § 6450 (McKinney 1985), compelling private colleges to promulgate rules for maintaining public order. I say “compelling” intentionally; the very first sentence of the statute states:
1. The trustees or other governing board of every college chartered by the regents or incorporated by special act of the legislature shall 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
(Emphasis added.)
The statute requires that penalties for violation of the rules include “suspension, expulsion or other appropriate disciplinary action.” While the words “other appropriate” may be weasel words, the statutory injunction forbidding “state aid or assistance” to colleges that failed to conform to section 6450(1), N.Y.Educ.Law § 6450(2), provided an irresistible incentive for colleges to establish the strictest penalties possible for student misconduct. Numerous colleges took this threat seriously and registered their opposition to the new statute. See Letter from Frederick M. Binder, Associate Commissioner for Higher Education, New York State Education Department, to Lester W. Ingalls, Executive Vice President, Association of Colleges and Universities of the State of New York (August 21, 1969). As the trustees of one private college wrote, “Threatening to withhold State financial aid for non-compliance with the law is, in our view, tantamount to coercion.” Letter from Trustees of Hobart and William Smith Colleges to Governor Nelson A. Rockefeller (June 14, 1969). For the majority to say that there is no “evidence whatsoever that any private college administrators anywhere in the State of New York believe, reasonably or not, that the Henderson Act requires that particular
State officials sent a strong message to colleges that strict adherence to the new law was required and that the harsher penalties should be adopted. Within days of the passage of section 6450, high ranking state education officials (including two Regents, the Deputy Commissioner of Education for Higher and Professional Education, and the Counsel to the Education Department) met with college officials (including the Director of the Association of Colleges and Universities of the State of New York, an organization of which Hamilton and practically all of the other colleges in New York were members). Rejecting the wishes of at least some colleges for “minimum compliance [with section 6450] tied in with some vague and evasive statements,” Frederick M. Binder, Memorandum, “Summary of the Meeting Called to Discuss the Amendment to the Education Law 129A — Campus Unrest,” at 2 (May 6, 1969), state officials insisted that compliance with the law required that “the rules must be precise.” Id. Robert Stone, Counsel to the Education Department, stated that the legislature clearly intended that the institutions should not “ ‘exercise as much forebearance as they have.’ ” Quoted in Memorandum from John J. Meng, Executive Vice President of Fordham University, to President and Vice Presidents of Fordham University, at 2 (May 6,- 1969). The state officials informed the college representatives that section 6450’s requirement of a “program for the enforcement” of the rules meant that each college “must list the steps it will take if the specified rules are breached,” id. (emphasis added); that the regulations must provide for the ejection of disrupters; that this provision must be applied after a “ ‘reasonable time’ ” has elapsed, id. at 3 (quoting Robert Stone); and that “[n]on-application of the ejection rule would certainly not be acceptable.” Id. As one official noted at the meeting, “[t]he legislature clearly intended to take away from institutions the choice of whether or not to eject violators.” Id. at 4. In fact, soon thereafter the legislature established a state commission to study and investigate campus unrest. The State Education Department formally advised all colleges that the commission would study the need for additional legislation, raising the spectre of further regulation and intervention if colleges did not comply with section 6450. A clear threat was in the air. Under these circumstances, had Hamilton actually imposed “ ‘a rose and a peppercorn on Midsummer’s Day,’ ” majority op. at 564 (quoting Coleman v. Wagner College, 429 F.2d 1120, 1124 (2d Cir.1970)), instead of the most severe penalties, there would have been more than a hue and cry; there would have been “very midsummer madness.” W. Shakespeare, Twelfth Night, or, What You Will III.iv.56 (G. Evans ed. 1974).
Whether state education officials thought they had a duty to regulate campus protest, state law imposed such a duty on them, giving their actions the weight and authority of the state. See N.Y. Educ.Law § 207 (McKinney 1988) (regents “exercise legislative functions concerning the educational system of the state,” including its private institutions; “determine its educational policies”; and “establish rules for carrying into effect the laws and policies of the state, relating to education”); id. § 305(1) (commissioner of education enforces education laws and executes policies determined by regents). See also Powe v. Miles, 407 F.2d 73, 81 (2d Cir.1968); Warder v. Board of Regents, 53 N.Y.2d 186, 423 N.E.2d 352, 440 N.Y.S.2d 875, cert. denied, 454 U.S. 1125, 102 S.Ct. 974, 71 L.Ed.2d 112 (1981); cf. O’Neil, Private Universities and Public Law, 19 Buffalo L.Rev. 155, 185 (1970) (uniqueness of New York’s far-reaching regulatory authority over private institutions of higher learning). The fact that state education officials have made little use of the rules since their adoption is, to my mind, immaterial, in light of the initial pressure on colleges to adopt regulations that provide suspension and expulsion as penalties and to impose these penalties where there are violations.
The history of Hamilton’s code of conduct illustrates the pressure felt by col
Once the legislature enacted section 6450, however, Hamilton was forced to change its regulations. A faculty committee was convened to prepare the college’s proposed rules pursuant to a procedure set out in the college’s charter. The committee did not readopt the then existing regulations because it was necessary “to be far more specific than we had been in the past” in order to “satisfy the State.” Id. (testimony of Austin E. Briggs, Jr., Professor, Hamilton College). Asked whether the committee thought it had the choice of pursuing its “own independent judgment” in drafting the new regulations, one faculty member testified, “No, no, we felt we had none.... [W]e were in fact told by the president of the college that we had no choice in this matter.” Id. Thus, according to this faculty member and the then Dean of Students, the committee’s proposal did not reflect the committee’s independent professional judgment as to what was best for Hamilton as an educational institution, but rather the dictates of the Henderson Act.
The faculty as a whole approved the proposed regulations and recommended that the board of trustees submit the regulations to the State, a recommendation which the board accepted. One participant recalled the faculty meeting as follows:
Hugh Jones, who was with the college trustees at that time, and was a prominent lawyer, explained to us at that meeting, and we knew it before the meeting ... explained to us quite clearly that we were obliged to adopt these regulations. ... We had to have a more strict set, more specific set of regulations and we, the faculty, if we were not to adopt it, there would be penalties imposed upon the college. We had no choice. We really had to accept these regulations.
Id. (testimony of James Ring, Professor, Hamilton College). Hugh Jones was, of course, subsequently a distinguished member of the New York Court of Appeals.
Hamilton’s post-Henderson Act regulations define proper order on campus and provide the specific steps the president “shall” take when “normal procedures have failed to maintain” proper order. Ending the college’s flexibility to pursue an unlimited “open dialogue,” id. (DePuy deposition at 4), the new regulations prohibit discussions from continuing “without limit” when there is “interference with the conduct of any college activity or access to any college-controlled facility.” A Guide to the Policies and Procedures of Hamilton College, at 43 (September 1986). If there is such interference or if there is no substantial progress in the talks after a “reasonable” time, the rules require the college to close the campus to outsiders and the disrupted area to students, and to warn the disrupters that the college will seek an order from a court of competent jurisdiction requiring them to cease their activities or face ejection from the campus. If the disruption nonetheless persists, the president “shall apply forthwith” to the court for the order and serve it upon the disruptive students. Id. at 44. The regulations provide that suspension or expulsion previously imposed only for “extremely serious misconduct,” are now possible sanctions for any violation of the rules on campus order. Thus Hamilton, although previously content with its existing regulations, promulgated a “more strict set, more specific set of regulations,” Albert, No. 86-CV-1302 (testimony of James Ring, Professor, Hamilton College), to comply with the mandate of section 6450 and the pressures exerted by state officials on the New York colleges. It is those changes which are
In the instant case, Hamilton officials closely followed the 1969 code. Dean of Students Jervis closed the campus to outsiders, barred students from Buttrick Hall, and warned the students that, unless the disruption ceased, the college would seek a court injunction. President Caravano cited the students’ failure to obey the off-limits declaration and their alleged defiance of the temporary restraining order as the reasons for imposing discipline. In light of the college’s precise compliance with rules demanded by the legislature and state education department officials, the present college dean and president’s suggestion of independent action is inapposite if not disingenuous.
In the confusing sea of state action law, see L. Tribe, American Constitutional Law ch. 18 (2d ed.) (forthcoming), where the Supreme Court has declared the formulation of “an infallible test” an “ ‘impossible task,’ ” Reitman v. Mulkey, 387 U.S. 369, 378, 87 S.Ct. 1627, 1632, 18 L.Ed.2d 830 (1967) (quoting Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961)), the majority relies primarily upon Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982), and concludes that Hamilton’s actions were not caused by a rule of conduct imposed by the State. In Yaretsky, the Court noted the absence of a challenge to a particular state regulation, 457 U.S. at 1003, 102 S.Ct. at 2785, but said that “a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” 457 U.S. at 1004, 102 S.Ct. at 2786. In a companion case, Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), the Court found no state action where a private school’s decisions to discharge certain employees “were not compelled or even influenced by any state regulation.” 457 U.S. at 841, 102 S.Ct. at 2771. Here, the State did exercise coercive power and did so overtly. Had the pre-Henderson Act regulations been in effect at the time of appellants’ protest, that protest might or might not have amounted to the “extremely serious misconduct” necessary to authorize suspension. In contrast, the regulations adopted in direct response to the Henderson Act and concomitant state pressure permit the severe penalty of suspension for any misconduct. At the very least, I believe the students have shown that a factual dispute exists as to whether Hamilton’s actions were caused by a rule of conduct imposed by the State, see Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-56, 98 S.Ct. 1729, 1732-33, 56 L.Ed.2d 185 (1978), and, in my view, have satisfied the first part of the state action test.
The second part — whether Hamilton College, its President, and its Dean were state actors — is less clear. The discovery time available to the plaintiffs was extremely short. Less than four weeks elapsed between commencement and dismissal of the action and appellants had access to state Education Department files for only one week before the evidentiary hearing. Still, enough appears in the record to warrant further inquiry into whether, as I believe, the Hamilton officials took steps compelled by regulations which in turn were compelled by the statute as interpreted by state education officials and college administrators. The conduct of the college and the college officials was thus “chargeable to the State,” Lugar, 457 U.S. at 937, 102 S.Ct. at 2754, given the “sufficiently close nexus between the State and the challenged action of the regulated entity.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974); see also Burton, 365 U.S. 715, 81 S.Ct. 856.
Even though the unanimity among those of my colleagues who sat on this case when reheard has caused me to think long and hard as to whether Judge Metzner and I
Concerning the section 1981 claim, as to the disposition of which I concur, I add just a few words to note my disagreement with the majority’s reasoning. The crabbed reading of section 1981 in Judge Winter’s opinion fails to recognize that non-minority plaintiffs only need show unfair discrimination in response to their efforts to aid minorities in the exercise of their rights, in order to state a section 1981 claim. De-Matteis v. Eastman Kodak Co., 511 F.2d 306, 312 (2d Cir.), modified on other grounds, 520 F.2d 409 (1975) (holding that “a white person who has been ‘... punished for trying to vindicate the rights of [non-white] minorities ... ’ has standing to sue under § 1981” (quoting Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 404, 24 L.Ed.2d 386 (1969))).