author: SIMMONS, District Judge.

text:
    Peter J. SMITH, Plaintiff, v. DUQUESNE UNIVERSITY, and Duquesne University Corporation, Defendants.
    Civ. A. No. 84-1465.
    United States District Court, W.D. Pennsylvania, Civil Division.
    May 28, 1985.

      Robert W. Murdoch, Pittsburgh, Pa., for plaintiff.
    Robert W. Hartland, Pittsburgh, Pa., for defendants.
   OPINION

SIMMONS, District Judge.

Commencing September, 1980, Peter J. Smith, a 48 year old male, was admitted as a doctoral degree candidate to the Duquesne University Graduate Program in English. Ten months later he was dismissed from the program for academic reasons. Following Smith’s dismissal, this civil rights lawsuit was filed.

In this suit, Smith assails the conditions of his admittance, his grades and classroom treatment as a student, and his dismissal from Duquesne University. Smith complains that the school’s conduct violated his constitutional rights to due process and equal protection of the laws. Smith also claims that Duquesne University denied him access to his educational records in violation of the Family Educational Rights and Privacy. Act, 20 U.S.C. § 1232g (1974) [Hereinafter cited as FERPA].

At the close of discovery, Duquesne University moved for summary judgment asserting that the institution is a private, not public, entity and therefore its actions are not subject to constitutional scrutiny under 42 U.S.C. § 1983. Duquesne also contends that Smith’s complaint under FERPA cannot be maintained because FERPA grants no federal cause of action to private litigants.

I. FACTS.

The facts are undisputed. Duquesne University was founded in 1878 by the Holy Ghost Fathers from Germany. When its doors opened it was known as the Catholic College of the Holy Ghost. Four years later, the school incorporated as the Pittsburgh Catholic College. Subsequently, in 1911, the institution’s name was changed to Duquesne University. Today, the school’s Corporate name is Duquesne University of the Holy Ghost.

Duquesne University of the Holy Ghost is a nonprofit corporation which has no capital stock and whose sole stated purpose is to support and maintain the university for the instruction of youth in all branches of a thorough, moral and secular education. Membership in the corporation is limited by corporate bylaws to members in good standing of the religious society within the Roman Catholic Church known as the Congregation of the Holy Ghost and of the Immaculate Heart of Mary.

The university’s corporate board of directors, responsible for oversight and management of the corporation, are elected by members of the corporation. The daily operation of the university is vested in the President, who is the chief executive officer, a Chancellor, various vice presidents, and an administrative council. The administrative council is composed of representatives of the university’s officers, faculty members, deans, and members of the student government.

Most of Duquesne University’s operating budget is derived from private sources. The university receives some operational funds from the Commonwealth of Pennsylvania in the form of State Institutional Assistance Grants, but the amounts received are de minimis in comparison to the university’s overall operational expenses. For example, the university’s 1984 operating budget exceeded $40 million, in contrast to the $831,198 state assistance grant the university received against its operating expenses for the 1983-1984 academic school year. The level of funding through state assistance grants is determined by the number of students enrolled at a recipient state institution of higher learning.

Approximately seventy-five percent of Duquesne University’s students receive some form of educational financial assistance from a governmentally sponsored program; mostly low interest guaranteed state loans made directly to the student by private lenders and guaranteed by the state. However, the majority of tuition income received by the university comes from private sources. Additionally, the university and individual professors are periodically awarded grants and contracts to perform research or to finance various educational programs, but these amounts have been limited. For the last five academic years, from 1979-1984, research grants and specific program funding has averaged only $678,122 annually.

Duquesne University receives no government grants or gifts of public funds for the construction of its buildings. But the university has borrowed money from both federal and state governments for building construction. To date, the University has borrowed $8,431,000 from the Housing and Urban Development Authority and $12,-795,000 from the Pennsylvania Higher Education Facilities Administration; the balance on those loans are $5,906,000 and $7,406,610, respectively.

II.. DISCUSSION,

a. State Action Requirement.

The United States Constitution’s fifth and fourteenth amendments shield the individual only from governmental action. The “Fourteenth amendment, which prohibits the states from denying federal constitutional rights and which guarantees due process, applies to acts of the states, not to acts of private persons or entities. See Rendell-Baker v. Kohn, 457 U.S. 830, 837, 102 S.Ct. 2764, 2769, 73 L.Ed.2d 418 (1982), citing, Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 21, 27 L.Ed. 835 (1883); Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948).

The fourteenth amendment provides, in pertinent part, that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S.Const. amend. XIV, § 1. Section 1983, which prohibits abridgment of federal rights “under color of state law,” was enacted by Congress to enforce the fourteenth amendment. 42 U.S.C. § 1983. Courts have consistently treated the section 1983 “under color of state law” and the fourteenth amendment’s “state action” requirements as the same thing. See United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 1157 n. 7, 16 L.Ed.2d 267 (1966). Therefore, state action analysis under the fourteenth amendment and section 1983 are identical.

The standard for whether an entity is subject to constitutional scrutiny under section 1983 and the fourteenth amendment is whether the alleged conduct can be “fairly attributable to the state.” See Lu-gar v. Edmondson Oil Co, 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982). To date, there is no uniform test to determine whether state action exist. Reitman v. Mulkey, 387 U.S. 369, 378, 87 S.Ct. 1627, 1632, 18 L.Ed.2d 830 (1967). The United States Supreme Court has, however, adopted several approaches to ascertain what constitutes sufficient state participation with private activity to attribute responsibility to the state. What test applies depends on the circumstances of each case. Only two of the commonly used approaches are appropriate to determine whether state action exist in this case: the “overall interdependence” or “symbiotic relationship” test of Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), and the “close nexus” test of Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974).

In Burton a private restaurant owner who refused to serve a Negro customer solely because of his race, was subjected to fourteenth amendment scrutiny because the restaurant was located in a public parking garage owned by a state-created parking authority and the rent from the restaurant profited the state. The dispositive factor in Burton was the extent and nature of the overall relationship between the state agency and the private entity. There the Supreme Court found state action because the state had “so far insinuated itself into a position of interdependence with [the restaurant] 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.” Burton, 365 U.S. at 725, 81 S.Ct. at 862.

Jackson involved a privately owned and operated utility corporation which was subject to extensive state regulation in the operation of its business affairs. When the utility company terminated a customer’s electric services without notice, hearing or an opportunity to pay the amount due, the Supreme Court rejected the customer’s due process claim because there was not a “sufficiently close nexus between the state and the challenged action ... so that the action of the [private entity] may be fairly treated as that of the State itself.” Jackson, 419 U.S. at 351, 95 S.Ct. at 453.

Subsequently, in 1982, the Supreme Court decided a trilogy of cases reaffirming the continued viability of the symbiotic relationship, close nexus and public function tests as workable frameworks for state action analysis: Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982); Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). Of the three cases, the Lugar decision is the most factually dissimilar to the present dispute and therefore offers little guidance.

Rendell-Baker, on the other hand, involved a section 1983 claim against a privately operated school by teachers who were discharged because they had opposed school policies. The school specialized in dealing with problem high school students, nearly all of whom were referrals by various city school committees from state drug rehabilitation programs. The referring school committees paid the students’ tuition and expenses; hence the school received nearly one hundred percent of its funding from public sources. Also, the school was extensively regulated and subject to state-imposed administrative guidelines on personnel policies. Rendell-Baker, 457 U.S. at 881-33, 102 S.Ct. at 2766-67.

Although the school in Rendell-Baker was heavily regulated, closely supervised and almost totally funded by the state, the Supreme Court held that the teacher firings could not be attributed to the state under the close nexus test because the school’s decision to dismiss the teachers had not been “compelled or even influenced by any state regulation” Id. at 841, 102 S.Ct. at 2771. The Court also concluded that the school was a private actor under the symbiotic relationship and public function tests. Id. at 842-43, 102 S.Ct. at 2772. In Blum v. Yaretsky, likewise a section 1983 suit, the Supreme Court again rejected a state action claim using the close nexus, symbiotic relationship and public function tests. The plaintiff in Blum raised due process claims to a decision by a privately operated nursing home to transfer medicaid patients from high-care to lower-care facilities under federal law. Though the state subsidized the nursing homes, paid the patients’ expenses, licensed and extensively regulated the nursing homes, the Court held that the patient discharge and transfer decisions were not fairly attributable to the state. Those decisions, the Court ruled, ultimately turned on medical judgments made by private entities according to professional, not state, established standards. Blum, 457 U.S. at 1008, 102 S.Ct. at 2788.

i. The Overall Interdependence or Symbiotic Relationship Analysis

The symbiotic relationship test looks to the overall relationship between the state and the asserted state actor. Both Blum and Rendell-Baker focused on the financial relationship between the defendants and the state, which was the only significant form of state influence over the school in Rendell-Baker and the nursing home in Blum. The Supreme Court concluded in both cases that the financial relationship between the state and the defendants was insufficient to support a finding of state action. The Court’s finding of state action in Burton, on the other hand, turned on the total intermingling of state with private action.

Recently, the Third Circuit has reviewed the Commonwealth of Pennsylvania’s interrelationship with the University of Pittsburgh and Temple University and concluded that the relationships were “more closely analogous to that complete intermingling of state and private actors found in Burton than to the relatively minimal interrelationships between the state and the defendants in Blum and Rendell-Baker.” See Krynicky v. University of Pittsburgh, 742 F.2d 94, 101 (3d Cir.1984), cert. denied, - U.S. -, 105 S.Ct. 2018, 85 L.Ed.2d 300 (1985). See also Braden v. University of Pittsburgh, 552 F.2d 948 (3d Cir.1977).

The Third Circuit’s symbiotic relationship analysis in Krynicky and Braden is instructive here. In Krynicky, the Commonwealth statutorily created and defined its relationship with Temple University and the University of Pittsburgh. Both institutions were statutorily established “as an instrumentality of the Commonwealth to serve as a State-related institution in the Commonwealth System of higher education.” See Krynicky, 742 F.2d at 102, citing, Pa.Stat.Ann. tit. 24, § 2510-202 (Purdon 1966). One-third of the universitys’ trustees were selected by the Commonwealth and various elected officials served as trustees ex officio. The institutions received extensive financial support from the Commonwealth which set the institutions’ annual appropriations, policy and tuition rates. The schools were statutorily required to submit to state-sponsored audits or make yearly reports to the state assembly. So comprehensive was the statutory relationship between the Commonwealth on the one hand, and the University of Pittsburgh and Temple University on the other, that the Krynicky court held that actions taken by the two schools are taken under the color of state law and therefore subject to constitutional challenges. Id. at 103.

By contrast, the interrelationship between the Commonwealth of Pennsylvania and Duquesne University is so tenuous as to lead to no other conclusion but that Duquesne is a private institution and not a state actor. In fact, the interrelationship between Duquesne University and the Commonwealth is more tenuous than, as the Third Circuit noted in Krynicky, “the relatively minimal relationship between the state and the defendants in Blum and Rendell-Baker.” Krynicky, 742 F.2d at 101. Unlike the University of Pittsburgh and Temple University in Krynicky, the Commonwealth of Pennsylvania has never statutorily or otherwise “accepted responsibility” for Duquesne or established Duquesne “as an instrumentality of the Commonwealth to serve as a State-related institution in the Commonwealth System of higher education.” Id. at 102. In short, there is no statutory interrelationship between the state and Duquesne University: the state does not participate in the management or operation of Duquesne, review the institution’s expenditures, nor require the institution to submit voluminous financial reports to the state.

The uncontroverted record also establishes that neither the Commonwealth nor any government agency exercise any power or exert any meaningful control or influence over Duquesne University’s policy or operational decision-making process. Accord Pendrell v. Chatham College, 370 F.Supp. 494 (W.D.Pa.1974). The university’s entire administrative hierarchy is devoid of any governmental involvement. The university’s corporate members are exclusively Holy Ghost Priest and, unlike Temple University and the University of Pittsburgh in the Krynicky case, none of Duquesne University’s officers are local, state or federal government employees or elected representatives.

Finally, the state’s financial contributions to Duquesne University are comparatively minuscule in relationship to the institution’s overall operational expenses. At any rate, absent other indicia of inexplicable state and school interdependence, the Supreme Court has made it unequivocally clear in Blum and Rendell-Baker that state contributions to otherwise private entities, no matter how substantial, does not in itself transform a private actor into a state actor; something more is required. See Krynicky 742 F.2d at 102.

In sum, under the symbiotic relationship test, this Court can find no state action,

ii. The Close Nexus Analysis.

The close nexus test, instead of assaying the overall relationship between the parties, seeks to determine whether the state can be deemed responsible for the specific act of which the plaintiff complains. See Community Medical Center v. Emergency Medical Services, 712 F.2d 878, 881 (3d Cir.1983). Where the state is closely involved in the very activity challenged by a litigant, although the actor is otherwise a private entity, the conduct may be subject to constitutional strictures. See Braden v. University of Pittsburgh, 552 F.2d 948, 958 (3d Cir.1977). 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.” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982).

In this action, Smith complains of his treatment as a student and his dismissal from Duquesne University. Under the close nexus approach, this case requires no protracted analysis to determine that Duquesne’s decision to dismiss Smith cannot fairly be attributable to the Commonwealth. Here it is beyond peradventure that the decision to discharge Smith from Duquesne’s graduate English department was not compelled or influenced by any state regulation. Nor can it be fairly said that the Commonwealth was even remotely or indirectly involved in that decision. The decision to expel Smith, like the decision to matriculate him, turned on an academic judgment made by a purely private institution according to its official university policy. If indirect involvement is insufficient to establish state action, then certainly the lack of any involvement cannot suffice. See Community Medical Center, 712 F.2d at 881.

b. Private Cause of Action Under The Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g.

Smith also complains that Duquesne University abridged his right to inspect and review his educational records and denied him the right to a hearing to request correction of his educational records, all Smith asserts, in violation of the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (1974) [FERPA].2 ***

That a federal law has been violated and someone harmed does not, of itself, give rise to a private federal cause of action in favor of the aggrieved person. See Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). Here, FERPA does not expressly provide a private remedy. To determine whether a private cause of action is implicit in a federal statute not expressly providing one, the Supreme Court in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975), espoused a four-prong test to discern congressional intent.

Cort’s threshold consideration for determining whether a private remedy should be implied is whether the plaintiff is a member of the class for whose especial benefit FERPA was created. Id. at 78, 95 S.Ct. at 2088. In this regard, the Supreme Court has noted that the most accurate indicator of whether a privately enforceable remedy should be implied is the duty- or right-creating language in the statute itself. Cannon, 441 U.S. at 690 n. 13, 99 S.Ct. at 1954 n. 13. Where the language of the statute expressly identifies the special class to be benefited, in contrast to language merely for the protection of the general public, the Supreme Court has consistently held that a private cause of action is implicit in the statute. See, e.g., Sullivan v. Little Hunting Park, 396 U.S. 229, 238, 90 S.Ct. 400, 405, 24 L.Ed.2d 386 (1969); Jones v. Mayer Co., 392 U.S. 409, 414-15, 88 S.Ct. 2186, 2189-90, 20 L.Ed.2d 1189 (1968) (“All citizens of the United States shall have the same right to ...”); Allen v. State Board of Electons, 393 U.S. 544, 554-55, 89 S.Ct. 817, 825-26, 22 L.Ed.2d 1 (1969) (“no person shall be denied the right to vote____”); Tunstall v. Brotherhood, 323 U.S. 210, 213, 65 S.Ct. 235, 237, 89 L.Ed. 187 (1944) (“Employees shall have the right to organize and bargain collectively____”).

Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), is instructive on this point. In Cannon the Supreme Court held that, despite the absence of express congressional authorization, a private cause of action existed to enforce Title IX of the Education Amendments of 1972. Title IX prohibits sex discrimination in educational programs. There the Supreme Court drew a pointed distinction between the more pungent “no person shall be discriminated against” language of Title IX in contrast to statutory' language simply phrased as a directive to federal agencies, such as, “the Secretary shall not grant funds to discriminatory institutions.” Id. at 692-93, 99 S.Ct. 1946. The Supreme Court gave weighted consideration to the fact that, when adopting Title IX, Congress rejected “the Secretary shall not” language and instead opted for the “no person shall” language. For this reason, the Court held that Title IX was drafted with an unmistakable focus on the benefited class and therefore a private remedy could be properly implied. Id. at 693-94, 99 S.Ct. at 1955-56.

By contrast, the dispositive language in FERPA disfavors the implication of a private remedy. Unlike the rigidly prohibitive language of Title IX, FERPA is simply a directive to the Secretary of Education, which prohibits the distribution of public funds as a sanction against schools which deny students the right to inspect and review their educational records. In this regard, FERPA’s language is similar to that rejected by Congress for Title IX — language which does not expressly identify the benefited class and the type of language which the Supreme Court opined was not specific enough to warrant an implied private remedy. Cannon, 441 U.S. at 694-95, 99 S.Ct. at 1956-57.

The second question under Cort is whether the statute’s legislative history indicates a congressional intent to create or deny a private cause of action. Cort, 422 U.S. at 78, 95 S.Ct. at 2088. Not surprisingly, the legislative history of FERPA is silent on this point. Under Cort’s third prong, a private remedy will not be implied if it is inconsistent with the underlying legislative scheme of FERPA. If however, a private remedy furthers the statutory purpose, courts are decidedly more responsive to its implication. See Cannon, 441 U.S. at 703, 99 S.Ct. at 1961. In this instance, a private remedy would not materially aid FERPA’s primary congressional goal.

FERPA’s legislative history indicates that it is principally a right to privacy of educational records act. See 120 Cong.Rec. S39858 (daily ed. Dec. 13. 1974) (joint remarks of Sen. Buckley and Sen. Pell). See also Education Amendments of 1974, S.Rep. No. 93-1026, 93d Cong.2d. Sess. 186, reprinted in 1974 U.S.Code Cong. & Admin.News 4093, 4250. FERPA was adopted as a response to a growing nationwide concern that no provisions existed to protect school records from unauthorized use. With the threat of financial sanctions, FERPA seeks to deter schools from indiscriminately releasing student records and places a heavy burden on a party seeking access to student records to demonstrate a genuine need which outweighs the student’s privacy interest. Id.

In addition, enforcement of FERPA is lodged with the Secretary of Education. See 20 U.S.C. § 1232g(f). Pursuant to its congressional mandate, the Department of Education has adopted an elaborate enforcement mechanism which includes an adjudication procedure and a review board to resolve complaints regarding FERPA violations. See Privacy Right of Parents and Students, 34 C.F.R. § 99.60-61 (1984).

Against this background, it is clear that FERPA was adopted to address systematic, not individual, violations of students’ privacy and confidentiality rights through unauthorized releases of sensitive educational records. The underlying purpose of FER-PA was not to grant individual students a right to privacy or access to educational records, but to stem the growing policy of many institutions to carelessly release student records.

The final prong of the Cort test, whether the subject matter is traditionally relegated to the state, Cort, 422 U.S. at 78, 95 S.Ct. at 2088, does not aid the Court in its analysis of this case. In sum, it is enough to say that prosecution of isolated FERPA violations in federal courts does little to abate the overriding congressional concerns embodied in the act. For this reason, this Court holds that the relevant considerations adopted in the Cort decision — to determine whether a federal statute can be privately enforced — preponderates heavily against the implication of a private federal remedy for FERPA violations. Absent an express congressional directive, this Court declines to hold that a private litigant may enforce the mandates of FERPA in federal courts.

Both the plaintiff's section 1983 state action claim and the FERPA private remedy claim fall as a matter of law, therefore the defendant is entitled to summary judgment.

      . Section 1983 provides that:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983 (1979).

      . Duquesne University received the following amounts in Institutional Assistance Grants from the Commonwealth of Pennsylvania:
      Academic year Grant Received
      1979- 1980 $786,106
      1980- 1981 $794,700
      1981- 1982 $754,200
      1982- 1983 $889,923
      1983- 1984 $831,198
      For the same years, by contrast, the overall operating budgets for Duquesne University were as follows:
      Fiscal year Budget
      1979 $28,128,760
      1980 $30,383,323
      1981 $32,906,428
      1982 $36,877,545
      1983 $39,016,270
      1984 $40,621,163

      . Duquesne University received the following amounts in research grants from federal and state sponsored programs:
      Academic Year Research Funds
      1979- 1980 $746,286
      1980- 1981 $908,766
      1981- 1982 $403,799
      1982- 1983 $629,602
      1983- 1984 $702,160

      . Section 1983 creates a federal cause of action, but does not by itself confer federal jurisdiction on federal courts. The jurisdictional counterpart of section 1983 is 28 U.S.C. § 1343(3) (1948). See Hagans v. Lavine, 415 U.S. 528, 534-36, 94 S.Ct. 1372, 1378-79, 39 L.Ed.2d 577 (1974). Jurisdiction of this action is sufficiently pled under 28 U.S.C. § 1343(3). Although the complaint fails to expressly invoke section 1983, the omission is not fatal because the complainant factually pled a section 1983 claim, in addition to invoking the protection of the fourteenth amendment.

      . The "public function" state action analysis is employed to determine whether the function performed has been "traditionally the exclusive prerogative of the state." See Jackson v. Metropolitan Edison, 419 U.S. 345, 353, 95 S.Ct. 449, 454, 42 L.Ed.2d 477 (1974); See also Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). In cases where the state, by its laws, has compelled a particular act, the "state compulsion" test is used. See, e.g., Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Peterson v. Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323 (1963).

      . Section 1232g of FERPA provides in relevant parts that:
      (a)(1)(A) No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students ... the right to inspect and review the education records of their children.
      (2) No funds shall be made available under any applicable program to any educational agency or institution unless the parents of students ... are provided an opportunity for a hearing by such agency ... to challenge the content of such student’s education records, in order to insure that the records are not inaccurate, misleading, or otherwise in violation of the privacy or other rights of students, and to provide an opportunity for the correction or deletion [of any inaccuracies].
      (b)(1) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of educational records ... of students without the written consent of their parents to any individual, agency or organization____


source: Caselaw Access Project

author: CLARIE, Senior District Judge.

license: Public Domain

text:
    ARDEN HOUSE, INC. v. Stephen J. HEINTZ, Commissioner, Connecticut Department of Income Maintenance and Margaret Heckler, Secretary, Department of Health & Human Services.
    Civ. No. H-84-1065 (TEC).
    United States District Court, D. Connecticut.
    June 13, 1985.

      John C. King, Updike, Kelly & Spellacy, Hartford, Conn., for plaintiff.
    Arnold Menchel, Edmund Walsh, Kenneth Graham, Asst. Attys. Gen., Joseph Lieberman, Atty. Gen., Hartford, Conn., for the State.

      Frank Santoro, Asst. U.S. Atty., Alan H. Nevas, U.S. Atty., New Haven, Conn., for the U.S. Government.
   RULING ON DEFENDANTS’ MOTION TO DISMISS

CLARIE, Senior District Judge.

The defendants, Stephen J. Heintz, Commissioner, and the State Department of Income Maintenance (DIM), have moved to dismiss the plaintiff’s complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6), on the grounds that the Court is without jurisdiction over the subject matter of the complaint and that the complaint fails to state a claim against all defendants upon which relief can be granted. Heintz is the Connecticut Commissioner of Income Maintenance charged with administering and implementing the State Medicaid Program. The defendant Connecticut DIM is the state agency charged with administering the Medicaid program pursuant to 42 U.S.C. § 1396a(a)(5). The plaintiff, Arden House, a long-term care facility, has instituted the above action challenging the Connecticut reimbursement system for skilled nursing facilities as violative of state law and the federal Medicaid Act.

Through its amended complaint, the plaintiff has sought to circumvent the defendants’ jurisdictional objections. The Court finds that the plaintiff has failed to meet its burden of proving that under the facts of this case, the Court should assert jurisdiction. Further, the plaintiff has failed to state a claim upon which relief can be granted in that Arden House is not an intended beneficiary of the Medicaid Act and therefore has no standing to sue under 42 U.S.C. § 1983 for an alleged violation of said Act. The Court therefore grants the Motion to Dismiss.

Facts

Arden House filed its original complaint in the United States District Court for the District of Connecticut on September 28, 1984, alleging a state violation of federal Medicaid law and naming as defendants Stephen J. Heintz and the Connecticut DIM. The complaint alleged that the protective reimbursement rate set by the state and paid to the plaintiff for the years 1979-1982 inclusive did not reimburse the plaintiff for “reasonable” costs incurred, thereby resulting in the loss to plaintiff of substantial sums of money which approximated $3,072,128.00. The plaintiff claimed that the state reimbursement rate violated Conn.Gen.Stat. § 17-314 which the plaintiff alleged required determination of reimbursement rates “on the basis of a reasonable payment for services which takes into account the cost of such services.”

By their Motion to Dismiss, the defendants Heintz and the DIM challenge the plaintiff’s complaint on jurisdictional grounds, claiming that a suit against a state or one of its agencies in federal court is barred by the Eleventh Amendment grant of sovereign immunity where the state has not consented to such suit. The defendants further challenge the complaint on the ground that the plaintiff failed to state a claim upon which relief could be granted in that the plaintiff (1) is not a proper party to bring a § 1983 claim and (2) is a voluntary participant and contractual party with the state in a provider agreement which must be challenged under state contract law in state court. Finally, the defendants represent that the reimbursement rate system implemented in Connecticut does not mandate specific reimbursement rates equivalent to a facility’s actual costs and therefore there has been no violation of federal law in any case.

In response to the defendants’ Motion to Dismiss, Arden House has filed an amended complaint dated January 22, 1985, in which the plaintiff added Margaret Heckler, Secretary of Health and Human Services, as a defendant in an attempt to circumvent the jurisdictional restrictions imposed by the Eleventh Amendment grant of immunity to the states. The defendant Margaret Heckler is the federal agent charged with administering and implementing the Medicaid Act, including the approval of state reimbursement rates and systems.

The defendants Heintz and the DIM objected to the Amended Complaint on the grounds that the complaint improperly sought to sue the defendant Heintz, in his individual as well as his official capacity and in so doing failed to make specific allegations of Heintz’ individual liability, and that the complaint alleged new statutory and constitutional torts against the state barred by the statute of limitations.

Discussion of Law

The Court is asked by this Motion to Dismiss a suit brought by a private long-term care facility against the State and its federal administrative agent for alleged violations of state and federal Medicaid law and federal discrimination law. The Court will not address the issues raised by the defendants’ Objection to the Amended Complaint because the Court finds that sufficient grounds for dismissal can be found on the basis of the allegations made within either the Complaint or the Amended Complaint.

I. Jurisdiction

A. § 1983 Claim

Jurisdiction of a § 1983 claim for violations of the Social Security Act is properly founded on 28 U.S.C. § 1331(a). Yapalater v. Bates, 494 F.Supp. 1349, 1355 (S.D.N.Y.1980). A § 1983 claim supports jurisdiction under 28 U.S.C. § 1343(3) unless the claim is either “frivolous or so insubstantial as to be beyond the jurisdiction of the district court.” Id. at 1356. While § 1343(3) confers jurisdiction on the district court to entertain a constitutional claim, such claim must be substantial enough to support federal jurisdiction, permitting the district court to hear the conflict between federal and state law as a matter of pendent jurisdiction. Hagans v. Levine, 415 U.S. 528, 536, 94 S.Ct. 1372, 1378, 39 L.Ed.2d 577 (1974). If there is no substantial federal question presented, then jurisdiction will not be found and the claim will be considered unsound or “obviously without merit.” Id. at 537, 94 S.Ct. at 1379.

The United States Supreme Court has found that a § 1983 remedy encompasses violations of federal statutory law as well as constitutional law and that § 1983 claims are a proper method to secure compliance with the Social Security Act. Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2502, 65 L.Ed.2d 555 (1980). The Supreme Court has also found that an allegation of conflict between federal and state law does not in itself give rise to a claim securing jurisdiction under § 1343(3). Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 615, 99 S.Ct. 1905, 1914, 60 L.Ed.2d 508 (1978).

Section 1983 is purely remedial; it does not confer any substantive rights. Chapman, supra, at 617, 99 S.Ct. at 1915. In order to determine whether a plaintiff has a valid § 1983 claim, the proper inquiry is (1) whether the conduct complained of was committed by a person acting under color of state law and (2) whether the conduct deprived the plaintiff of a right secured by the United States Constitution or laws. St. Joseph Hosp. v. Electronic Data System, 573 F.Supp. 443, 446 (S.D.Texas 1983). Only when these two criteria are met can a claimant invoke the jurisdiction of the district court. Under the facts of the present case, the test of a proper § 1983 claim is whether the claimant can “demonstrate that it has suffered an injury by the administration of a joint federal-state cooperative program and was an intended beneficiary of that program.” Balf Co., Inc. v. Gaitor, 534 F.Supp. 600, 604 (D.Conn.1982). (Emphasis added).

The defendants contend, and the Court finds, that under this analysis, Arden House is not an intended beneficiary of the Medicaid program. St. Joseph Hosp., supra, 573 F.Supp. at 447; Geriatrics, Inc. v. Harris, 640 F.2d 262, 265 (10th Cir.1981). A Medicaid provider has no property interest in prospective reimbursement payments; Grossman v. Axelrod, 646 F.2d 768 (2d Cir.1981); nor does the provider have a protectible interest in a particular rate of reimbursement. Id. at 771. Similarly, a provider such as the plaintiff in the instant case is barred from suing a state or state agency in federal court for retrospective payments by the Eleventh Amendment immunity from suit granted to the states. Fla. Dept. of Health v. Fla. Nursing Home Ass’n., 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The plaintiffs § 1983 claim must fail.

B. Pendent Jurisdiction

It is a rule of law that the Eleventh Amendment prohibits a claimant from bringing a suit in district court against state officials on the basis of state law where the relief sought would have an effect upon the state treasury. Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 917, 79 L.Ed.2d 67 (1984). In the present action, the plaintiff alleges both state and federal law claims and seeks to invoke pendent jurisdiction. The argument for pendent jurisdiction must fail.

The plaintiff is barred from bringing suit in federal court on the state-law claim. Furthermore, § 1983 does not override a state’s Eleventh Amendment immunity against suits seeking monetary relief. Quern v. Jordan, 440 U.S. 332, 345, 99 S.Ct. 1139, 1147, 59 L.Ed.2d 358 (1979). Therefore, even if the plaintiff’s constitutional claim was valid and the district court applied pendent jurisdiction, the Court would be barred by the Eleventh Amendment from granting any monetary relief on the claim. Pennhurst, 104 S.Ct. at 918. A plaintiff may not fashion its claims in such a way as to permit pendent jurisdiction as a means to evade the immunity granted to the states by the Eleventh Amendment. Id., 104 S.Ct. at 919.

The Supreme Court has found that “a suit against state officials for retroactive monetary relief, whether based on federal or state law, must be brought in state court.” Pennhurst at 920 (emphasis added); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Thus, even if the plaintiff herein has valid constitutional claims, the plaintiff’s suit for damages in the amount of $3,500,000.00 is one properly to be heard at the state court level. The plaintiff in this case has improperly invoked the jurisdiction of the district court.

II. Exhaustion

The Supreme Court has found that a claimant need not exhaust state administrative remedies as a prerequisite to filing suit under § 1983. Patsy v. Board of Regents of State of Fla., 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). If the plaintiff Arden House has a valid discrimination claim it could properly invoke the jurisdiction of the district court. The Court has found, however, that the plaintiff has no such claim. Furthermore, evidence exists of Congressional intent to remove the burden of federal court suits for money damages against states by Congress’ action in repealing a provision of the Medicaid Act requiring states participating in the federal Medicaid program to waive immunity to suits in federal court brought by providers. Hosp. Ass’n of New York v. Toia, 435 F.Supp. 819, 821 (S.D.N.Y.1977); 42 U.S.C. § 1396a(g) (repealed). Congress’ rationale in repealing the provision was to avoid an “unreasonable burden of suits ... which will make efficient program administration virtually impossible.” Id. at 825. Moreover, Congress seriously questioned the constitutionality of a provision waiving the states’ Eleventh Amendment immunity. Id. at 824.

Congress has shown an intent to dissuade Medicaid providers from bringing suits for monetary relief in federal court. Connecticut provides an administrative appeal process of which the plaintiff has not availed itself, despite the plaintiff’s allegation that it has suffered under the state’s reimbursement rate method without remedy for the years 1979-1982 inclusive. Section 17-314 of the Connecticut General Statutes provides the statutory authority for the Commissioner of the DIM to set rates for long-term care facilities such as the plaintiff herein. Regulations promulgated pursuant to the Commissioner’s authority to set reimbursement rates provided an appeal process for persons aggrieved by the rates determined pursuant to §§ 17-311-17-314 inclusive. Regulations of Connecticut State Agencies § 17-311-101 et seq., Part IV, “Relating to Rules of Practice for the Arbitration of Items of Aggrievement on Rates Determined Pursuant to § 17-311 through § 17-314 as Amended by P.A. 77-574.”

Arden House has shown no evidence that it has resorted to the available state remedial process, nor has the plaintiff given any indication that it is aware of such a process. Had the plaintiff pursued the state remedies available to it, the issues the plaintiff now brings to the district court could have been properly considered and resolved. Delaware Convalescent Center, Inc. v. Beal, 488 Pa. 292, 412 A.2d 514, 515 (Pa.1980). The plaintiff has prematurely brought its claims before this Court.

III. Abstention

The district court properly invokes the abstention doctrine “when a state has established an administrative framework to formulate policy and decide cases in an area of legitimate state interest.” St. Joseph Hosp. v. Electronic Data Systems, 573 F.Supp., supra, at 451. Where, as here, a federal act has established a cooperative state-federal program “wherein the states actually administer and oversee the payment of benefits and related matters,” the district court’s invocation of the abstention doctrine is proper. Id. at 451-52.

Even in a suit with valid federal claims, the abstention doctrine permits the bifurcation of claims by allowing the referral of unclear issues of state law to the state court. Pennhurst, supra, 104 S.Ct. at 920. Such is not the case in the instant lawsuit. The plaintiff, Arden House, has failed to state a valid federal claim and its case is improperly before this Court.

The Court grants the defendants’ Motion to Dismiss.

SO ORDERED.


author: GEORGE HOWARD, Jr., District Judge.

text:
    Mary BOYD, Jamesina Boyd, Patricia Beverly, Diane Baldwin and Orlando Johnson v. BOARD OF DIRECTORS OF the McGE-HEE SCHOOL DISTRICT NO. 17, Buford Conner, Individually and in his official capacity as Superintendent of the McGehee School District No. 17, Robert Hardin, Carol Lucky, Breck Smith, Robert Prosser and Tyrone Broomfield, Individually and in their official capacities as Members of the Board of Directors of the McGehee School District No. 17, and Sammy Gill, Individually and in his official capacity as a Coach for the McGehee School District No. 17, Defendants.
    No. PB-C-83-371.
    United States District Court, E.D. Arkansas, Pine Bluff Division.
    June 14, 1985.

      Ben Johnson, Jr., Legal Services of Arkansas, Monticello, Ark., for plaintiffs.
    Gibbs Ferguson, McGehee, Ark., G. Ross Smith, Little Rock, Ark., for defendants.
   MEMORANDUM OPINION AND ORDER

GEORGE HOWARD, Jr., District Judge.

This action was filed on October 7, 1983, under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343, 2201 and 2202 by Jamesina Boyd and Orlando Johnson, black students, of McGehee High School in McGehee School District No. 17, Desha County, Arkansas, by and through their parents and guardians, praying a preliminary and final injunction requiring defendants, Board of Directors of McGehee School District No. 17, Buford Conner, individually and in his capacity as Superintendent of the McGehee School District No. 17, Robert Hardin, Carol Lucky, Breck Smith, Robert Prosser, Tyrone Broomfield, individually and in their capacities as members of the Board of Directors of McGehee School District No. 17, and Sammy Gill, individually and in his capacity as a coach for the McGehee School District No. 17, to certify Jamesina Boyd, a black female high school senior, as 1983-84 McGehee High School homecoming queen instead of certifying Kristy Wynn, a white female high school senior. The plaintiffs alleged that Boyd had polled the highest number of votes — a majority — cast by members of the football team, twenty-eight votes of the fifty-four mémbers of the team, during an election for homecoming queen, but defendant Gill had manipulated the results of the election, because of the race of Boyd, so that Wynn could serve as homecoming queen.

The Court is persuaded that the election conducted pursuant to this Court’s order rendered the issue involving the selection of homecoming queen moot, and, therefore, the central issue to be resolved is whether the suspension of Johnson from the McGehee High School football team, within the context of the facts in this case, constituted an infringement of Johnson’s right to freedom of expression as secured under the First and Fourteenth Amendments to the Federal Constitution. A collateral issue, but nevertheless significant, is whether Johnson was denied procedural due process of law in connection with his suspension.

RELEVANT FACTS

On September 12, 1983, an election was conducted by the head football coach, Sammy Gill, for the position of High School homecoming queen for the 1983-84 school year. In accordance with the custom and practice of the McGehee High School, only members of the high school football team were eligible to participate in the election. There were fifty-four members constituting the current team consisting of twenty-eight white and twenty-six black players.

Four female high school students were nominated for the position, three whites and one black. The black nominee was Jamesina Boyd. The players were directed to indicate their choice for queen by the “show-of-hands” as each nominee’s name was called. Purportedly, Boyd, the black nominee, received the highest number of votes and should have been designated queen. However, Gill directed the players to indicate their preference between the two white nominees who had polled the highest number of votes between the three white nominees in the initial vote. Wynn won the election involving the two white nominees. Gill then directed the players to vote their preference between Boyd and Wynn. This election was by secret ballot— each player indicated his preference on a slip of paper and delivered the slip to Gill. Gill took immediate possession of the slips and departed for his home without announcing the results. The following day, Gill announced that Wynn, the white nominee, had won the last election and, consequently, was the 1983-1984 McGehee High School homecoming queen.

Practically all of the black players believed that Boyd had won the election initially and that Gill had manipulated the election so that one of the white nominees could be designated queen. A series of conferences were held between the black players, their parents, Gill and the Board of Directors of the District. The Board of Directors elected to take no action on the matter, but agreed to draft objective guidelines to govern the selection of homecoming queens in future years. Gill refused to modify the announced election results.

On September 23, 1983, twenty-five of the twenty-six black players, in order to protest what they perceived to have been an act of racial discrimination in the selection of the queen, walked out of a pep rally during the afternoon and refused to participate in the game scheduled for that night.

On September 26, 1983, Johnson and the other twenty-four black players participating in the “boycott” of the scheduled game were suspended from participating on the football team for the remainder of the 1983-84 season. There were approximately four more scheduled games to be played, including the school’s traditional homecoming game.

Plaintiffs contend that the black players were suspended because of their race and as punishment for the exercise of their right of “freedom of expression.” On the other hand, defendants assert that the black players were suspended because they had violated an unwritten rule maintained by Gill to the effect that any player who missed a game or football practice “without good cause” or “proper excuse” would be suspended from the team; and that the suspension was not because of race or the exercise of First Amendment rights.

On October 11, 1983, Orlando Johnson filed his motion for preliminary injunction requiring defendants to reinstate him as a player on the football team.

On October 14, 1983, this Court entered its order directing defendants to reinstate Johnson as a member of the football team immediately and afford him the same opportunities he enjoyed as a team member prior to his suspension.

On October 20, 1983, Johnson filed his motion for an order directing defendants to show cause why defendants should not be held in contempt for violating this Court’s order of October 14, 1983, directing defendants to reinstate Johnson as a member of the football team. The motion alleges:

4. That pursuant to a motion for a preliminary injunction by Plaintiff and subsequent to an evidentiary hearing held October 11, 1983 upon said motion, this Court granted a preliminary , injunction, entered October 14, 1983 directing Defendant as follows:
The Defendants and their agents, officers, servants, employees and attorneys are enjoined and directed to reinstate Orlando Johnson as a member of the McGehee High School football team immediately and are further directed to afford Orlando the same opportunity he enjoyed as a team member prior to the incident resulting in this action until this cause has been heard on the merits____
5. That Plaintiff, Orlando Johnson, was reinstated by the McGehee High School football team on October 14, 1983 and allowed to participate in the football game in which the McGehee High School football team participated on that date.
6. That from the next regularly scheduled practice session on October 17, 1983, until Wednesday, October 19, 1983, the Defendant, head football coach Sammy Gill, has violated the Court’s Order reinstating Plaintiff, Orlando Johnson, in the following respects:
(a) Plaintiff, Orlando Johnson, was switched from his starting “defensive end” position on the McGehee High School football team to the position of “tail back”, a position he has never played on any organized level.
(b) Plaintiff, Orlando Johnson, was excluded from a team meeting.
(c) That Defendant Sammy Gill has refused to take necessary action to protect the health and safety of Plaintiff, Orlando Johnson, from acts and omissions of his teammates as a result of animosity because of Plaintiff, Orlando Johnson’s participation in a September 23, 1983 boycott of a McGehee High School football game.
7. That the above-described violation of this Court’s order made for an intolerable situation in which the very life, health, and safety of Plaintiff, Orlando Johnson, were endangered and forced him to refrain from participating on the McGehee High School football team as he was to be allowed pursuant to this Court’s October 14, 1983 Order.

On December 12, 1983, the Court conducted a hearing on the merits.

DECISION

I.

FIRST AMENDMENT ISSUE Before addressing the issue to be resolved, the Court deems it fitting to delineate some general observations pertaining to the rights of students as articulated by relevant court decisions:

The Court of Appeals for the Eighth Circuit in Strickland v. Inlow, 485 F.2d 186 (1973) made the following comment:

The law with respect to the rights of students is still developing____ The responsibility for public education is primarily the concern of the states. The exercise of this responsibility, however, must be consistent with federal constitutional requirements____

In Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), the Supreme Court observed:

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years____
In order for ... school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.
... A student’s rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects____

After carefully scrutinizing the evidence contained in this record, the black members of the McGehee High School football team who took part in the demonstration had reasonable grounds to believe that Coach Gill had purposely manipulated the election to preclude Boyd from serving as homecoming queen because of her race and col- or. This conclusion is predicated on the following findings:

1. During the 1975-76 school term, a black female contestant for homecoming queen was prevented from serving as queen, although she had polled more votes than the white nominees, because Gill felt that “McGehee High School was not ready for a black homecoming queen.”

Tommy Morrison, a witness for plaintiffs, testified that in 1976, while doing his practice teaching at the McGehee High School, as a University of Arkansas college student, he was present during the 1976 homecoming queen election and that the black nominee polled the highest number of votes, but was made first alternate by Gill instead of homecoming queen.

2. As head coach, Gill personally created and fostered a racial atmosphere in the athletic department of the McGehee High School. Gill often referred to black players as “niggers” and specifically referred to Johnson as his “little black nigger from Chicago.” Gill admitted that he had used the racial slur.

Tommy Morrison also testified that Gill confronted him often with racist jokes. One in particular that Morrison remembered was: “That the way to prevent a black man from raping a white woman was to roll the black man a basketball.”

Tommy Ireland, who is currently head coach at Crossett, Arkansas High School, testified that he was present during a junior high school basketball game in Gill’s gymnasium in which Gill officiated, when the game ended prematurely, after Gill directed a basketball coach and his team to “get their black asses out of my gym.”

Dennis Coleman, a former student of McGehee High School, testified that Gill often downgraded black students from Eudora, Arkansas, as those “niggers from Eudora.”

3. The failure of Gill to announce immediately the results of the election between Boyd and Wynn; and the purported disappearance of the ballots, which prevented the players from inspecting the ballots, created a strong suspicion of manipulation of the election by Gill.

While it is well settled that public education in our country is the responsibility of school administrators and courts are reluctant to intervene in conflicts which develop in the day to day operation of a school system, this does not mean either that free expression, as enunciated under the Federal Constitution, must exist in a vacuum as opposed to a living reality on the school campus, or that school officials, as agents of the state, may stifle free expression, whether by written or unwritten policies, where, as here, the expression does not “materially and substantially interfere with the requirement of appropriate discipline in the operation of the school” and the rights of others. Burnside v. Byars, 363 F.2d 744 (5th Cir.1966).

It is clear from this record that 49% of the fifty-four member football team cherished the opportunity and honor, and to this end strove conscientiously to hasten the day, when the school’s first black homecoming queen could be elected. While the 1976 incident might have dampened their spirit, the black players never lost hope. The Court is also persuaded that there were at least two white players who shared the same views of their black associates. The black players believed that they had achieved that goal in the 1983 election, but only to have their hopes frustrated and the long sought after goal nullified by Coach Gill. Their first act to rectify what was perceived as racism in its truest form was to confer with Coach Gill. Without success, the black players and their parents sought help from the Board of Directors. The Board assuming a posture of what the black players perceived as a hands off approach to the problem, the black players were left without any recourse other than what Americans, from the very inception of this Republic, regard as fundamental and basic in a democracy, namely, “freedom of expression,” when peaceful and in good order, to communicate views on questions of group interest. First, the black players walked out of the pep rally and, secondly, refused to participate in a scheduled game. This action was without any substantial intrusion of the work and discipline of the school. Johnson has met the burden of establishing that his conduct was constitutionally protected and that his action was the motivating factor in Coach Gill’s act in suspending him from the football team, in effect permanently. Coach Gill has not demonstrated that he would have suspended Johnson from the team in the absence of the protected conduct. Nor is the Court persuaded that Coach Gill’s unwritten policy that a player is automatically suspended who, “without good cause” or “proper excuse”, misses a practice session or fails to participate in a scheduled game takes precedent over a student’s right of free expression in the context of the factual setting of this case. Moreover, such a policy, which is purely subjective and depends upon the idiosyncrasies of the head football coach can neither frustrate nor chill the First Amendment rights of students. There are no standards to determine “without good cause” or “proper excuse”, objectively. Peaceful protest by students in the factual backdrop of this controversy may not be contingent upon the uncontrolled will of the head coach.

Defendants argue that what is involved here is not “pure speech” — communication of ideas — but a form of protest which is comparable to picketing. But the Court hastens to emphasize that the Supreme Court has made it crystal clear that picketing and parading do constitute methods of expression warranting First Amendment protection. Shuttlesworth v. Birmingham, 394 U.S. 147, 152, 89 S.Ct. 935, 939, 22 L.Ed.2d 162; Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471.

Given the fact that it has been the custom and practice of the Board of Directors of the MeGehee School District to delegate to the head football coach the responsibility to supervise the selection of the homecoming queen each year and the proof further demonstrates that the board members did not personally participate in the suspension of Johnson, the Court holds that only Coach Gill may be held accountable to Johnson and Mason for the deprivation of their First Amendment rights under this Section 1983 action.

II.

PROCEDURAL DUE PROCESS OF LAW

The question here for resolution is whether Johnson was entitled to procedural due process — notice of the charge against him and an opportunity to present his side of controversy — before Coach Gill suspended Johnson from the football team for the remainder of the term.

In analyzing the question, it is important to recognize that Johnson was a senior and there were approximately four games, including the traditional homecoming game, remaining on the school’s schedule for the current term. Coach Gill testified that Johnson was an outstanding athlete and the 1983 season was Johnson’s last opportunity to participate in football at the high school level. Coach Gill and other witnesses acknowledged that participation in high school sports is vital and indispensible to a college scholarship and, in essence, a college education. In other words, Johnson's continued status as a member of the MeGehee High School football team during his last year was very important to Johnson’s development educationally and economically in the future. Thus, Johnson’s privilege of participating in interscholastic athletics must be deemed a property interest protected by the due process clause of the Fourteenth Amendment. Johnson’s interest was indeed embraced in those fundamental aspects of life, liberty and property which the Federal Constitution is designed to protect and secure. See, Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). Johnson’s interest was something more than a desire to participate in a single season of interscholastic athletics without the belief and desire of realizing any tangential benefits accruing to him in the future.

Absent any clear urgency for acting prior to a hearing, Johnson was constitutionally entitled to procedural due process before Coach Gill could suspend him from the MeGehee High School football team for the rest of the season. See, Strickland v. Inlow, 485 F.2d 186 (8th Cir.1973). There were no urgent circumstances confronting Coach Gill, the educational process or other students at the time. It is clear from the evidence that the “boycott” was not disruptive in any way. Of course, it goes without saying where there exists a clear urgency, procedural due process is afforded by granting a hearing within a reasonable time after the fact — the suspension. The Court is persuaded that Johnson has stated a cause of action under Title 42 U.S.C. § 1983 against Coach Gill, but not against the other defendants.

III.

CONTEMPT

Johnson's motion for an order of the Court citing Gill for contempt of this Court’s Order of November 14, 1983, directing the reinstatement of Johnson as a member of the football team and sanctions are denied. Johnson argues that Gill, after reinstating Johnson to the team, “attempted to switch [Johnson] from his original position as a starting defensive end to tail back ... [which] presented a hazard to Johnson’s health and safety and resulted in [Johnson] resigning from ... the team on October 19, 1983.”

After carefully considering the evidence and argument of counsel, the Court holds that Johnson has failed to establish, by a preponderance of the evidence, that Gill deliberately switched Johnson to tail back in order to place him in a vulnerable position or that Gill had reason to believe that the white players would not block for Johnson when he carried the ball. It must be remembered that because of the controversy which centered around the selection of the homecoming queen, approximately 40% of the players remained off the team when Johnson was reinstated. Gill felt, under these circumstances, that he had to make certain readjustments in team positions to cope with the changed conditions.

The Court has carefully considered the additional requests of plaintiffs for sanctions against defendants for purportedly not complying with an order of the Court requiring them to respond to certain discovery requests prior to trial. The Court finds that this request for relief is without merit and denies any relief.

IV.

RELIEF AFFORDED

1. Inasmuch as the Court has found that the election held pursuant to this Court’s order for homecoming queen has rendered Boyd’s claim moot, the Court holds that she is not entitled to any relief and her complaint is dismissed.

2. Because of the deprivation of federal rights sustained by Johnson and Mason, the Court awards Johnson and Mason nominal damages in the sum of $250.00 each.

Further, because of Coach Gill’s wilful, malicious and conscious indifference to the federal constitutional rights of Johnson and Mason, coupled with Coach Gill’s invidious racial discriminatory action toward the black players, the Court awards Johnson and Mason punitive damages in the sum of $1,000.00 each.

3. In accordance with the findings discussed herein, this action is dismissed with prejudice as to defendants Board of Directors of McGehee School District No. 17, Buford Conner, Superintendent of McGehee School District No. 17, and Robert Hardin, Carol Lucky, Breck Smith, Robert Prosser and Tyrone Broomfield, members of the Board of Directors of McGehee School District No. 17.

4. Johnson and Mason are entitled to recover their cost expended. Counsel for Johnson and Mason is directed to file the appropriate pleading in support of his fee request.

_

      . Plaintiffs amended their complaint on October 28, 1983, to request monetary damages.

      . On October 11, 1983, this Court directed Gill to conduct a new election employing a voting machine acquired from Desha County officials. The new election was held on October 12, 1983, resulting in the white candidate receiving a majority of the votes cast — thirty votes for Wynn and twenty-four for Boyd.
      The Court is not persuaded that this issue remains viable under the theory that it comes within the "capable of repetition, yet evading review” exception pronounced in Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 514-16, 31 S.Ct. 279, 283, 55 L.Ed. 310. There is no reasonable expectation that Boyd, who was a graduating senior, would be subjected to the same action again.

        Plaintiff Boyd did not appear during the course of the trial on the merits. While the Court is of the view that the issue regarding the election of homecoming queen is moot, Boyd’s failure to appear seemingly would support a finding of abandonment of any claim for final relief.

      . Coach Gill did not produce the ballots for inspection by the players. Also, Coach Gill was unable to produce the ballots in court because the ballots were inadvertently misplaced by him or some member of his immediate family.

      . Only Orlando Johnson sought reinstatement to the football team. However, on October 24, 1983, Mark Mason, by and through his mother, moved to intervene seeking, among other things, reinstatement to the football team in his own behalf and as a class representative of the twenty-two (22) other black players. On October 28, 1983, this Court entered its order granting Mason permission to intervene as a party-plaintiff, but, denied Mason’s request for a temporary restraining order directing his reinstatement and the class he sought to represent on the grounds that the complaint was not verified and petitioner had failed to comply with Rule 65(b) of Fed.R.Civ.P. in failing to attach affidavits setting forth specific facts indicating the irreparable harm that was likely to accrue if the temporary restraining order was denied.
      The Court also denied petitioner's request to certify the proceeding as a class action since petitioner had failed to demonstrate that the action met the prerequisites of Rule 23 of Fed.R. Civ.P. for class certification.
      Mason, like Johnson, was suspended from the football team for participating in the ''boycott" of a game scheduled for September 23, 1983. Mason also seeks damages against defendants.

      . Johnson was a senior and the 1983 football season was his last year.


author: EDWARD C. REED, Jr., District Judge.

text:
    Billy R. SHAPLEY, Petitioner, v. Vernon G. HOUSEWRIGHT, et al., Respondents.
    No. CV-R-84-417-ECR.
    United States District Court, D. Nevada.
    June 14, 1985.

      Billy R. Shapley, in pro. per.
    D. Brian McKay, Atty. Gen. by Brian R. Hutchins, Deputy, Carson City, Nev., for respondents.
   ORDER

EDWARD C. REED, Jr., District Judge.

Billy Ray Shapley petitioned this Court on July 18, 1984, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that while incarcerated in the Nevada State Prison he had been denied 1) certain statutory good time credits in violation of NRS 209.443(1), (2) and 2) additional work/study time credits in violation of NRS 209.443(3) and Prison Procedure No. 344.

Shapley was tried in state court and, on June 25, 1976, convicted of five separate counts of forgery. He received a sentence of ten years on each count of forgery, with the sentences to run consecutively. He appealed his conviction on several grounds and the conviction was affirmed on March 30, 1977. Shapely v. State, 93 Nev. 184, 561 P.2d 1339 (1977).

Shapley then petitioned the state district court on August 17, 1982, for a writ of habeas corpus alleging that he had been denied certain statutory good time credits while in prison and also denied additional work/study time credits. A hearing was held in the state habeas case on May 18, 1983, and on May 25, 1983, the state district court denied Shapley’s petition on the grounds that Shapley’s statutory good time credits had been properly computed as to each sentence under NRS 209.443, where each sentence is separate for the purpose of computing good time credits. In addition, the court found that Shapley was capable of doing light work, that the light work he preferred was the preparation of various legal matters in state and federal court and that the prison had offered Shapley reasonable alternatives to allow him to earn work time credits even in the light of his physical conditions, which alternatives he had declined. The court found that Shapley had not complied with the conditions of Prison Procedure No. 344 and, therefore, was not entitled to work/study credits for disabled or handicapped prisoners under that procedure.

Shapley appealed the decision of the state habeas court to the state supreme court on June 6, 1983. Not long after, however, he withdrew his appeal and petitioned the district court for a rehearing which was denied on March 15, 1984. On March 21, 1984, Shapley again appealed to the state supreme court and on May 8, 1984, that court denied the appeal on the grounds that the appeal had not been timely filed under NRS 34.380(3). The court found that Shapley’s “motion for rehearing did not operate to toll the time for appeal and the order denying rehearing is not appealable,” citing NRS 177.015, NRS 34.-380(3) and Alvis v. State Gaming Control Bd., 99 Nev. 184, 660 P.2d 980 (1983).

Before bringing a federal habeas action, a petitioner is required to exhaust his state court remedies on all of the issues presented. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). See also Hall v. Sumner, 682 F.2d 786 (9th Cir.1982).

The exhaustion requirement has not been met unless the highest state court has denied the claim on the merits; a denial on procedural grounds is insufficient. Harris v. Superior Ct. of St. of Cal., Cty. of Los Angeles, 500 F.2d 1124, 1126 (9th Cir.1974) (en banc), cert. denied, 420 U.S. 973, 95 S.Ct. 1394, 43 L.Ed.2d 652 (1975). However, under the futility doctrine, where pri- or decisions of the state courts indicate that presentation of the claim to the state supreme court would be futile, the exhaustion requirement has been met. Gardner v. Pitchess, 731 F.2d 637, 640 (9th Cir.1984); Sweet v. Cupp, 640 F.2d 233, 236 (9th Cir.1981). In addition, where state procedural obstacles preclude an effective state remedy, the federal courts must take jurisdiction. Bartone v. United States, 375 U.S. 52, 84 S.Ct. 21, 11 L.Ed.2d 11 (1962) (per curiam).

In the present case, it would be futile and a waste of judicial resources to require Shapley to present his habeas claim again to the state courts before allowing his petition to be heard here. For purposes of this matter he has exhausted his state court remedies.

Respondents moved this Court, pursuant to Fed.R.Civ.P. 12(b)(1), (6), to dismiss Shapley’s petition for writ of habeas corpus. Shapley responded with accompanying points and authorities and additional exhibits and this Court ordered that respondents’ motion to dismiss be treated as a motion for summary judgment pursuant to Fed.R.Civ.P. 12(b) and 56 and that the parties be given appropriate periods of time to supplement the motion and the opposition with all appropriate material.

On February 28, 1985, respondents supplemented their motion for summary judgment and moved to strike the twelve page of documents in Shapley’s “Exhibit D”. Shapley responded to the motion to strike with arguments and points and authorities but failed to include affidavits or other competent evidence as required by Fed.R. Civ.P. 56(c) establishing the veracity of the documents.

Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 676, 677 (9th Cir.1984). The evidence must be viewed in the light most favorable to the non-moving party. Ward by and through Ward v. United States Department of Labor, 726 F.2d 516, 517 (9th Cir.1984); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1279 (9th Cir.1979), cert. denied, 445 U.S. 951, 100 S.Ct. 1600, 63 L.Ed.2d 786 (1980). Although the initial burden of showing no issue of material fact is on the proponent, Int. Un. of Bricklayers Etc. v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.1985); Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 883 (9th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983), the opponent must then present some significant probative evidence in opposition to the motion for summary judgment. Compton v. Ide, 732 F.2d 1429, 1434 (9th Cir.1984); General Business Systems v. North Am. Philips Corp., 699 F.2d 965, 971 (9th Cir.1983). He may not rely solely on the allegations in his pleadings. Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir.1984). Where the opponent is pro se, as in the present case, this Court will liberally construe his pleadings. See Id.

The record shows that Shapley was sent to the Nevada State Prison (Max) in Carson City in late June, 1976, to begin serving the first of his five consecutive ten year sentences. He had served and been paroled on three of the sentences at the time this action was filed and was serving the fourth.

Shapley claims that he was delayed on parole on each of his first three sentences because his statutory good time credits were incorrectly calculated. He asserts that where he was to serve two or more consecutive sentences, the aggregate total of the sentences should have been the basis for computation of good time credits, pursuant to 18 U.S.C. § 4161 and a liberal interpretation of NRS 209.443, which would have extended the reasoning of Biffath v. Warden, 95 Nev. 260, 593 P.2d 51 (1979) (an enhanced sentence is an additional penalty for one offense and therefore, should be combined with the penalty for the primary offense for purposes of computing good time credits) to his case. Respondents argue that Shapley's good time credits were correctly calculated pursuant to NRS 209.443 on the basis of five separate sentences of ten years each with the computation starting anew at the beginning of each sentence period. It is not in dispute that Shapley’s good time credits were calculated in the latter manner.

Shapley’s reliance on 18 U.S.C. § 4161, which provides for the aggregation of consecutive sentences to arrive at a basis upon which to compute the deduction for good time credits under federal law, is misplaced. § 4161 is available only to prisoners convicted of federal offenses and Shapley was imprisoned for violation of a state statute.

Shapley’s contention that this Court should construe NRS 209.443 differently from the way it was construed by the state district court is without merit. NRS 209.-443 provides that a peaceable and orderly prisoner who commits no serious infractions of the regulations, must be allowed a deduction for the period of time he is incarcerated amounting to:

2 months for each of the first two years;
4 months for each of the next two years;
and
5 months for each of the remaining years;
“and so on through as many years as may be the term of the sentence.”

“The ‘total good time made’ must be deducted from the maximum term imposed by the sentence,” the statute continues, and Shapley argues that, in the case of his five consecutive ten year sentences, the “term of the sentence” and the “term imposed by the sentence” should constitute one continuous term of 50 years imprisonment. The rule of Biffath, supra, holds that a primary sentence and an additional consecutive enhancement penalty are for one offense and, therefore, should be combined for the purpose of computing good time credits pursuant to NRS 209.443. The state district court found that Biffath was clearly distinguishable from the present case because each of Shapley’s sentences arose from a separate and distinct criminal offense and, therefore, each sentence was separate under NRS 209.443. We agree.

In addition, we find that this is a case of administrative interpretation and application of a Nevada statute by a branch of state government and that no federal question is presented where Shapley does not state facts showing that he was treated differently from others in a similar situation. The evidence shows that all prisoners in the Nevada State Prison who are serving consecutive sentences for separate offenses have their good time credits calculated in the same manner as were Shapley’s with each sentence treated as a separate entity for this purpose. Shapley’s equal protection claim therefore fails. See Sturm v. California Adult Authority, 395 F.2d 446, 448-49 (9th Cir.1967) (per curiam), cert. denied, 395 U.S. 947, 89 S.Ct. 2021, 23 LEd.2d 466 (1969) (statutory provisions empowering state agency to determine sentences raise no federal question, for such matters are determined by the state).

A further review of the record shows that when Shapley first arrived at Max in June, 1976, he was offered a prison job but refused, saying that he wanted time to pursue his appeal. In December, 1976, Shapley was assigned by the prison Classification Committee to “cellhouse utility,” a prison job position requiring some light physical activity. In May, 1978, while working at this job assignment, Shapley fell and injured his knee. He asked for and received medical attention for his knee which culminated in arthoroscopic surgery on the knee on March 25, 1983.

On June 29, 1978, following the injury to his knee, Shapley requested that he be “medically unassigned” by the prison Classification Committee and the request was granted. “Medically unassigned” according to testimony means that the prisoner is unable to perform some assigned job function within the prison system, due to a medical disability or handicap. According to prison authorities, a doctor does not have to certify a prisoner as medically unassignable and a prisoner may be so classified on his own request. While the request is seldom denied, the authorities state that Shapley was not encouraged to seek this status because he would lose eligibility for additional work/study time credits while he was unassigned and not working at a prison job.

Testimony at the state habeas hearing shows that, even though medically unassigned since June, 1978, Shapley has been able to walk daily to the culinary from his cellblock, walk to the visiting section and visit the law library on almost a daily basis. From March 29 through April 2, 1982, he helped move the law library and shelve the books. The state court, therefore, found him capable of doing light work.

Since June, 1978, Shapley has not held a prison job assignment although he was offered jobs in May, 1981, January 12, 1982, and November 22, 1982, according to testimony at the state habeas hearing. Instead, Shapley has pursued hobbycraft leatherwork in his cell although it is not clear from the evidence exactly what this hobbycraft involves.

Work/study time credits are discretionary with the prison authorities and are awarded in addition to the time credits for good behavior. NRS 209.443(3) allows the Board of Prison Commissioners to adopt regulations “allowing credits for offenders whose diligence in labor or study merits such credits...” Prison Procedure No. 344 was developed to permit inmates who are handicapped and disabled to earn work/study credits “to the same extent that such credits are available to all other inmates.” Handicapped and disabled inmates are defined as those who have “been certified to have a physical, mental or emotional disability by a rehabilitation counsel- or working in conjunction with other treatment team members (i.e., physician, psychologist, dentist, etc.)” Credits of up to ten days per month are allowed to a prisoner “based upon the amount of time he/she actually participates in an approved rehab program.” Thus, the process of granting additional work/study credits under Procedure No. 344 is not automatic and the Classification Committee, vocational rehabilitation counselor or other prison counselor has the discretion and the authority to determine the actual number of days (up to ten per month) each prisoner will be awarded.

In Shapley’s ease, no vocational rehabilitation program was available at Max, and Shapley did not ask to have his counselor certify his hobbycraft leatherwork as rehabilitative under the Procedure No. 344 program. Nor did he ask the Classification Committee to determine if he were eligible to earn time credits for a work/study program in lieu of a prison job assignment. In addition, on three occasions Shapley refused an offer to transfer to the Northern Nevada Correctional Center (NNCC), a medium security facility where vocational rehabilitative programs offering additional time credits were available. Testimony at the state habeas hearing revealed that “medically unassigned” is not necessarily synonomous with eligibility under Procedure No. 344. Prison authorities testified that had Shapley so requested, they would have employed a reasonable substitute to the vocational rehabilitation program to determine whether Shapley's hobbycraft activities qualified him for additional credits or whether he was capable of light work or study. Shapley did make one preliminary request but fails to state facts showing any followup on his part or that his physical disabilities were such that he should have been declared eligible for the alternative program. His bare conclusions that his particular hobbycraft qualified him for the alternative work/study time credits is insufficient. Further, Shapley fails to state facts showing that, had he been eligible for such a program, he would have performed so well that he would have received the maximum number of available credits per month. This Court will not presume the existence of facts not affirmatively presented to it.

For all of the above reasons, Shapley fails to sustain his burden of presenting some significant probative evidence tending to support his petition. See Compton v. Ide, 732 F.2d at 1434. Where he does not do so, summary judgment against him is appropriate. Fed.R.Civ.P. 56(c). In addition, his petition for habeas corpus on either of the grounds stated is without merit.

IT IS, THEREFORE, HEREBY ORDERED that the motion for summary judgment is GRANTED.

IT IS FURTHER ORDERED that the petition for habeas corpus is DENIED.