author: HENRY WOODS, District Judge.

text:
    LITTLE ROCK SCHOOL DISTRICT, Plaintiff, v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1; North Little Rock School District; Arkansas State Board of Education; Wayne Hartsfield; Walter Turnbow; Harry A. Haines; Jim Dupree; Dr. Harry P. McDonald; Robert L. Newton; Alice L. Preston; Jeff Starling; Earle Love; Bob Lyon; John Ward; Judy Wear; Leon Barnes; Marianna Gosser; Steve Morley; Mac Faulkner; Bob Moore; Don Hindman; Shirley Lowery; Sheryl Dunn; David Sain; Bob Stender; Grainger Williams; Richard A. Giddings; George A. McCrary; Buddy Raines; and Dale Ward, Defendants, Katherine Knight, Individually and as President of The Little Rock Classroom Teachers Association (LRCTA); LRCA; Ed Bullington, Individually and as President of The Pulaski Association of Classroom Teachers (PACT); PACT; John Harrison, Individually and as President of The North Little Rock Classroom Teachers Association (NLRCTA); NLRCTA; and Milton Jackson, Individually and as a Non-Certified Educational Support Employee of the Little Rock School District, Intervenors, Lorene Joshua, as next friend of minors Leslie Joshua, Stacy Joshua and Wayne Joshua; Rev. Robert Willingham; Sara Matthews as next friend of Khayyam Davis, Alexa Armstrong and Karlos Armstrong; Mrs. Alvin Hudson as next friend of Tatia Hudson; Mrs. Hilton Taylor as next friend of Parsha Taylor, Hilton Taylor, Jr. and Brian Taylor; Rev. John M. Miles as next friend of Janice Miles and Dereck Miles; Rev. Robert Willingham on behalf of and as President of the Little Rock Branch of the NAACP; Lorene Joshua on behalf of and as President of the North Little Rock Branch of NAACP, Intervenors.
    No. LR-C-82-866.
    United States District Court, E. D. Arkansas, W.D.
    Nov. 19, 1984.
    Philip E. Kaplan, John M. Bilheimer, Janet L. Pulliam, Little Rock, Ark., for plaintiff.
    Wright, Lindsey & Jennings, Little Rock, Ark., Friedman & Koven, Chicago, 111., for Pulaski County Special School Dist. No. 1, Faulkner, Moore, Hindman, Lowery, Dunn, Sain and Stender.
    C.R. McNair, III, Asst. Atty. Gen., State of Ark., Little Rock, Ark., for Ark. State Bd. of Educ., Hartsfield, Turnbow, Haines, Dupree, McDonald, Newton, Preston, Starling and Love.
    House, Wallace & Jewell, Little Rock, Ark., for North Little Rock School Dist., Lyon, Ward, Wear, Barnes, Gosser and Morley.
    Henry & Duckett, Little Rock, Ark., for Williams, Giddings, McCrary, Raines and Ward.
    John W. Walker, Little Rock, Ark., for intervenors Joshua, et al.
    Richard Roachell, Cearley, Mitchell '& Roaehell, Little Rock, Ark., for intervenors Knight, et al.
   ' MEMORANDUM OPINION

HENRY WOODS, District Judge.

I. INTRODUCTION

This Court issued its Memorandum Opinion on April 13, 1984, Little Rock School District v. Pulaski County Special School District, et al, 584 F.Supp. 328 (ED Ark.1984) finding, among other things, that the defendant districts had engaged in unconstitutional and racially discriminatory acts resulting in substantial interdistrict segregation. In its complaint the Little Rock School District (LRSD) prayed that this Court order consolidation of the school districts found in Pulaski County. Having determined that the substantial interdistrict violations could be rectified only by corresponding substantial interdistrict relief, the Court ordered the requested consolidation. The parties were informed that a hearing would be conducted on April 30, 1984 to consider the precise nature of the consolidation plan to be implemented.

At the April 30, 1984 hearing all parties were afforded an opportunity to present any testimony they desired concerning the remedial aspects of this case. The LRSD presented a plan that was authored primarily by Dr. Robert Dentler. Rather than offering alternative plans or constructive criticism of the LRSD plan, the defendant districts chose to attack the consolidation concept at every juncture and destroy the LRSD plan.- Much of their effort seemingly was aimed at relitigating the liability portion of this case rather than assisting the Court in the formulation of a workable solution to the interdistrict violations which were found to have occurred. While the Court recognized the need for all parties to fulfill their duties as adversaries in this litigation, it was hoped that, without prejudicing their right to appeal, the defendant, districts would take a more constructive approach to the remedial portion of this case. On numerous occasions subsequent to the April 30,1984 hearing, the defendant districts voiced the opinion that this court foreclosed them from putting forth alternative remedies. Due to the negative approach taken by the defendant districts at the April 30, 1984 hearing (in the face of this court’s need for their constructive participation) and the resulting cloud of confusion created by their complaints that they had been prevented from offering alternative remedies, the Court adhered to the suggestion of the Court of Appeals that the remedial hearings be reopened for the purposes of permitting these defendants to advance different remedies. A hearing to afford these defendants that opportunity, as well as to allow the various intervenors to participate in the remedial aspects of the case, was held beginning on July 30, 1984. See 738 F.2d 82.

Subsequent to the conclusion of this portion of the remedial hearings, Intervenors Knight, et al sought to substitute an exhibit reflecting the current Professional Negotiations Agreement (PNA) between the Little Rock Classroom Teachers Association and the LRSD, and the Pulaski County Special School District (PCSSD) sought permission to supplement the record to reflect offers to engage in some form of voluntary transfers of students among the districts.

PCSSD’s motion to supplement the record to include the aforementioned correspondence is granted. The attorneys representing PCSSD are directed to meet with this Court’s courtroom deputy clerk to facilitate the marking and listing of these exhibits for the record.

Intervenors Knight, et al’s motion to substitute a current PNA is granted, and her attorney should likewise meet with the Court’s courtroom deputy so as to ensure that this substitution of exhibits is accomplished.

The parties have submitted post-hearing briefs, and the Court has reviewed its April 13, 1984 Memorandum Opinion and the transcript of the remedial hearings. With this background and a view toward tailoring the remedy to fit the nature and extent of the constitutional violations, Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), the Court is prepared to render its opinion concerning the remedial aspects of this case.

II. ALTERNATIVE PLANS

A. The Pulaski County Special School District Plan

The PCSSD plan (PCSSD X 83) was generally described as voluntary with mandatory backup. Fritz Friendl, Administrator for Research, Planning and Quality Assurance for Pulaski County Special School District, coordinated efforts within the PCSSD staff and patrons in drafting the plan and presented the plan at the July 30, 1984 hearing. The plan retains the three autonomous school districts and relies on the development of specialty or magnet schools to attract students from one district to another. These magnet schools would be governed by a tri-district committee that would oversee the location of schools, student assignments, transportation, faculty and financing. The fatal flaw with this plan is its undue reliance on voluntary transfers. This Circuit held that “voluntary interdistrict transfers ... as a remedy for an intradistrict violation ... comply with constitutional standards,” Liddell v. State of Missouri, 731 F.2d 1294, 1305 (8th Cir.1984) (emphasis added) and in some cases these “freedom of choice” features may still have some vitality. Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1967). However, in the face of the dejure segregative acts found to have occurred and which are continuing, it would be naive to conclude that such a voluntary plan would succeed in this case. The PCSSD plan fails to adequately address the interdistrict segregative effects found to exist and cannot be approved. Little Rock School District v. Pulaski County Special School District, supra, findings of fact numbered 103-105.

B. The North Little Rock School District Plan

The North Little Rock School District (NLRSD) had consistently taken the position that they would not offer an alternative plan, notwithstanding their criticism that they had been denied such an opportunity. However, on the eve of the July 30, 1984 hearing, the NLRSD apparently reached the conclusion to support what has been referred to as the “Masem/Western Wedge Plan.” One of the proponents of this plan was Dr. Paul Masem, former Superintendent of the LRSD and an expert retained by the Joshua Intervenors. Dr. David Armor, one of the NLRSD’s expert witnesses, presented testimony in favor of such a plan.

The “Masem/Western Wedge Plan” calls for the NLRSD to retain its separate autonomous identity. The PCSSD north and west of Interstate 30 and south of. the Arkansas River would become part of the LRSD. The LRSD east and south of Interstate 30 would become part of the PCSSD. Desegregation under the NLRSD plan would depend largely upon voluntary “M to M” (majority to minority) transfers.

The NLRSD plan defines a desegregated school as one having between 20-50% black enrollment. The plan would allow a deviation of five percentage points on either side of these parameters. A racially isolated school under this plan is defined as one having 90% or more students of one race. An Ihterdistrict Policy Board would be established to administer and coordinate the various provisions of the plan. This Board would include representatives from each district, as well as the Joshua Intervenors.

The Court finds that this plan, like the PCSSD plan, places too much reliance upon the voluntary motivations of the county patrons. The magnet school concept and “M to M” transfer theories have a great deal of public appeal. However, the Court agrees with Dr. Charles Willie’s opinion that there are insufficient incentives offered by the NLRSD plan to expect the transfers under the “M to M” plan to be successful in desegregating the county schools. Any advances in the effort to desegregate these districts made by the suggested alterations in the various district boundary lines would be temporary. The approach suggested by the NLRSD plan fails to adequately address the interdistrict constitutional violations found by the Court and is the sort of half measure condemned by this Court in its earlier opinion.

C. The Intervenors Joshua Plan

The Intervenors Joshua chose not to advance' any particular plan, but rather through their experts Masem and Dr. John Finger submitted a Position Statement on Consolidation (IX 2). Masem did offer testimony with regard to three options available to the Court which would not necessitate consolidation of all three districts. These options were primarily concerned with alterations in the boundary lines of the existing districts. Option A basically would establish the boundary lines as set forth in the “Masem/Western Wedge” plan espoused by the NLRSD. Option B would have the LRSD bounded on the south and east by Interstate 30 to the county line and on the north by the Arkansas River and Interstate 40 from the current NLRSD boundary to the county line. The NLRSD would administer the remaining portion of the county north of the Arkansas River, and the PCSSD would administer the remaining portion of the county south of the Arkansas River. Under Option C, the LRSD would exist as set forth in Option B and the remaining PCSSD would be consolidated with the NLRSD. These options are not supported by sufficient data to convince the Court that any of them would adequately remedy the constitutional violations found by the Court. In fact, Masem opined that consolidation of all the school districts within Pulaski County would be the most effective plan from a desegregation point of view (T. 3651). Some of the concerns expressed by these Intervenors have been taken into consideration by this Court in the drafting of this opinion and will, of course, be kept in mind during the finalization of the attendance zones, transportation routes, etc.

D. The Little Rock School District Plan

The LRSD plan (PX 63), often referred to as the “Dentler Plan,”' resulted from Dr. Dentler’s consideration of various alternatives. His thorough consideration of alternative plans, as well as his extensive background of serving as a retained and court-appointed expert in school desegregation litigation, impressed upon this Court his dedication to an objective approach of tailoring the remedy to fit the violation at issue.

In what is referred to as the “St. Louis Case,” Dr. Dentler (serving as a court-appointed expert) assisted in the formulation of a consent decree to assist desegregative efforts in that case. It was highly doubtful at the time the LRSD plan was drafted that any sort of consent resolution was possible in this case. Furthermore, the Court accepts Dr. Dentler’s other reasons for rejecting this possibility. First, this case involves three districts whereas the St. Louis case involved twenty-five districts. There are also differences in the relative size of the student populations and differences in the degree of utilization of the magnet school concept in St. Louis visa-vis the three districts herein. Evidence that suburban school districts offered superior educational opportunities was not present in this case as it was in the St. Louis case, and there existed a greater number of surplus seats in the St. Louis case allowing greater planning flexibility. Finally, the St. Louis court did not need to address the specific constitutional violations found by the Court in this case. (T. 1766-70.) The voluntary measures incorporated to a large extent in the St. Louis area cannot be utilized here because of the absence of demographic and educational opportunity factors necessary to make a voluntary plan effective.

Although the magnet school-centered concept has many attractive features, it was rejected by Dr. Dentler. This Court accepts much of the criticism made by Dr. Dentler of this alternative. An interdistrict magnet concept cannot be the basis of any plan adopted by this Court to cure the constitutional violations. These districts are not adequately experienced in the magnet concept, and the Court finds that this approach is not economically feasible at this time. However, partial and increased future utilization of the magnet concept could enhance educational opportunities in this county, as well as assisting in making the court-imposed desegregative efforts more palatable.

The alternative of merely extending LRSD lines to be coterminous with the City of Little Rock boundaries would have at most minimal and temporary results and would not adequately address the constitutional violations found in this Court’s prior opinion. Likewise, allowing the NLRSD to remain as an “island” within a PCSSD and LRSD consolidated district ignores the need to address the NLRSD’s constitutional violations and would enhance the likelihood of creating further racial imbalances.

The Court also agrees with Dr. Dentler’s conclusion that an interdistrict voluntary exchange of students would place a disproportionate busing burden upon black students. Furthermore, as Dr. Charles Willie testified, desegregation plans based upon freedom of choice have proved to be total failures. Green v. County School Board of New Kent County, supra, 391 U.S. at 440, 88 S.Ct. at 1695.

Dr. Dentler also considered a consolidation plan espoused by Dr. Colton in the St. Louis case which allowed for a mandatory redistribution of resources, teachers, etc. with a voluntary approach to the redistribution of students. This approach does not adequately address the constitutional violations found by this Court, and the voluntary aspect of student transfers would be less than adequate in accomplishing the required desegregation.

Finally, Dr. Dentler concluded that the only legitimate prospect of remedying the unconstitutional interdistrict violations and achieving a unitary status of any or all of the party districts is through consolidation. This Court agrees that a countywide interdistrict remedy must be utilized to correct the countywide interdistrict violation found to exist and that this is the only manner of placing the victims of this discrimination in the position they would have occupied absent the discrimination. Consolidation will eradicate the ill effects of these prior segregative violations, and the Court believes there are a number of reasons to conclude that consolidation can be successful in this case. (See, e.g., Little Rock School District v. Pulaski County Special School District, supra, findings numbered 2, 7-22.) Failure to utilize a countywide consolidation plan would exacerbate white flight problems in the county’s residential growth.

The LRSD consolidation plan utilizes a geocoding process of arriving at student assignment areas and divides Pulaski County into six (6) subdistricts. Rather than calling for a specific racial- balance (the constitution mandates no “particular degree of racial balance,” Swann v. Charlotte Mecklenburg Board of Education, 402 U.S. 1, 24, 91 S.Ct. 1267, 1280, 28 L.Ed.2d 554 (1971)), this plan establishes a racial composition standard of (+) or (-) 25% of the racial makeup of the student population. The schools are to be equal in quality and have uniform grade structures (K-6); (7-9); (10-12) so as to enhance the ability of students to move about the district more freely. The parties must immediately begin compiling the data necessary to the development of the geocoded student assignment areas. The specific attendance zones of the various grades cannot be defined until the parties cooperate in the assimilation of this data. The final attendance zones must be submitted to the Court for its approval.

Transportation within the district, one of the more emotional issues of this consolidation, must be accomplished with a view toward minimizing the number of students that must be bussed. When the Court reviews the final attendance zones, the transportation routes will be strictly scrutinized to ensure that the final plans utilize the shortest possible routes to accomplish consolidation. Financially, the additional transportation burden should not impact too greatly on the overall budget requirements of the consolidated district.

While the magnet school concept is not acceptable to the Court as an overall remedy, Dr. Dentler’s incorporation of magnet schools into the LRSD consolidation plan is sound. It encourages voluntary compliance with the goals of the consolidation plan in exchange for enhanced educational opportunities. Locating these magnet schools in areas populated primarily by blacks should make the transfer of white students from other parts of the district more attractive. The creation of a technical vocational magnet at Metropolitan High is a logical starting point for the use of magnet schools within the consolidated district (Little Rock School District v. Pulaski County Special School District, supra at 340, finding of fact number 14). The development of additional magnets can occur in the future where they complement the desegregation efforts of the consolidated district.

For desegregation to be successful under the LRSD consolidation plan, the administration must likewise reflect a desegregated staff at all levels and in all units. This must be one of the initial goals of the superintendent and board of the consolidated district. An interim board of directors will be selected by this Court, and it will be their duty to immediately retain the services of a qualified superintendent. These board members and the superintendent must be dedicated to the effective implementation of the LRSD consolidation plan. The board of directors will be responsible for submitting interim reports to the Court reflecting the efforts to implement the LRSD consolidation plan. The frequency of these reports will be no less than annual, but will be established in the future subsequent to appointment of an interim board and selection of a superintendent by that board. The Court sees no necessity at this time for a separate monitoring committee as suggested by Dr. Dentler.

The boundary lines within the district for the election of the members of the board of directors were significantly altered at the hearings (PX 74, 74A). Mr. Jim Lynch, Director of the Department of Management and Information Services of the University of Arkansas at Little Rock, compiled much of the data and developed this facet of the consolidation plan with the assistance of Mr. Howard Deimer, elections coordinator for the Pulaski County Election Commission. The altered electoral plan calls for a nine-member school board elected from nine single member districts. This method of selection increases the likelihood of minority representation on the board. The date of an election of persons to replace the interim court-appointed board will be established in the future.

Dr. Dentler’s analysis of the fiscal aspects involved in implementing the Little Rock School District consolidation plan reflects that implementation can occur without significantly increasing the total budgets of the affected districts. Only with more refined study of the costs associated with implementing the LRSD consolidation plan by the new superintendent and board of the consolidated district can a determination be made as to the millage rate which must be uniformly applied within the consolidated district. See, e.g. Liddell v. State of Missouri, supra at 1320.

During the course of his testimony, Mr. Gene Reville, Superintendent of the Buffalo, New York School District and the court-appointed expert, stated it was his opinion that the success of any consolidation plan depended primarily upon its acceptance by the parents of the consolidated district’s school children. The Court was impressed with his analysis of the Dentler plan. His testimony provided the sort of practical insight that only an experienced, professional school administrator could offer. While he approved Dr. Dentler’s plan as an effective desegregation tool, the concerns he expressed about the refusal of the defendant districts to participate in the formulation of a consolidated plan should not be overlooked. These school districts have a continuing duty to obey and implement the orders of this Court. In the discharge of their court responsibilities, the districts owe their patrons an even higher duty. They must, during the planning and implementation of any consolidated plan, consult with their patrons and seek the adoption or modification by this Court of a plan which remedies the interdistrict violations found by the Court but does not ignore the educational and safety needs of the county children. With this in mind the three districts are directed to hold no less than three public meetings within their district for the purposes of explaining the LRSD consolidation plan to their patrons and allowing constructive criticism. These meetings must not be a forum for the condemnation of the consolidation concept. Rather they must solicit comments which will assist in the finalization of attendance zones and transportation routes. Each district’s superintendent must be present and be familiar with the consolidation plan so as to be able to explain the plan to the district patrons. A transcript of these public meetings should be submitted to this Court at the cost of each district, and these meetings must be held no later than March 29, 1985.

E. Input of Knight Intervenors

The primary focus of the post-hearing submission of the Knight Intervenors concerned securing and protecting the contractual rights of the teachers employed by the three districts. Their interests will be protected by the Court. However, it would be premature at this time to impose any particular contract on the consolidated district. The Court will involve itself in this potential contractual dispute only when it becomes apparent that the interim board is unable to come to an agreement with its teachers. The Court realizes the importance of teacher support and participation in the successful implementation of any remedy and will address any financial and assignment disputes between the new board and the teachers when and if they arise. Of course, the parties should not construe this portion of the opinion as an expression of the Court’s intention to become an arbitrator of all disputes arising between the district and its teachers.

III. THE STATE DEFENDANTS

The LRSD requests at this time that the Court enter findings concerning the basis for retaining the state defendants in this case for remedial purposes. In its earlier opinion the Court advised these defendants that they would remain in the case for remedial purposes. LRSD v. Pulaski County Special School District, supra at 353.

The State Board of Education has, by statute, general supervision over all public schools in the State of Arkansas. Ark.Stat.Ann. § 80-113. In addition to that general responsibility, the State Board and the Department of Education have numerous specific duties, including the approval of plans and expenditures of public school funds for new school buildings (Ark.Stat.Ann. §§ 80-113, 80-3506; T. 775); review, approval and disapproval of local school district budgets (Ark.Stat.Ann. §§ 80-113, 80-1305; T. 773); administration of all federal funds for education (Ark.Stat.Ann. §§ 80-123, 80-140); disbursement of State Transportation Aid Funds to local school districts (Ark.Stat.Ann. §§ 80-735, 80-736); assisting school districts in the operation of their transportation system (T. 774); lending funds from the State Revolving Loan Fund to local school districts (Ark.Stat.Ann. § 80-942); approval or disapproval of bonds issued by local school districts (Ark.Stat.Ann. § 80-1105; T. 775); advising school districts regarding the issuance of bonds (T. 777); and regulation of the operation of school buses (Ark.Stat.Ann. §§ 80-1809, 80-1809.2).

The State Board of Education has broad statutory authority to supervise the public schools of the state generally, and to take what action it may deem necessary to “promote the physical welfare of school children and promote the organization and increase the efficiency of the public schools of the State.” Ark.Stat.Ann. § 80-113.

The State Board of Education has the authority to promulgate regulations concerning the earmarking and use of funds used by local school districts (Ark.Stat.Ann. § 80-1305), the use of federal education funds by local school districts (Ark.Stat.Ann. § 80-142) for the administration of State Transportation Aid Funds by local school districts (Ark.Stat.Ann. § 80-735), and for the operation of school buses by local districts (Ark.Stat.Ann. §§ 80-1809, 80-1810).

The State Board of Education may lend funds from the State Revolving Loan Fund for the purchase of school buses and other equipment, for making major repairs and constructing additions to school buildings, for the purchase of sites for new school buildings, for the construction of new school buildings, and for the purchase of surplus buildings. Ark.Stat.Ann. § 80-942.

The State Board of Education has never acknowledged its affirmative duty to assist the local school districts in their desegregation efforts. In the performance of its statutory duties, as set forth above, the State Board has never promulgated any rules or guidelines which would encourage the local districts to eliminate discrimination in their school systems. These omissions have had their greatest impact on the issues of school construction, student transportation, and financial assistance to local districts. Had the State Board taken affirmative steps in providing incentives to local school districts to comply with desegregation requirements, desegregation within the school districts in Pulaski County would have been greatly enhanced. These deficiencies in the State Board’s discharge of its affirmative duty to encourage desegregation in the local school districts had an interdistrict effect upon the Little Rock, Pulaski County, and North Little Rock school districts. Other branches of the State, as set forth in the court’s earlier opinion, Little Rock School District v. Pulaski County Special School District, supra at 328-335, share responsibility with the State Board for these constitutional violations, but the State Board must be the remedial vehicle for their violations as well. The State Board therefore has remedial responsibilities with respect to this case. Adams v. United States, 620 F.2d 1277 (8th Cir.1980 (en banc)), cert. denied, 449 U.S. 826, 101 S.Ct. 88, 66 L.Ed.2d 29; Liddell v. State of Missouri, 731 F.2d 1294 (8th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 82, 83 L.Ed.2d 30. The precise nature of these financial and oversight responsibilities must await further refinement of the consolidation plan and development of a budget for such consolidated district.

IV. SUMMARY

The three districts in this case have an affirmative obligation to eliminate segregation “root and branch.” Swann v. Charlotte-Mecklenburg Board of Education, supra. Having failed in the discharge of this responsibility, it is the duty of this Court to fashion a remedy of a nature and scope sufficient to meet the constitutional violations found to have occurred. Milliken v. Bradley, supra; Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976). This Court cannot shrink from this duty and in approving a remedy, the Court must restore “the victims of the discrimination as nearly as possible to the position they would have occupied absent that discrimination.” Liddell v. State of Missouri, supra at 1306.

The Court therefore approves the LRSD consolidation plan and directs that the parties undertake the implementation of said plan.


source: Caselaw Access Project

author: ELFVIN, District Judge.

license: Public Domain

text:
    The UNITED STATES of America v. Jerry L. KING.
    No. CR-84-69E.
    United States District Court, W.D. New York.
    Nov. 19, 1984.

      Rodney O. Personius, Asst. U.S. Atty., Buffalo, N.Y., for plaintiff.
    Joel L. Daniels, Buffalo, N.Y., for defendant.
   ORDER

ELFVIN, District Judge.

Following trial on a four-count indictment, the above-named individual (“the defendant”) was found guilty October 9, 1984 of having conspired to deal in and utter counterfeit money (Count I) in violation of 18 U.S.C. §§ 472 and 473 and of having knowingly engaged “in misleading conduct toward another person with intent to hinder and prevent the communication to a law enforcement officer” of information relating to illegal activity (Count IV) in violation of 18 U.S.C. § 1512. The defendant was acquitted of Counts II and III which charged him with having knowingly transferred and delivered counterfeit money in violation of 18 U.S.C. § 473.

The defendant having moved against the verdicts, this Court heard oral argument on the matter October 15, 1984; defendant’s motion as to Count I was denied , and defendant’s motion as to Count IV was taken under advisement.

The statute upon which Count IV is premised, 18 U.S.C. § 1512, is part of the “Victim and Witness Protection Act of 1982.” As is set forth in the Congressional findings and declaration of purposes cited in the notes to the Act, the legislation is intended to “enhance and protect the necessary role of crime victims and witnesses in the criminal justice process,” and “to ensure that the Federal Government does all that is possible * * * to assist victims and witnesses of crime without infringing on the constitutional rights of the defendant.” Although section 1512 is somewhat generically captioned “Tampering with a witness, victim, or an informant,” it is clear from the plain language of the statute that the section is essentially aimed at protecting witnesses and victims from intimidation or harassment. See, e.g., United States v. Hernandez, 730 F.2d 895, 898-899 (2d Cir.1984). In the present case the government’s theory of guilt under Count IV is based on conversations between the defendant and one Frank S. Orgovan, Jr. which took place between July 26th and August 4th of 1983. Orgovan had been previously apprehended by government agents for passing counterfeit money. Unbeknownst to King, Orgovan subsequently had related his and King’s guilty conduct and had agreed to be “wired” in order to assist the government’s investigation into King’s involvement in the counterfeiting scheme. Tapes of two conversations between King and Orgovan, August 2, 1983 (Government’s Exhibit 7) and August 4, 1983 (Government’s Exhibit 10), were a substantial part of the evidence on the trial. In both conversations King discusses, in a rambling fashion, how Orgovan should respond to the situation King believes them to be in — to wit, threatened with incarceration. In essence, King tells Orgovan that they need to stick together and that the government will put pressure on them in various ways to get them to turn against each other. King repeatedly suggests that Orgovan refuse to cooperate with the authorities, that he should relate an exculpatory story and that he refer them to his (Orgovan’s) attorney when pressed.

“They’re buffaloing you. See, Frank what they’re still trying to do is connect you, me and Dennis [King’s brother who was in prison on counterfeiting charges], get you to say [the counterfeit money] came from me or somethin’ like that and that’s all they’re trying to do.” Government’s Exhibit 10 at 2.

King also promised several times that he would help Orgovan financially both with regard to legal fees and with regard to Orgovan’s wife and children in the event Orgovan were to be sentenced to prison. See, e.g., Government’s Exhibit 7 at 5, 9 and 17. At no time in either conversation is there any overt intimidation of Orgovan by King. Rather, King speaks more in the context of two friends sticking together when one of them is in trouble:

“Believe me, this [the counterfeiting] is big * * * syndicate stuff. We don’t wanta get * * * involved Frank. The best thing to do is take your * * * medicine and keep your mouth shut, because [the syndicate] will come in and kill you, your family, me, and my family * * Id. at 11.

Section 1512 provides in relevant part:

“Whoever knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to — * * * hinder, delay or prevent the communication to a law enforcement officer * * * of the United States of information relating to the commission or possible commission of a Federal offense * * * ” shall be guilty of an offense against the United States.

The government has chosen in this case to proceed under the “misleading conduct” alternative of the statute. The phrase is defined in 18 U.S.C. § 1515(3) as one of five specific categories of conduct. Clearly the vague and generalized discussions between King and Orgovan, who was himself involved in the counterfeiting scheme, cannot be said to have been actually misleading as to Orgovan; King nevertheless would have violated the statute if the true situation had been as King thought it to be — to wit, that Orgovan had-not as of that point in time made any inculpatory revelation to the authorities. So gauged, did King (A) knowingly make a false statement to Orgovan or (B) omit information from his statement to Orgovan or conceal a material fact from Orgovan so that the statement was misleading or a false impression was created or (C) submit to Orgovan or invite Orgovan’s reliance on a false, forged or altered writing or recording or (D) submit to Orgovan or invite Orgovan’s reliance on a materially misleading object? Clearly no evidence was adduced from which the jury could have found present any of such manifestations of “misleading conduct” “toward another person.” Assuredly the government and government agents are not the “another person;” if either were, King might have been shown to have, by his endeavors to persuade Orgovan to relate a false story to the government and its agents, “knowingly used a trick, scheme, or device with intent to mislead” it or them. Such construction is, however, foreclosed by a reading of 18 U.S.C. § 1512(a) in its entirety. Once it is construed, as it must be, that Orgovan was the “another person” contemplated by section 1512 it becomes crystal clear that there was not any evidence adduced in this case upon which a jury could rationally find that King had employed a trick (which term can not reasonably be held as embracing slick and persistent salesmanship) or a scheme or a device to mislead Orgovan. King, simply and flat-out, tried to persuade Orgovan to lie.

The only misleading conduct by King that is apparent from the record is with respect to government authorities. What the government has charged with respect to Count IV is more appropriately labelled obstruction of justice. King was shown, not so much as having misled or tried to mislead Orgovan as misleading or attempting to mislead the government by suggesting to Orgovan ways in which he might forestall or substantially impede the government investigation of King, but not by “misleading conduct.” As is made clear by the careful statutory analysis set forth in United States v. Beatty, 587 F.Supp. 1325 (E.D.N.Y.1984), such a charge may be appropriate under 18 U.S.C. § 1503, but is not under 18 U.S.C. § 1512. In Beatty the Court noted comments by Senator Heinz on 18 U.S.C. § 1512(a)(3) as initially .passed by the Senate (128 Cong.Rec.S. 11439 (daily ed. Sept. 14, 1982)) to the effect that:

“Subsection (3) of section 1512(a) of the Senate passed bill, general obstruction of justice residual clause of the intimidation section, was taken out of the bill as beyond the legitimate scope of this witness protection measure. It also is probably duplicative of abstraction [sic] of justice statutes already in the books.” 128 Cong.Rec. S. 13063 (daily ed. Oct. 1, 1982); see Beatty, supra at 1332-1333.

The Court, in Beatty, concludes:

“It is clear that Congress intended to broaden the protection of witnesses by enacting § 1512. That is not to say, however, that it intended to diminish the scope of § 1503 insofar as it aimed at preventing obstruction of justice and the statement of Senator Heinz makes that manifest. It is interesting to note in this regard that § 1512 contains no reference to impeding or obstructing the due administration of justice.” Beatty, supra at 1333.

In Beatty, as in the present case, there was no showing that a witness was “forced, threatened or harassed to do or refrain from doing anything.” Ibid. Accordingly, that Court denied defendant’s motion to dismiss a charge brought under 18 U.S.C. § 1503. In the present case, by the same reasoning used in Beatty and because the different statute is involved, so too must the result be different. Accordingly, it is hereby ORDERED that defendant’s motion against the verdict with respect to Count IV is granted and that the jury’s verdict as to Count IV is vacated and that a verdict of not guilty as to Count IV shall be recorded and entered.

      . King does not actually acknowledge involvement in the counterfeiting scheme and makes several vaguely exculpatory statements. For example: " * * * I will never admit to doing anything because as far as I’m concern [sic] I haven’t done any * * * thing wrong." Government’s Exhibit 7 at 2.


author: CEREZO, District Judge.

text:
    Maria Isabel GONZÁLEZ, as mother with patria potestas and as Judicial Administrator of the assets of her minor son, Pedro Javier Muñoz Gonzalez, Plaintiffs, v. Demetria MUÑOZ and The First National State Bank-Edison, New Jersey, Defendants.
    No. Civ. 83-1304CC.
    United States District Court, D. Puerto Rico.
    Nov. 20, 1984.

      Heriberto Febus-Bernardini, Ponce, P.R., for plaintiffs.
    Jeffrey D. Streisfeld, Forest Hills, N.Y., for defendant Muñoz.
    Fernando Pérez-Colón, San Juan, P.R., for First Nat. State Bank.
   OPINION AND ORDER

CEREZO, District Judge.

Maria Isabel González, mother and judicial administrator of minor Pedro Javier Muñoz González, filed this suit against Demetria Muñoz and the First National State Bank-Edison, New Jersey, to recover certain funds which allegedly belong to him. Federal jurisdiction is said to be premised on diversity of citizenship between plaintiff and defendant Muñoz and on the banking-transaction jurisdictional grant of 12 U.S.C. Section 632. Presently before us is a Motion to Dismiss for Lack of In Personam Jurisdiction filed by codefendant First National State-Bank Edison, New Jersey (First National) on September 30, 1983, opposed by plaintiffs, and a Motion for Partial Summary Judgment against defendant Demetria Muñoz filed by plaintiffs on November 17, 1983.

The facts portrayed by the record show that Don Benito Muñoz, the minor’s deceased father, left a certain amount of cash which was given to his sister Demetria Muñoz to hold for the benefit of his son. Demetria purchased two certificates of deposit in New Jersey from First National for a total of $33,000. The minor’s mother subsequently filed an ex-parte proceeding in the Superior Court of Puerto Rico, Ponce Part, for the judicial administration of her son’s assets. That court ordered Demetria Muñoz and First National to transfer the funds held through the certificates to the Clerk of the Ponce Court. It is alleged that both defendants were duly notified of this order yet failed to comply. Plaintiffs seek judgment ordering these two defendants to deposit the amount of the certificates plus interests, costs, disbursements and attorney’s fees for $4,500 with the Clerk of the Ponce Court and that $15,000 in damages be awarded.

Demetria Muñoz has made several formal and informal appearances through out-of-state counsel Jeffrey Streisfeld in which she indicates that she was entrusted with a certain amount of money by her dying brother Benito to keep for the minor’s benefit. She has alleged that Benito made her promise not to let the minor’s mother get her hands on the money; that the only additional amounts that she received were used to pay her brother’s funeral expenses and that a remaining $1,000 is deposited in a savings account. She expressed her willingness to deliver the certificates of deposit in exchange for dismissal of this action without costs but plaintiffs’ attorney has refused that offer. She opposed plaintiffs’ unsworn request for summary judgment with a motion resembling an answer to a complaint entitled “Affirmation in Opposition” in which the sufficiency of plaintiffs’ pleadings is challenged and most of the allegations of the complaint are denied. On January 30,1984 the court afforded her out-of-state counsel ten days to request pro-hac-vice admission to practice before this court pursuant to Local Rule 4 for this District, a copy of which was sent to him together with the order. Mr. Streisfeld sent a reply letter stating that compliance with Local Rule 4 which requires retaining local counsel would be too costly and requested that she be exempted from this requirement. This was denied but Demetria Muñoz was allowed to appear pro se. She was advised that all future communications with the court should be made through motions filed with the Clerk. She did not appear at a hearing for oral argument on plaintiffs’ motion for summary judgment. The court denied a request made by plaintiffs that the opposition to summary judgment signed by attorney Streisfeld be accepted as Demetria Muñoz’ pro-se appearance and stated that it would review the record to see if she should be allowed another extension of time to oppose the pending request for summary judgment. Defendant Muñoz has not made any further appearances and the court did not grant her any further extension.

As far as First National is concerned it argues that it has not performed a single act within the jurisdiction of Puerto Rico, does not own real property or conduct business here and that the issuance of an order by the Commonwealth Court regarding the minor’s funds does not allow for the exercise of personal jurisdiction over it. When determining whether a court can exert personal jurisdiction over a party one must consider the constitutional limits of such power which, as recently discussed in Helicópteros Nacionales de Colombia, S.A. v. Hall, — U.S.-, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), can be summarized as follows: “[d]ue process requirements are satisfied when in person-am jurisdiction is asserted over a nonresident corporate defendant that has “ ‘certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Id. 104 S.Ct. at 1872. The conditions under which Puerto Rico has permitted its courts to exercise their jurisdiction over nonresidents are spelled out in Rule 4.7 of the Puerto Rico Rules of Civil Procedure and the applicable caselaw. See e.g.: A.H. Thomas Co. v. Superior Court, 98 DPR 883, 98 PRR 864 (1970). The rule indicates that Puerto Rico courts may exercise jurisdiction over a nonresident if it either conducted business transactions in Puerto Rico personally or through an agent or participated in the commission of tortious acts within Puerto Rico personally or through an agent. The conduct or business transaction occurring in Puerto Rico must, however, be a purposeful act performed by the defendant upon whom personal jurisdiction is trying to be exercised. As the Supreme Court of Puerto Rico said in A.H. Thomas:

‘The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State ... it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’

A.H. Thomas, PRR at 869 citing Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).

A review of plaintiffs’ jurisdictional pleadings reveals a manifest lack of personal jurisdiction over defendant First National. There are no allegations in this complaint that First National engaged in some sort of conspiracy with Demetria Muñoz to commit tortious acts within this forum. The notion that personal property that may be destined to a minor carries with it the jurisdiction of the courts of the minor’s residence wherever the property is transferred finds no authority in Puerto Rico’s long arm statute, and plaintiffs have cited no legal authority in its support. The constitutionality of an exercise of personal jurisdiction on such a weak basis, especially in a case where the item of personal property is cash, cannot be seriously argued. The only other contacts asserted to establish jurisdiction over First National are letters that plaintiffs’ attorney sent to the bank informing it of the judicial administration proceedings and the court order requiring it to file the certificates of deposit with the Ponce Superior Court. However, these acts do not constitute affirmative acts by defendant First National to “purposefully avail” itself of the benefits of this forum but are mere unilateral acts performed by other parties. See: A.H. Thomas. In fact, none of the acts alleged to have been committed by First National even occurred in Puerto Rico. To construe as sufficient to exert jurisdiction any act performed in Puerto Rico which may be directed at a nonresident even though the nonresident performed no acts and had no contacts within Puerto Rico is an upside-down reading of a rule which clearly speaks of acts performed by the party over whom jurisdiction is being sought and not of acts performed by the party seeking to assert jurisdiction. Id. This approach to the minimum contacts theory contravenes the constitutional mandate that long arm statutes be reconciled with due process notions of fair play and substantial justice for compliance with the requirement of defendant’s contacts with the forum State is determined by plaintiff’s unilateral activities. The Court has said that “unilateral activity of another party or of a third person is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum state to justify an assertion of jurisdiction.” Helicópteros Nacionales de Colombia, S.A. v. Hall, 104 S.Ct. at 1873, citing Kulko v. California Superior Court, 436 U.S. 84, 93, 98 S.Ct. 1690, 1697, 56 L.Ed.2d 132 (1978) and Hanson v. Deckla, 357 U.S., at 253, 78 S.Ct. at 1239. Demetria’s banking transaction upon purchasing two certificates of deposit in New Jersey, the letters sent by plaintiffs’ attorney from Puerto Rico to First National and the court order obtained by plaintiffs in a Commonwealth Court in a case in which First National is not a party do not establish any basis whatsoever for asserting jurisdiction over First National. This defendant has no contacts with this forum which would justify such an assertion. Neither does this action “arise out of” or “relate to” any activities of defendant in this forum. It is clear from the record that plaintiffs never had a.sufficient basis for asserting jurisdiction. They have obstinately insisted in pursuing a deficient and frivolous jurisdictional analysis which is contrary to legal principle, long established in caselaw.

Accordingly plaintiffs are ORDERED to deposit the sum of $1,000 for attorney’s fees ten (10) days after notice of this order. The complaint against codefendant First National is hereby DISMISSED for lack of in personam jurisdiction. Partial Judgment shall be entered separately.

SO ORDERED.

      . In its jurisdictional pleadings plaintiffs refer to 28 U.S.C. § 1441, the removal statute; however, this case did not come to us as a removal but as a complaint originally filed in this court.

      . The pertinent part of section 632 indicates that:
      All suits of a civil nature at common law or in equity to which any corporation organized under the laws of the United States shall be a party, arising out of transactions involving international or foreign banking, or banking in a dependency or insular possession of the United States ... shall be deemed to arise under the laws of the United States, and the district courts of the United States shall have original jurisdiction of all such suits ____

      . We assume these facts merely for purposes of the motions before us.

      . The certificates are payable to the minor or to his aunt. It has been alleged that these certificates do not cover the entire sum entrusted to Demetria Muñoz and that their whereabouts are unknown. Plaintiffs claim that an additional sum of approximately $12,000 was also given to codefendant Muñoz.

      . The rule also allows jurisdiction to be exercised over parties who own real property in Puerto Rico or parties that are involved in certain types of accidents not applicable to our situation.

      . The finding of lack of personal jurisdiction over this defendant does not affect the minor’s right to obtain said funds through the corresponding procedure in the court with personal jurisdiction over the bank. We are not aware of any impediments to validate the Superior Court of Ponce’s order in New' Jersey through the appropriate procedure in that State. However, the present complaint is not directed at this solution to the problem and we trust plaintiffs’ counsel is aware of the appropriate procedure to obtain said funds through the New Jersey courts and has not used the present action for such purposes for it would be wasting much of his clients’ valuable time as well as incurring in additional and unnecessary legal fees.


author: KANE, District Judge.

text:
    Patricia MABRY, Plaintiff, v. The STATE BOARD FOR COMMUNITY COLLEGES AND OCCUPATIONAL EDUCATION, and Gordon Dickinson, Ross Forney, Angelo Daurio, Dr. Elinor Greenberg, Thomas Grimshaw, Raymond Guerrie, Isaiah Kelley, Jr., Fred Valdez, Sr., Raymond Wilder, all members of the State Board for Community Colleges and Occupational Education, and Thomas Sullivan, President of Trinidad State Junior College, Defendants.
    Civ. A. No. 83-K-852.
    United States District Court, D. Colorado.
    Nov. 20, 1984.

      Larry F. Hobbs, and Vonda G. Hall, Hobbs/Bethke and Associates, Denver, Colo., for plaintiff.
    Daniel R. Satriana, Jr., Bruce M. Pech, Asst. Atty. Gen., Human Resources Section, Denver, Colo., for defendants.
   ORDER

KANE, District Judge.

This civil rights action was brought alleging violation of 42 U.S.C. § 2000e-2(a), 20 U.S.C. § 1681, and 42 U.S.C. § 1983. Plaintiff complains that she was terminated from her employment as a physical education professor at Trinidad State Junior College based on her sex and/or her parental or marital status. She seeks damages, reinstatement with back pay and benefits, attorney fees and costs pursuant to 42 U.S.C. §§ 1988 and 2000e-5(k). This court has jurisdiction under 28 U.S.C. § 1331 and 1343, and 42 U.S.C. § 2000e-5(f)(3).

Mabry was employed at Trinidad in the physical education department from the academic years 1974-75 through 1981-82. She also taught courses in speech and health.

In December 1981 plaintiff received notice from the college that she was being terminated due to a reduction in force requirement. A lack of work and program changes were the reasons given for Mabry’s termination. Mabry complains that during her tenure at the college, she was subjected to sexual-based discrimination because of the nature and quality of the facilities. She also contends that one of the reasons for her termination was that the two remaining physical education instructors were males.

Mabry has pursued administrative remedies and has received a notice of right to sue from the Equal Employment Opportunity Commission on February 26, 1983. Defendants assert that Mabry was terminated but on justifiable grounds.

The initial determination to terminate Mabry was made by Thomas W. Sullivan, the college president. After receiving notice of her termination, Mabry requested a hearing. Evidently, a hearing was conducted by the Campus Hearing Committee. Its finding was adverse to Sullivan’s position. Sullivan then requested a hearing before a hearing officer. That hearing was conducted April 7 to 9, 1982.

The hearing officer upheld Sullivan’s decision to terminate Mabry. The State Board for Community Colleges and Occupational Education, defendants herein, reviewed the hearing officer’s findings and conclusions and heard oral argument from counsel. The board issued an order August 11, 1982 affirming the hearing officer. Sullivan is also a named defendant.

In this partial summary judgment motion, defendants argue two points: (1) that the board members were acting solely within judicial capacity with respect to their actions concerning Mabry’s termination; and (2) Mabry’s claims under Title IX and § 1983 should be dismissed because the subjects that Mabry taught were not federally funded, and therefore are not actionable.'

Rule 56 F.R.Civ.P. permits the entry of summary judgment on a claim when there is no genuine issue of material fact outstanding. Adickes v. S.H. Kress Co., 398 U.S. 144, 157-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970); Luckett v. Bethlehem Steel Corporation, 618 F.2d 1373, 1377, 1383 (10th Cir.1980). As a matter of law, the movant must show entitlement to summary disposition beyond all reasonable doubt. Norton v. Liddel, 620 F.2d 1375, 1381 (10th Cir.1980).

In order to determine the propriety of summary judgment I must construe all pleadings, affidavits, and depositions liberally in favor of the party against whom the motion is made. Id. Summary judgment is not a substitute trial by affidavit. Ando v. Great Western Sugar Company, 475 F.2d 531, 535 (10th Cir.1973). No margin exists for disposition of factual issues, nor does summary judgment serve as a substitute for trial when there are disputed facts, Commercial Iron & Metal Company v. Bache & Company, Inc., 478 F.2d 39, 41 (10th Cir.1973). Where different inferences can be drawn from conflicting affidavits, depositions and pleadings, summary judgment should not be granted. United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Romero v. Union Pacific Railroad, 615 F.2d 1303, 1309 (10th Cir.1980).

IMMUNITY FROM SUIT

Defendants argue that they were acting in a judicial capacity pursuant to their statutory duties and are thus immune from suit. Mabry argues that the actions defendants took with respect to the termination of Mabry were not judicial; that only the hearing officer’s actions could be considered as judicial in nature.

The facts underlying the immunity issue are not disputed. I must determine, as a matter of law, whether defendants were shielded by immunity and, if so, was that privilege vitiated.

There is ample authority in this Circuit to guide me in the resolution of this question of law. In Gilbert v. School District No. 50 Adams County, 485 F.Supp. 505, 508-9 (Colo.1980), a teacher brought a civil rights action alleging deprivation of due process by school officials and the district. I held in Gilbert, supra, that the school board may be liable in its official capacity; and that the individual members could be liable if they knew or reasonably should have known their actions would be violative of the constitutional rights of the person affected, or if they acted with malicious intention, or impermissible motivation or with such disregard of constitutional rights that their actions were not in good faith. This qualified immunity doctrine was articulated in Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975), and has been applied in this circuit. For example, in Prebble v. Brodrick, 535 F.2d 605, 612 (10th Cir.1976), qualified immunity was extended to school officials making decisions on nonrenewal of employment or discharge of instructors. Similarly, in Bertot v. School District No. 1 Albany, Wyoming, 522 F.2d 1171, 1185 (10th Cir.1975), qualified immunity under Wood applied. I find and conclude that the Wood test for qualified immunity applies to the facts in this case since defendants’ actions were quasi-judicial. In Van Pelt v. State Board of Community Colleges, 195 Colo. 316, 320 (Colo.1978), the Colorado Supreme Court held that where the action taken by school officials (State Board) involves the exercise of discretion and requires notice and hearing, as in this instance, the action is characterized as quasi-judicial. Id. All that remains for me to consider is whether defendants’ protection under the Wood qualified immunity doctrine was vitiated; that essentially, whether the board knew or reasonably should have known that their actions with regard to Mabry’s termination would be violative of her constitutional rights, or whether they acted with improper motivation or with malice.

The record in this case is neither complicated nor voluminous. There is an orderly presentation of the facts and . issues. Each of the defendant board members has submitted an affidavit stating that he or she did not have any involvement in the preliminary decision to terminate Mabry; that it was their function as board members to hear Mabry’s appeal from the hearing officer’s initial decision upholding Mabry’s termination; that the board members concurred with the hearing officer’s decision based upon a review of briefs that were submitted by both sides and formal oral argument. Thus, there is. no evidence that the board acted improperly with respect to Mabry’s termination. Therefore, the qualified immunity of defendants was not vitiated. Their actions were entirely consistent with their statutory duties as members of the board. Summary judgment is granted in favor of defendants on this issue.

FEDERAL FINANCIAL ASSISTANCE

Plaintiff alleges that defendants have violated the Education Amendments of 1972 and its implementing regulations by terminating Mabry on the basis of her parental or marital status and/or her sex. See Education Amendments of 1972, 86 Stat. 373, as amended, 88 Stat. 1862 (1974), 90 Stat. 2234 (1976), 20 U.S.C. § 1681 et seq. (Title IX). The Department of Education promulgated regulations which prohibit federally funded education programs from discriminating on the basis of gender with respect to employment. Any education program or activity that receives Federal financial assistance or benefits from the assistance is subject to the Department’s regulations.

Defendants argue that Mabry’s claim of sex discrimination under Title IX is not actionable under the facts of this case because the instructional program areas in which Mabry taught (physical education, speech, and health) were not education programs or activities that received federal financial assistance within the meaning of Title IX (20 U.S.C. §§ 1681 and 1682). Title 20 U.S.C. § 1681 in relevant part states the following:

§ 1681, Prohibition against sex discrimination — Exceptions
(a) No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance____

The U.S. Supreme Court has declared that the anti-discrimination provision of § 1681 is program-specific in character; that coverage of Title IX is limited to a particular entity and program receiving federal financial assistance. See North Haven Board of Education v. Bell, 456 U.S. 512, 535-39, 102 S.Ct. 1912, 1926-27, 72 L.Ed.2d 299, 317-19 (1982). In North Haven, supra, petitioners disputed the department’s authority to regulate any employment practices. The Supreme Court held that employment practices could be regulated if the employees directly participated in federal programs or directly benefited from federal grants, loans, or contracts. The Court, however, declined to define “program” within the meaning of Title IX.

Mabry’s argument rests on the inference that, because physical education classes and other classes she taught were part of the core requirements for all persons receiving degrees in the programs that were benefited by federal financial assistance, coverage under Title IX should be extended to this case.

In Grove City v. Bell, — U.S.-, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), it was held that Title IX coverage was not foreclosed simply because federal funds are granted to students rather than to the college’s. education programs; but the Court also held that institution wide coverage of Title IX was not triggered because some students at the college received federal financial assistance through Basic Education Opportunity Grants. Id. — U.S. at-, 104 S.Ct. at 1216. Grove City, supra, stands for the proposition that the purpose and effect of the assistance the students received through grants inured to Grove City College’s financial aid program; that it was the financial aid program itself that came within the purview of Title IX.

While Grove City was an action that primarily dealt with compliance regulations under Title IX, it is useful here with respect to the statute’s reach. Justice White limited the application of Title IX coverage to the financial aid program only, notwithstanding its obvious interrelationship with the entire educational institution, although the opinion did not touch upon that issue.

Defendants have submitted the affidavit of John Tarabino, dean of administration at Trinidad State Junior College. Tarabino held that position at the time relevant to this complaint. He is the chief financial officer and is responsible for the college's business operation and búdget. He states that during the period between January 1, 1981 through August 11, 1982 no unrestricted federal financial assistance was received by the college or through the board; that no federal financial assistance was received by the college or through the board that was specifically designated for, or allocated to, the physical education or language instructional program areas or the Standard Red Cross First Aid and Personal Safety course at Trinidad; that the college did receive federal financial assistance in other education program areas, but that the assistance received was not used to pay the salaries of instructors employed within the program areas in which Mabry taught.

Mabry’s affidavit states in part that she was last employed in the 1981-82 academic school year at Trinidad; that during that year she taught physical education courses, public speaking, and first aid.

For me to find institution wide coverage, I would have to ignore the plain meaning of §§ 1681 and 1682, its program-specific character, and the judicial determinations articulated in North Haven and Grove City.

THE § 1983 CLAIM

Defendants seek summary judgment of dismissal of Mabry’s 42 U.S.C. § 1983 claim, but advanced an insubstantial argument to support that desired result. However, I am convinced that Mabry, had she been able to prevail on her Title IX claim against the individual members of the board, would have had full redress to her grievances. That is to say that her remedies under Title IX would have been comprehensive and adequate had the facts been on her side. See Cannon v. University of Chicago, 441 U.S. 677, 703, 704, 709, 717, 99 S.Ct. 1946, 1960, 1961, 1964, 1968, 60 L.Ed.2d 560 (1979). When remedial devices provided in a particular Act are sufficiently comprehensive, they suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983. See Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 20, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). Therefore, it is

ORDERED that defendants’ motion for partial summary judgment for dismissal of plaintiff’s 20 U.S.C. § 1681 and its implementing regulations, and 42 U.S.C. § 1983 claims is granted as to the individual members of the State Board of Community Colleges and Occupational Education.


author: ALLEN SHARP, Chief Judge.

text:
    The RIDGE COMPANY, INC.; St. Joe Distributing Company, Inc., Plaintiffs, v. NCR CORPORATION; Control Data Corporation, c/o C.T. Corporate System, 1011 Merchants Bank Bldg., Indianapolis, Indiana; Magnetic Peripheral, Defendants.
    No. S 81-373.
    United States District Court, N.D. Indiana, South Bend Division.
    Nov. 20, 1984.

      Joseph L. Amaral, South Bend, Ind., for plaintiffs.
    Dennis A. Lieberman, Dayton, Ohio, Terry A. Crone, South Bend, Ind., for NCR Corp.
    Roland Obenchain, Thomas F. Lewis, Jr., South Bend, Ind., for Control Data/Magnetic Peripheral.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This cause is before the court on the motion for summary judgment of defendants, Control Data Corporation (Control Data) and Magnetic Peripheral, Inc. (Magnetic). Control Data and Magnetic contend that since privity of contract is required in Indiana to enforce implied warranty claims alleging only economic harm, and no privity exists between plaintiffs and either defendant, they are entitled to judgment as a matter of law on Counts I and III of plaintiffs’ second amended complaint. Magnetic further argues that it is entitled to summary judgment on Count VII of plaintiff’s second complaint in that the date of such complaint is more than two (2) years after plaintiffs’ cause of action accrued. For the reasons set forth below, defendants’ motion for summary judgment is granted.

This action arises from the sale of an NCR computer system to the plaintiffs, the Ridge Company, Inc. (Ridge Company) and St. Joe Distributing Company, Inc. (St. Joe Distributing), both of which are Indiana corporations. Plaintiffs owned and operated NCR equipment for several years prior to the acquisition of the Model 8410 computer system which is the subject of plaintiffs’ complaint. Having made the decision to acquire a computer system, the plaintiffs leased the equipment through United States Leasing Corp. instead of directly purchasing it through NCR Corporation. The plaintiffs have alleged frequent malfunction of the equipment since its delivery. Magnetic, a Minnesota corporation, manufactured one of the components included in the computer system obtained by the plaintiffs from NCR, specifically the Model 6590 Disc Drive Unit. Control Data purchased the unit from Magnetic-and sold it to NCR.

Plaintiffs commenced this action by filing a complaint in the St. Joseph County, Indiana, Superior Court on October 8,1981. Thereafter, on November 2, 1981, this case was removed to this court from the St. Joseph County, Indiana, Superior Court. At that time, NCR was the only defendant in this action. Plaintiffs filed an amended complaint adding Control Data as a defendant on January 3,1983. A second amended complaint was filed on September 19, 1983 adding Magnetic as a third defendant.

Plaintiffs allege nine (9) separate counts for relief in their second amended complaint. Counts III and IV pray for judgment against Control Data while Counts III, IV and VII pray for judgment against Magnetic. Count III is premised upon breach of an implied warranty of merchantability while Count IV alleges breach of an implied warranty against latent defects. Count VII alleges that NCR and Magnetic negligently designed and manufactured the Model 6590 Disc Drive unit, marketed and sold to plaintiffs by NCR as its own product.

Control Data and Magnetic filed their motion for summary judgment on August 1, 1984. Plaintiffs’ response was docketed on August 31, 1984. A hearing was held on this motion on October 5, 1984 in South Bend, Indiana. Jurisdiction of this court is predicated upon diversity of citizenship, 28 U.S.C. § 1332. Since jurisdiction is based upon diversity of citizenship, this court must apply the substantive law of the state of Indiana. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Gonzalez v. Volvo of America Corporation, 734 F.2d 1221 (7th Cir.1984).

I.

Summary judgment is appropriate only where the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. The party moving for summary judgment has the burden of establishing the lack of a genuine issue of material fact. Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir.1984). This court must view the evidence, and the reasonable inference to be drawn from the evidence, in the light most favorable to the party opposing summary judgment. Id. With these standards in mind, the court turns to the first issue presented by the motion for summary judgment of Control Data and Magnetic.

Inasmuch as Indiana law requires privity of contract to enforce implied warranty claims in a case of economic loss and no privity exists between plaintiffs and Control Data and plaintiffs and Magnetic, those defendants contend that they are entitled to summary judgment as to Counts III and IV of plaintiffs’ second amended complaint. Plaintiffs acknowledge that Indiana law is adverse to their position and urge this court to abolish privity of contract as a requirement in cases of economic loss foreseeable by a manufacturer.

It is the rule in Indiana that privity must be shown in order to sue for breach of the implied warranty of merchantability. Candlelight Homes v. Zornes, Ind.App. 414 N.E.2d 980 (1981); Lane v. Barringer, Ind.App. 407 N.E.2d 1173 (1980). See also Sanco, Inc. v. Ford Motor Co., 579 F.Supp. 893 (S.D.Ind.1984). Privity of contract relates to the bargained for expectations of the buyer and the seller. Richards v. Goerg Boat and Motors, Inc., 179 Ind.App. 102, 384 N.E.2d 1084 (1979). Therefore, when a cause of action rises out of economic loss related to the loss of the bargain or profits and consequential damages related thereto, the bargained for expectations of the buyer and the seller are relevant and privity between them is still required. Richards, 179 Ind.App. at 102, 384 N.E.2d at 1092 citing White & Summers, Uniform Commercial Code (1972).

It is clear from the record before the court that neither Control Data nor Magnetic were parties to the lease-purchase of the equipment involved in this case. Moreover, at the time of the sale plaintiffs were unaware that Control Data or Magnetic manufactured any of the allegedly defective computer equipment. See Plaintiffs’ Answer to Request for Admissions of Defendants Control Data Corporation and Magnetic Peripheral, Inc. (July 11, 1984.)

However, exceptions exist to the general rule requiring privity. A suit in implied warranty is permissible despite lack of privity, when the contractual arrangements between the manufacturer and the dealer create an agency relationship and where it is shown that the manufacturer’s agents participate significantly in the sale by means of advertising and personal contact with the buyer. Thompson Farms v. Corno Feed Products, 173 Ind.App. 682, 366 N.E.2d 3 (1977). An exception has been found to exist where the manufacturer’s agents participated significantly in the sale absent an agency relationship with the dealer. Richards, supra.

Again, the evidence in this record indicates the exceptions to the general rule do not apply to this case. There is no evidence in the record to indicate that Control Data and Magnetic were involved in advertising, purchasing negotiations, repairs, or indeed, engaged in any type of personal contact with plaintiffs. Neither Control Data nor Magnetic put their name on the computer equipment at issue, sold through NCR as an authorized dealer or made any repairs to the plaintiffs’ equipment.

In the absence of a ruling from the Supreme Court of Indiana directly on this issue and within the factual context of this case, plaintiffs urge this court to refuse to automatically apply existing state court precedent in this case. This court is cognizant of its right, in a situation such as this, to predict how the state’s highest court would decide were it confronted with the problem. Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967); Town of East Troy v. Soo Line Railroad Company, 653 F.2d 1123, 1128-29 (7th Cir.1980), cert. denied, 450 U.S. 922, 101 S.Ct. 1373, 67 L.Ed.2d 351 (1981). However, after careful research, this court finds neither confusion or ambiguities in the Indiana decisions nor a developing line of case authority contrary to the established law of privity in this state.

Plaintiffs cite to the case of Barnes v. MacBrown and Company, Inc., 264 Ind. 227, 342 N.E.2d 619 (1976) in an effort to show the Supreme Court of Indiana’s dissatisfaction with the privity requirement. Specifically, they quote the court as saying “[t]he traditional requirement of privity ... is an outmoded one.” The full quotation reads, “The traditional requirement of privity between a builder-vendor and a purchaser is an outmoded one.” Barnes, 264 Ind. at 229, 342 N.E.2d at 620. (Emphasis added.) The Barnes case deals with the breach of an implied warranty of fitness for habitation and having read the opinion in its entirety, this court finds no evidence of desire on the part of the highest court of this state to abrogate the privity requirement in any but this specific instance. Accordingly, there being no privity between plaintiffs and Control Data and Magnetic, Counts III and IV of plaintiffs’ second complaint are dismissed as to these defendants.

II.

Count VII of plaintiffs second amended complaint alleges that Magnetic “negligently designed and manufactured the Model 6590 Disc Drive unit supplied to the defendant, NCR Corporation, and sold to plaintiffs.” In order for this amended complaint to be effective, it must relate back to the date of filing of the original complaint pursuant to the provisions of Fed.R.Civ.P. 15(c). Magnetic argues that the amended complaints do not relate back in that they add new defendants without satisfying the requirements of Rule 15(c).

Rule 15(c) of the Federal Rules of Civil Procedure governs the relation back of amended pleadings involving new parties. It allows an amendment to relate back to the date of the original pleading if three prerequisites are satisfied. Those requirements are:

1. The claim alleged in the amended complaint must arise out of the same occurrence set forth in the original pleadings;
2. within the period provided by law for commencing the action against him, the party to be substituted by amendment has received such “notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits”, and
3. within the period provided by law for commencing the action against him, the party to be substituted by amendment knew or should have known that, but for a “mistake” concerning the identity of the proper party, the suit would have been brought against him.
Norton v. International Harvester Co., 627 F.2d 18, 20 (7th Cir.1980).

This court is of the opinion that the requirements for the application of the doctrine of, relation back pursuant to Rule 15(e) have not been met in this case.

The claims asserted against Magnetic clearly arose out of the same occurrence set forth in the original complaint against NRC. The claims relate to the alleged malfunctions of the Model 8410 computer system commencing November 1979. Thus, there can be no question that the first requirement for application of the relation back doctrine has been met.

The second requirement of Rule 15(c) deals with notice and it is this prerequisite that raises an obstacle to plaintiffs. In order for an amendment changing a party to take effect, the party to be brought in by amendment must receive notice of the institution of the action within “the period provided by law for commencing the action against him____” Two statutes of limitations may apply in this case, Ind.Code § 34-1-2-2 (injury to personal property) or Ind.Code § 33-1-1.5-5 (products liability statute of limitations). For purposes of this analysis, it is irrelevant which of the two statutes is the proper one since both are two (2) year statutes and the time element involved is the same.

Magnetic contends there are four (4) possible dates on which plaintiffs action accrued. The first is the date of manufacture of the disk drive unit. The unit was sold and shipped to Control Data from Magnetic on October 31, 1979. While the exact date of manufacture has not been established, it had to be prior to the date of shipping. Therefore, the relevant date is October 31, 1979. The second date of significance is the date of sale of the disk drive unit from Magnetic to NCR. There being no direct sale from Magnetic to NCR, this date cannot be ascertained. The third possible accrual date is the date of sale of the disk drive unit from NCR to plaintiffs that being November 16, 1979. The final date of possible accrual is the date a field engineer from NCR allegedly damaged the computer system and that has been established as December 31, 1980. Thus, December 31, 1980 represents the latest day of accrual of the cause of action at issue.

Plaintiffs’ second amended complaint adding Magnetic as defendant was filed September 19, 1983. The record demonstrates that Magnetic received actual notice of the action by means of a filed complaint after the statute of limitations had run. Alternatively, plaintiffs may rely on the theory of constructive notice. Magnetic is a wholly owned subsidiary of Control Data. If Control Data had timely notice of the suit, Magnetic would at least have had constructive, if not actual, notice of the pending action. However, Control Data itself was not sued within the statutory period. Assuming arguendo that the latest of defendants’ proffered accrual dates, December 31, 1980, was the actual date of accrual of plaintiffs’ cause of action, Control Data was not served within two (2) years of this date, having been added as a defendant by plaintiffs’ Amended Complaint filed January 3, 1983. Thus, an untimely suit against Control Data cannot be held to be proper notice to Magnetic of suit against it. To allow the suit to go forward under these conditions would prejudice Magnetic in that it would be deprived of the defense of the statute of limitations. Having found that the notice requirement has not been complied with, the court need not determine whether the third prerequisite of Rule 15(c) has been met.

Accordingly, it is the order of this court that Counts III and IV of the second amended complaint be DISMISSED as to defendants, Control Data Corporation and Magnetic Peripheral, Inc.; it is further ordered that Count VII of the second amended complaint be DISMISSED as to defendant, Magnetic Peripheral, Inc. Each party will bear its own costs. SO ORDERED.

      . Under the Uniform Commercial Code as enacted in Indiana, Ind.Code § 26-1-1-101 et seq., there are two implied warranties, merchantability (Ind.Code § 26-1-2-314) and fitness for a particular purpose (Ind.Code § 26-1-2-315). There is no specific implied warranty against latent defects. Plaintiffs represent that such implied warranty is included in the implied warranty of merchantability. See Plaintiffs’ Response to Motion of Defendant, NCR Corporation, for Summary Judgment, p. 17: "3. Implied Warranty Against Latent Defects — This is closedly related to the warranty of merchantability described above and the issue of fact for merchantability is also an issue of fact from which a breach of the implied warranty against latent defects might be found."

      . REQUEST NO. 1: Neither plaintiff had any contact whatsoever with defendants, Control Data Corporation or Magnetic Peripheral, Inc., before entering into that certain lease-purchase agreement described in plaintiffs second amended complaint.
      RESPONSE:
      ADMITTED
      REQUEST NO. 2: Plaintiffs, in their dealings with the defendant NCR Corporation, leading up to the lease-purchase of computer equipment that is the subject of their complaint were under the impression that said computer equipment was manufactured by NCR Corporation.
      RESPONSE:
      ADMITTED
      REQUEST NO, 3: Plaintiffs discovered after filing suit against NCR Corporation solely that NCR Corporation did not manufacture the computer equipment that is the subject of- this lawsuit.
      RESPONSE:
      ADMITTED
      REQUEST NO. 4: The computer equipment that is the subject of this lawsuit was labeled with an NCR Corporation marking or label and is not marked or labeled Control Data Corporation or Magnetic Peripheral, Inc.
      RESPONSE:
      ADMITTED
      REQUEST NO. 8: Neither Control Data Corporation nor Magnetic Peripheral, Inc. participated in the negotiations leading up to that certain lease-purchase agreement described in plaintiffs’ second amended complaint:
      RESPONSE:
      ADMITTED

      . Fed.R.Civ.P. 15(c) reads in pertinent part:
      (c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

      . Ind.Code § 34-1-2-2 reads in part:
      Sec. 2. The following actions shall be commenced within the periods herein prescribed after the cause of action has accrued, and not afterwards:
      (1) For injuries to person or character, for injuries to personal property, and for a forfeiture of penalty given by statute, within two (2) years.

      . Ind.Code § 33-1-1.5-5 reads:
      Sec. 5. Statute of Limitations. This section applies to all persons regardless of minority or legal disability. Notwithstanding IC 34-1-2-5, any product liability action must be commenced within two (2) years after the cause of action accrues or within ten (10) years after the delivery of the product to the initial user or consumer; except that, if the cause of action accrues more than eight (8) years but not more than ten (10) years after that initial delivery, the action may be commenced at any time within two (2) years after the cause of action accrues.