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Miller v. Long Island University
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In the Matter of Vinston Miller et al., Petitioners, v. Long Island
University et al., Respondents
[NO NUMBER IN ORIGINAL]
Supreme Court of New York, Special Term, Kings County
85 Misc. 2d 393; 380 N.Y.S.2d 917; 1976 N.Y. Misc. LEXIS 2009
February 19, 1976
DISPOSITION: [***1]
The petitioners' motions for a preliminary injunction and for a permanent
injunction are denied. The respondent's cross motion for a judgment dismissing
the petition is granted.
HEADNOTES:
Colleges and universities -- termination of dormitory contract -- due process --
respondent private university lawfully ousted petitioners students from their
dormitory apartment without hearing; dormitory contract authorizes respondent to
terminate residence contract without hearing upon violation of rules and
regulations of resident student handbook; petitioners' due process rights were
not violated since no State action was involved; fact that respondent receives
substantial governmental aid and subsidies does not make it agency or
instrumentality of government -- respondent's refusal to renew residence
contract does not unconstitutionally deprive petitioner paraplegic of equal
educational opportunities.
1. Petitioners, two students at Long Island University, a private university,
were lawfully ousted from their dormitory apartment without a hearing pursuant
to the dormitory contract which authorizes respondent university to terminate a
residence contract upon any violation of the rules, regulations [***2] and
procedures contained in the resident student handbook. Respondent notified
petitioners that their residencies would be terminated based upon "the right of
the University to establish rules and regulations regarding residence hall
living, as well as the right to deny accommodations to any student whose conduct
has been deemed unsuitable for dormitory living." Neither the contract nor the
rules of the university provide for a hearing before the faculty student
judicial review board. Petitioners' constitutional rights to due process were
not violated since no State action was involved. The fact that respondent
receives substantial governmental aid and subsidies does not automatically make
it an agency or instrumentality of government. There is no analogy between the
historically developed due process rights of public servants to protection in
their employment and a student who occupies a residence facility under a
contract with a university. Students in private universities receiving
governmental aid are only entitled to constitutional protections when racial,
ethnic or sex discrimination is practiced against them. Petitioners do not claim
any such discrimination or unequal [***3] treatment.
2. Although respondent's lawful refusal to renew the residence contract will
cause petitioner paraplegic considerable inconvenience, it does not
unconstitutionally deprive him of equal educational opportunities in the
university.
COUNSEL: Elicofon, Glassman, Babitch & Chasins (Barry Elicofon of counsel), for
petitioners.
Francis A. McGrath for respondents.
JUDGES: Thomas Russell Jones, J.
OPINIONBY: JONES
OPINION: [*394] [**918] In this CPLR article 78 proceeding, two students at Long
Island University seek to enjoin the university authorities to renew their
residence contract and to prevent their ouster from a dormitory apartment, until
they have been served with charges of alleged misconduct and afforded a hearing
thereon before a faculty student judicial review board. Petitioners claim that
by terminating the contract, without filing charges against them and granting
them a hearing, the respondent has violated their constitutional rights to due
process under the Fourteenth Amendment to the United States Constitution and
section 11 of article I of the New York State Constitution. Petitioners also
contend that the university's actions will deprive them of "equal [***4]
educational opportunities" although their status as students has not been
disturbed.
The university has cross-moved to dismiss the petition on the grounds that the
so-called "dormitory contracts" were terminated as a matter of right reserved in
the contracts and [*395] that the termination of the petitioners' occupancy was
effected as an administrative decision, in accordance with the rules and
regulations of the institution. The respondent disputes the petitioners' claim
that its refusal to renew their residency contract will deprive them of any
constitutionally protected right, or of "equal educational opportunities" in the
university.
The petitioners' motions for a temporary and permanent injunction are denied.
Respondent's motion to dismiss the petition is granted.
The petitioner, Vinston Miller, is a paraplegic. He and the copetitioner, Fred
Patterson, occupy an apartment together in a Long Island University residence
facility, known as Conolly Hall, located at 190 Willoughby Street, in Brooklyn,
pursuant to identical written contracts dated May 5 and June 2, 1975,
respectively. The dormitory contracts entitled the petitioners, as students
enrolled in the Long [**919] [***5] Island University Center, to occupy a room
together for the summer 1975 semester.
Long Island University is a private, nonprofit institution of higher education.
The university receives substantial Federal and State aid and subsidies.
Paragraph 8 of the dormitory contract incorporates by reference "All the rules,
regulations and procedures outlined" in a 38-page document titled the Spring
1975 Resident Student Handbook. The contract provides, inter alia, that any
violation of its terms or the handbook rules "will result in disciplinary action
and possible termination." On July 1, 1975 Conolly Residence Hall Director
notified petitioners by letter that their residencies would be terminated as of
September 29, 1975, "Although no formal charges (had) been referred" against
them, and informed them that "we base our decision on the right of the
University to establish rules and regulations regarding residence hall living,
as well as the right to deny accommodations to any student whose conduct has
been deemed unsuitable for dormitory living." The termination letter advised the
students to seek other housing accommodations. The petitioners, represented by
attorneys from the Legal [***6] Aid Society of New York, then began negotiations
with the university authorities to remain in residence, which culminated in a
signed stipulation dated August 27, 1975, whereby they agreed to quit Conolly
Hall by September 26, 1975. Notwithstanding the stipulation, petitioners
continued to occupy the residence facilities beyond the fixed date and appealed
to the student government association [*396] which intervened on their behalf
with the university president. By letter dated October 3, 1975, President Clark
rejected the student government association's appeal that petitioners be allowed
to remain in residence. The president denied the students' charges that their
ouster from the residence hall was arbitrary or that its action inherently
maligned their reputations. The president's letter was published in Seawanhaka,
the school newspaper, to refute the petitioners' suggestions that the
university's refusal to renew their residence contract constituted an
implication of criminal behavior or stigmatized them.
No due process or other constitutional issue is involved here. No State action
arises from the fact that Long Island University, a private institution,
receives [***7] substantial governmental aid and subsidies. The law of this case
is as stated in Grafton v Brooklyn Law School (478 F2d 1137, 1142): "while a
grant or other index of state action may be impermissible when it 'fosters or
encourages' discrimination on the basis of race, the same limited involvement
may not rise to the level of 'state action' when the action in question is
alleged to affect other constitutional rights." (Emphasis added.)
[**920] In Grossner v Trustees of Columbia Univ. in City of N. Y. (287 F Supp
535, 547-548), the Federal District Court for the Southern District, New York,
set forth the policy reasons which prompts judicial reluctance to invoke the
"State action doctrine" in regard to private universities, saying: "that receipt
of money from the State is not, without a good deal more, enough to make the
recipient an agency or instrumentality of the Government. Otherwise, all kinds
of contractors and enterprises, increasingly dependent upon government * * *
would find themselves charged with 'state action' in the performance of all
kinds of functions we still consider and treat as essentially 'private' for all
presently relevant purposes." n1 The petitioners [***8] rely on the cases of
Board of Regents v Roth (408 U.S. 564 [a nontenured assistant professor at a
State College who was not rehired]); Perry v Sindermann (408 U.S. 593 [a college
professor at State College who was not rehired]); Velger v Cawley (525 F2d 334
[a probationary policeman discharged from the Police Department of City of New
York]); Lombard v Board of Educ. of City of N. Y. (502 F2d 631 [*397] [a
dismissed probationary teacher]); Matter of Jackson v Wallach (48 AD2d 925 [a
probationary hospital attendant at Brooklyn State Hospital who was fired]);
Matter of Mengrone v New York City Off-Track Betting Corp., 83 Misc 2d 105 [a
dismissed provisional employee of the New York City Off-Track Betting Corp.]),
to support their due process claims. These cases involved the removal or
dismissal of employees from their jobs with State agencies or quasi-public
bodies. They bear no resemblance to the issues in this case. It is settled law
that public employees enjoy property interests in their civil service positions
and may not be dismissed without a hearing, or in accordance with due process.
There is no analogy between the historically developed [***9] due process rights
of public servants to protection in their employment and a student who occupies
a residence facility under a contract with a university. Courts have
consistently refused to apply the "State action" doctrine or extend due process
rights to students attending private universities. (Cf. also other
jurisdictions, viz.: Robinson v Davis, 447 F2d 753, cert den 405 U.S. 979;
Bright v Isenbarger, 445 F2d 412; Blackburn v Fisk Univ., 443 F2d 121; Browns v
Mitchell, 409 F2d 593; Rowe v Chandler, 332 F Supp 336; McLeod v College of
Artesia, 312 F Supp 498; [**921] Counts v Voorhees Coll., 312 F Supp 598, affd
439 F2d 723; Torres v Puerto Rico Jr. Coll., 298 F Supp 458; Greene v Howard
Univ., 271 F Supp 609, dsmd as moot 412 F2d 1128.)
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Public universities are recognized as instrumentalities of the State and
constitutional protections are available to their students (cf. Dixon v Alabama
State Bd. of Educ., 294 F2d 150, cert den 368 U.S. 930).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The United States [***10] Court of Appeals, for the Second Circuit, in Wahba v
New York Univ. (492 F2d 96, cert den 419 U.S. 874), declared that a private
university which receives Federal or State moneys does not thereby automatically
become an agency or instrumentality of government. (Cf. also Grafton v Brooklyn
Law School, 478 F2d 1137, supra; Grossner v Trustees of Columbia Univ. in City
of N. Y., 287 F2d 535, supra; Powe v Miles, 407 F2d 73). The jurisdiction of
Federal courts cannot be invoked merely because a private college receives
Federal assistance. (Cf. Counts v Voorhees Coll., 312 F Supp 598, 606, affd 439
F2d 723, supra), except that courts will enjoin a university to respect "one
constitutional command, a prohibition of racial discrimination" by those
engaging in Federally financed projects ( Wahba v New York Univ., supra, p 102).
The petitioner, Vinston Miller, claims that he will be deprived of equal
educational opportunities in the university by [*398] the nonrenewal of his
residency contract because of his paraplegic condition. He says that his
physical handicap, now facilitated by the proximity of Conolly Hall to the
campus and classrooms, will [***11] make it impossible for him to continue his
studies at Long Island University. Miller asserts that his family resides in
Westchester and cites the difficulty he will encounter in finding a new
apartment, to support his contention that he will be forced to discontinue his
education at the university's Brooklyn Center. It appears that Conolly Hall is
equipped to accommodate handicapped students, like Miller, who use wheelchairs,
and is therefore uniquely suited to facilitate his special needs.
Students in private institutions of higher learning are not clothed with the
protections of the United States Constitution and amendments, except when racial
discrimination is practiced against them and probably where irrelevant standards
of ethnic background or sex are used to exclude them from full participation in
a university which benefits from State aid or tax exemption (cf. San Antonio
School Dist. v Rodriguez, 411 U.S. 1, 35). In Flemming v Adams (377 F2d 975,
977-978), the court said: "The United States Constitution does not secure * * *
the right to an education; rather the Constitution secures the * * * right to
equal treatment where the state has undertaken to provide public [***12]
education to the persons within its borders."
[**922] Vinston Miller's projected ouster from residence in Conolly Hall will
undoubtedly cause him considerable inconvenience but this ownership right the
university certainly has. The petitioners do not claim racial discrimination nor
have they proved that "unequal treatment" of any kind was practiced by the
university as between them and other students in residence.
Neither the contract nor the rules of the university provide for a hearing
before the faculty student judicial review board in a case of this kind. The
basic relationships between students and a private university are contractual
and traditional. From the ninth century, when the first European university, a
medical school, was established in Salerno, the university has been a
close-knit, self-governing community of higher learning which made and applied
its own internal rules and disciplines. (Cf. People ex rel. Cecil v Bellevue
Hosp. Med. Coll. of City of N. Y., 60 Hun 107, affd 128 NY 621; Goldstein v New
York Univ., 76 App Div 80; Booker v Grand Rapids Med. Coll., 156 Mich 95; [*399]
Barker v Bryn Mawr Coll., 278 Pa 121; Stetson Univ. v [***13] Hunt, 88 Fla 510;
Anthony v Syracuse Univ., 224 App Div 487; Matter of Carr v St. John's Univ., N.
Y., 17 AD2d 632, affd 12 NY2d 802; Greene v Howard Univ., 271 F Supp 609,
supra.)
The cases of Anthony v Syracuse Univ. (supra), and Carr v St. John's Univ.
(supra), are classical examples of a university's exclusive control over its own
internal affairs. In Anthony, a student was expelled because she was said to be
not a "typical Syracuse girl." After investigating rumors about her behavior,
the school authorities dismissed Ms. Anthony because they disliked her life
style. The Appellate Division, Fourth Department, held that the officials were
not obliged to give reasons for dismissing the student on such vague grounds
because she had signed a registration card which reserved to the university the
right to demand her withdrawal at any time and for any reason it deemed
appropriate. In Carr, two students attending a Catholic university married each
other in a civil ceremony and were forthwith expelled for not acting in
conformity with Christian ideals and conduct. Since they had consented to this
strict religious standard at registration, the [***14] court sustained the
students' ouster notwithstanding that their actions were in keeping with public
policy which views religious beliefs and practices as personal and inviolate.
The petitioners' motions for a preliminary injunction and for a permanent
injunction are denied. The respondent's cross motion for a judgment dismissing
the petition is granted.
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