Opposition — Geraci v. St. Xavier High School

IN THE

SUPREME COURT OF THE UNITED STATES

MARK W. GERACTI, et al.,

Petitioners,

v.

ST. XAVIER HIGH SCHOOL, et al.,

Respondents,

é

On Petition For A Writ Of Certiorari To The

Supreme Court Of Ohio

RESPONDENTS’ BRIEF IN OPPOSITION

DINSMORE, SHOHL, COATES

& DEUPREE

WILLIAM L. BLUM, Esq.

GARY D. BULLOCK, Esq.

KENT W. SEIFRIED, Esq.

2100 Fountain Square Plaza

511 Walnut Street

Cincinnati, Ohio 45202

(513) 621-6747

Counsel for Respondents

as aan SNP EAT

COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450

INDEX

QUESTIONS PRESENTED FOR REVIEW ......

STATEMENT OF THE CASE ................

REASONS FOR DENYING THE WRIT ........

I. The Petition has been Rendered Moot By

the Graduation of Petitioner Mark Geraci

from Another Private, Parochial High

PE i neo aie ss oialshel Gham Re eae ss

II. The Decision Below is in Accord with the

Decisions of this Court, and of Lower Fed-

eral and State Courts, as to the Application

of the Due Process Clause of the Fourteenth

Amendment to Private, Parochial Schools.

CO hs ER eon Hees

APPENDIX A (The Cincinnati Enquirer, June

12, 1979 at D-3, Col. 2) ........... Roe

CITATIONS

Cases: Page

Amalgamated Food Employees Union Local 590 v.

Logan Valley Plaza, Inc., 391 U.S. 308 (1968) .. 9

Belk v. Chancellor of Washington Univ., 336 F.

Supp. 45 (E.D. Mo. 1970) ........... Se 9

Berrios v. Inter American Univ., 535 F.2d 1330 (Ist

Cir. 1976) PERLE SG rate D cblhs ope eRe 9

Board of Curators of the University of Missouri v.

Horowitz, 435 U.S. 78 (1978)... 14

Board of School Commissioners of the City of In-

dianapolis v. Jacobs, 420 U.S. 128 (1975) 5

Bright v. Isenbarger, 314 F. Supp. 1382 (N.D. Ind.

1970) , affirmed, 445 F.2d 412 (7th Cir. 1971) | 11, 12

Buckton v. NCAA, 366 F. sig 114 1152 (D. Mass.

i i) SAE been ue Wee Mae. ae rg 9

Central Hardware Co. v. NLRB, 407 U.S. 539 (1972) —:18

Civil Rights Cases, 109 U.S. 3 (1883) ; Sey

DeFunis v. Odegaard, 416 U.S. 312 (1974) |. 4

Doremus v. Board of Education of the Borough of

Hawthorne, 342 U.S. 429 (1952) 5

Esteban v. Central Mo. State College, 415 F.2d 1077

(8th Cir. 1969) eae ig Sree eis 1]

Evans v. Newton, 382 U.S. 296 (1966) 7

Flagg Bros., Inc. v. Brooks,

436 U.S. 149 (1978) : . 6, 8, 9, 11, 12, 18

Il.

Page

Franks v. Bowman Transportation Co., 424 U.S. 747

GRUPO Sica cuanto Reo OeHEes ERIS Shaws waar 5

Furumoto v. one 362 F. ‘had 1267 (N.D. Calif.

OFAN oe ks eb ee Le aha a Bee Aon 11, 12

Goss v. Lopez, 419 U.S. 565 (1975) ............ 13, 14

Grafton v. Brooklyn Law School, 478 F.2d 1137

Ce SNE i heat Sng ir Mera Tt 9, 11

Great American Fed. S. & L. Assn. v. Novotny, 47

USLW 4681 (June 11,1979) .................. 18

Greenya v. George Washington Univ., 512 F.2d 556

(D.C. Cir.) cert. denied, 423 U.S. 995 (1975) 8, 9, 11, 12

Griffin v. Breckenridge, 403 U.S. 88 (1971) ...... 13

Grossner v. Trustees of Columbia Univ., 287 F.

_ Supp. 535 (S.D.N.Y. 1968) .................... 12

Hammond v. University of Tampa, 344 F.2d 951

(Oth Re: FN ke OER eee ah oS 9

Hicklin v. Coney, 290 U.S. 169 (1933)... 5

Hudgens v. NLRB, 424 U.S. 507 (1976) ........ 9, 12

Huff v. Notre Dame High School of West Haven,

456 F. Supp. 1145 (D. Conn. 1978) | 10, 11, 12

Jackson v. Metropolitan Edison Co., 419 U.S. 345

i | SN Een Pen ea a a ne» i ee ee AD

Koblitz v. Western Reserve Univ., 11 Ohio Cir.

Dec. 515, 21 Ohio C.C. 144 (1901) ............ 14

Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) ... 12-13

Lorentzen v. Boston College, 440 F. Supp. 464 (D.

Mass. 1977), affirmed, 577 F.2d 720 (Ist Cir. 1978) . 9

IV.

Page

Melanson v. Rantoul, 421 F. Supp. 492 (D.R.1.

1976) , affirmed sub nom., Lamb v. Rantoul, 561

F.2d 409 (Ist Cir. 1977) .......... Leshe'tes 9-10

Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) .. 11

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ....8, 11

Powe v. Miles, 407 F.2d 73 (2d Cir. 1968) .....'. .9, 12

Presseisen v. Swarthmore, 71 FRD 34 (E.D. Pa. 1976) . 9

Schoppelrei v. Franklin Univ., 11 Ohio App.2d 60,

eae N.E.26 354 (1967) ..........:....... a a

Shelley v. Kraemer, 334 U.S. 1 (1948) .......... 6

Slaughter v. Brigham Young Univ., 514 F.2d 622

(10 Cir.) , cert. denied, 423 U.S. 898 (1975) ... 9

State, ex rel. Devine v. Baxter, 168 Ohio St. 559,

SOW Cee TOR MAOOOD bs cere ds eee eevee 5

Whiteside v. Kay, 446 F. Supp. 716 (W.D. La. 1978) . 14

Wisch v. Sanford School, 420 F. Supp. 1310 (D.

PE NC Cian Geta We GWN Scorch de hice 10, 11, 12

Statutes:

Ohio Rev. Code §2721.09 ................. Geen eee 5

Ohio Rev. Code § 3321.04 RGR ae rg ay Nee ll

IN THE

SUPREME COURT OF THE UNITED STATES

No. 78-1847

MARK W. GERACI, et al.,

Petitioners,

v.

ST. XAVIER HIGH SCHOOL, et al.,

Respondents,

On Petition For A Writ Of Certiorari To The

Supreme Court Of Ohio

RESPONDENTS’ BRIEF IN OPPOSITION

QUESTIONS PRESENTED FOR REVIEW

1. Whether, where a petitioner seeks reinstatement to

high school, a petition for certiorari is rendered moot

by reason of the petitioner's graduation from another

high school?

2. Whether the strictures of the due process clause of

the fourteenth amendment apply to the disciplinary

procedures of a private, parochial high school?

2

STATEMENT OF THE CASE

On June 2, 1978, the last day of classes for the school

year, Mr. James Downie, a teacher at St. Xavier High

School, was administering a test to a junior English class,

including Petitioner Mark Geraci. Thomas McKenna, a

student at another Cincinnati parochial high school, stole

into the classroom and struck Mr. Downie in the face with

a pie. A struggle ensued between McKenna and Mr.

Downie and other teachers. Mr. Downie and another

teacher were injured and a glass exit door to the school

was shattered in the melee, described by Mark Geraci in

the trial court as a “riot.”

Upon investigation by the school administrators it was

learned that Mark Geraci had solicited his friend McKenna

to attack Mr. Downie. Respondent Thomas Meyer, the

Assistant Principal for Student Affairs, and the school

principal, Respondent Michael Trainor, agreed that Mark

Geraci should be contacted and given an opportunity to

explain his involvement, if any, and that if he admitted to

involvement, he would be expelled. Geraci was called at

home by Mr. Meyer, who had primary responsibility for

disciplinary matters, and asked to come to the school.

Geraci had the opportunity to have his mother accompany

him but he told her not to do so. Upon being confronted

by Mr. Meyer with the accusations against him, Geraci

voluntarily admitted his complicity in the planned attack.

Faced with this admission, Mr. Meyer expelled him.

Subsequently both Mark Geraci and his father, Peti-

tioner Joseph Geraci, were afforded numerous opportuni-

ties to confer privately with St. Xavier's administrators,

including the Principal, Mr. Trainor, and the President,

Respondent Fr. Paul Borgmann. Joseph Geraci met with

Mr. Trainor on Saturday, the day following the attack.

3

On the next Monday, both Mark Geraci and his father met

with Father Borgmann, and on Tuesday Mr. Geraci con-

ferred again with Father Borgmann. In view of the sever-

ity of the acts of which Mark Geraci was admittedly a part,

the expulsion was upheld.

Contrary to Petitioners’ assertions, the evidence at trial

clearly established that Mark Geraci did not withdraw from

the plot to attack Mr. Downie. During his initial interview

with Mr. Meyer, Mark Geraci alleged that he believed

that McKenna would not actually perform the attack. Sub-

sequent to the expulsion, however, facts to substantiate

the lack of veracity in this contention came to light for the

first time.

The original plan was hatched a few weeks before the

attack by a group of St. Xavier students, including Mark

Geraci. Mark agreed to and did contact his friend Mc-

Kenna to enlist his aid. By Mark Geraci’s own admission

at trial the idea then became dormant and “died out.”” The

plan was revived on the evening before the attack during

a telephone conversation between Geraci and McKenna

(initiated by Geraci) at which time Geraci provided in-

structions as to che location and time when Mr. Downie

could be found and the most effective route of entrance to

and escape from the school premises. By agreement, Geraci

then telephoned a mutual acquaintance to arrange for him

to transport McKenna to St. Xavier the next day. The

attack occurred in exactly the manner planned by Geraci

(a plan unknown to the other St. Xavier students he claims

were involved), except that McKenna was apprehended

by school authorities and, upon questioning, implicated

Geraci. When questioned by Mr. Meyer and, later that

same day, by his parents, Mark Geraci concealed these

facts, thereby evidencing the depth of his complicity in

the plot.

4

At trial, Mr. Trainor and Fr. Borgmann described the

attack on Mr. Downie which Mark Geraci helped engineer

as a most serious breach of discipline and decorum and as

a traumatic experience for the teacher and for St. Xavier

High School as an educational institution. The school

administrators reached the very difficult decision to expel

Mark Geraci for participating in this attack while always

showing, as found by the Court of Appeals, “a genuine

human concern” for Mark and his father.

REASONS FOR DENYING THE WRIT

I. THE PETITION HAS BEEN RENDERED

MOOT BY THE GRADUATION OF PE-

TITIONER MARK GERACI FROM AN-

OTHER PRIVATE, PAROCHIAL HIGH

SCHOOL.

Following his expulsion from St. Xavier High School

for his admitted complicity in an attack on a teacher,

Petitioner Mark Geraci enrolled at another private, paroch-

ial high school, Moeller High School, to complete his senior

academic year. He has now graduated from this school.

Petitioners’ Brief p. 22.

Mark Geraci’s graduation renders this action to have

his expulsion set aside and to be reinstated at St. Xavier

moot. DeFunis v. Odegaard, 416 U.S. 312 (1974). This

conclusion is not altered by the fact that petitioners in their

brief now raise an asserted prayer for expungement of

Mark Geraci’s records since this matter was not brought

5

before the trial court. Board of School Commissioners of

the City of Indianapolis v. Jacobs, 420 U.S. 128 (1975) ."

Moreover, petitioners have admitted that no real viable

controversy remains pending before this Court for decision.

Rather, they seek a writ of certiorari as a matter of abstract

principle, as admitted in their publicity statements to the

press. Appendix A hereto. It is a fundamental judicial

principle that such purely academic, abstract questions are

to be dismissed as moot. Hicklin v. Coney, 290 U.S. 169,

173 (1933). See State ex rel. Devine v. Baxter, 168 Ohio

St. 559, 156 N.E.2a 746 (1959). “[T]his Court does not

sit to decide arguments after events have put them to rest.”

Doremus v. Board of Education of the Borough of Haw-

thorne, 342 U.S. 429, 433 (1952). The petition for certior-

ari should be denied because the issue raised is moot and

petitioners assert a incre abstract principle.

’ Franks v. Bowman Transportation Co., 424 U.S. 747 (1976) is easily

ble and of no aid to Petitioners since it involved a class

action which, because the class was certified before the claims of the

nominal plaintiffs were mooted, continued to involve a viable contro-

versy. Ohio Revised Code § 2721.09, cited by Petitioners, likewise affords

no additional relief since this provision only authorizes an Ohio court

to grant incident relief subsequent to that which the party has already

pleaded and secured.

6

II. THE DECISION BELOW IS IN ACCORD

WITH THE DECISIONS OF THIS

COURT, AND OF LOWER FEDERAL

AND STATE COURTS, AS TO THE AP-

PLICATION OF THE DUE _ PRO-

CESS CLAUSE OF THE FOURTEENTH

AMENDMENT TO PRIVATE, PARO.-

CHIAL SCHOOLS.

The decision that the disciplinary actions of St. Xavier

High School, a private, parochial school, are not subject

to the due process clause of the fourteenth amendment to

the United States Constitution conforms with nearly a

century of settled constitutional doctrine.

For nearly one hundred years this Court has afirmed and

reaffirmed “the essential dichotomy” set forth in the four-

teenth amendment between acts of the state and conduct

of private entities. Jackson v. Metropolitan Edison Co.,

419 U.S. 345, 349 (1974) ; Shelley v. Kraemer, 334 US. 1,

13 (1948); Civil Rights Cases, 109 US 3 (1883). The

fourteenth amendment’s mandate of due process extends

only to the actions of a state, or one acting as the state

through the exercise of a traditional and exclusive state

prerogative. Flagg Bros., Inc. v. Brooks, 436 U.S. 149,

157 (1978) ; Jackson, supra at 351; Civil Rights Cases, supra

at 11. Accordingly, this Court and a consistent host of

lower federal and state courts have unfailingly refused to

subject private, parochial schools to the strictures of this

amendment.

Private educational institutions, such as St. Xavier High

School, do not act as the state because they engage in a

function (education) also performed by the public sector

and of interest to the public at large. This principle most

7

recently was confirmed by this Court in Jackson, supra at

354, and at n. 9,?

We do not believe that such a status converts their

every action, absent more, into that of the State.

9 The argument has been impliedly rejected by this Court on

a number of occasions. See, e.g., Civil Rights Cases, 109 U.S.

3, 8 (1883). It is difficult to imagine a regulated activity more

essential or more “clothed with the public interest” than the main-

tenance of schools, yet we stated in Evans v. Newton, 382 U.S.

296, 300 (1966):

“The range of governmental activities is broad and varied, and

the fact that government has engaged in a particular activity does

not necessarily mean that an individual entrepreneur or manager

of the same kind of undertaking suffers the same constitutional

inhibitions. While a State may not segregate public schools so

as to exclude one or more religious groups, those sects may main-

tain their own parochial educational systems.”

This exclusion of private schools and education from the

parameters of the public function doctrine is fully con-

sistent with the rationale which underlies the narrow

bounds of this doctrine. As articulated by this Court,

under the public function, or sovereign function, doctrine,

State action [is] present in the exercise by a private

entity of powers traditionally exclusively reserved to

the State.

Jackson, supra at 352. Thus, because a function must be

one exclusively performed by the state for it to be a “public

function,” this Court consistently has declined to extend

the public function doctrine to those instances where

2 Petitioners concede, as they must, that this Court has never de-

termined that a private, secondary school engages in a public function

when it disciplines one of its students so as to raise due process con-

siderations. Petitioners’ Brief p. 16.

8

private entities engage in activities “not traditionally the

exclusive prerogative of the State.” Jackson, supra at 353.8

As this Court has acknowledged, education has never been

the “exclusive prerogative of the State.” Private schools

and private education have a long and distinguished history

in our country existing coextensive with public schools

and public education, as equai partners in the rearing of

the nation’s youths. Pierce v. Society of Sisters, 268 U.S.

510, 534 (1925) 4 Thus, since education is not an exclusive

prerogative of the state, such that its delegation by the state

to a private entity would be accompanied by fourteenth

amendment considerations, private institutions engaged in

educational activities are not state actors for the purposes of

the due process clause of the amendment.

Lower federal courts have considered the public function

doctrine in the context of the disciplinary procedures of

private schools and consistently have held that such are

not bound by constitutional restraints imposed on similar

public school procedures. In Greenya v. George Wash-

ington Univ., 512 F.2d 556 (D.C. Cir.) , cert. denied, 423

U.S. 995 (1975), the Court of Appeals for the District of

3 This Court has limited the application of this doctrine to two areas,

the conduct of elections, and company towns encompassing all the

attributes of a municipality, which “have in common the feature of

exclusivity.” Flagg Bros., Inc., supra at 159.

4 In considering Petitioners’ appeal, the Court of Appeals of the First

Appellate District of Ohio correctly acknowledged that private education

is not a power traditionally and exclusively reserved to the state and that,

therefore, private schools do not necessarily engage in a public function.

It observed: “Education is not now and has never been an exclusive

function of the state. Privately controlled and administered educational

institutions have a long and distinguished history in this country.”

Opinion of Court of Appeals, pgs. 7a-8a of Petitioners’ Brief, Appendix

D. (Citations omitted)

9

Columbia rejected the argument, made at bar by peti-

tioners,5 that private schools engage in a public function.

It reasoned that:

education, even at the primary or secondary levels,

has never been a state monopoly in the United States.

As a historical matter, the widescale private develop-

men of higher education in this country preceded state

entry into the field by more than a century. Powe

v. Miles, 407 F.2d 73, 79-80 (2nd Cir. 1968), re-

affirmed, Grafton v. Brooklyn Law School, 478 F.2d

1137 (2nd Cir. 1973).

Id. at 561, n. 10. In accord are Berrios v. Inter American

Univ., 535 F.2d 1330, 1333 (1st Cir. 1976); Grafton v.

Brooklyn Law School, 478 F.2d 1137, 1140 (2d Cir. 1973) ;

Powe v. Miles, 407 F.2d 73, 79-80 (2d Cir. 1968) ; Lorent-

zen v. Boston College, 440 F. Supp. 464, 465 (D. Mass.

1977) , affirmed 577 F.2d 720 (1st Cir. 1978); Melanson

5 Petitioners’ authorities cited at page 7 of their Brief are readily

listinguishable. Slaughter v. Brigham Young Univ., 514 F.2d 622 (10th

Cir.), cert. denied, 423 U.S. 898 (1975) deals solely with the issue of a

student’s rights under an enrollment contract and does not address the

public function doctrine and constitutional due process, as Petitioners

suggest. The holding in Buckton v. NCAA, 366 F. Supp. 1152 (D.

Mass. 1973) was based upon Amalgamated Food Employees Union

Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968), which has

since been overruled by this Court. Hudgens v. NLRB, 424 U.S. 507

(1976); Flagg Bros., Inc., supra at 159. Moreover, Buckton is also

suspect on the peculiar facts involved. That is, Boston University asked

to be joined in the action since it favored the position of the plaintiff-

hockey players. It wanted the plaintiffs to play for the school team and,

hence, had no reason to dispute jurisdiction. Belk v. Chancellor oj

Washington Univ., 336 F. Supp. 45 (E.D. Mo. 1970) and Hammond

v. University of Tampa, 344 F. 2d 951 (5th Cir. 1965), did not involve

the issue of private school discipline. Nevertheless, the Belk court rec-

ognized “the principle that the power exercised by a private university

in disciplining student members is not ‘state action’.” 336 F. Supp.

at 47. In Presseisen v. Swarthmore, 71 FRD 34 (E.D. Pa. 1976) the

issue was the sufficiency of allegations of state action by a private school.

The evidentiary sufficiency of such claims was not before the court.

10

v. Rantoul, 421 F. Supp. 492, 495 (D. R.I. 1976) , affirmed

sub nom., Lamb v. Rantoul, 561 F.2d 409 (1st Cir. 1977) .

Two further decisions are particularly illustrative. In

Huff v. Notre Dame High School of West Haven, 456 F.

Supp. 1145 (D. Conn. 1978), a private, parochial high

school student was expelled for disciplinary reasons. He

was allowed to confer with school administrators concern-

ing his expulsion, but without the assistance of his parents

or counsel. The district court dismissed the student's

complaint that he had been denied procedural due process

rights under the fourteenth amendment, holding that pri-

vate, parochial high schools are not engaged in a “public

function” because they provide educational services. Id.

at 1149-50. Similarly, in Wisch. v. Sanford School, Inc.,

420 F. Supp. 1310 (D. Dela. 1976) , in which a student was

expelled from a private high school for the possession and

use of marijuana, the district court held the due process

strictures of the fourteenth amendment inapplicable to the

disciplinary actions of the private school.

The constitutional doctrine announced by this Court

and consistently applied by lower courts prohibits only a

state or one acting as the state from depriving another of

an interest encompassed within the protection of the

fourteenth amendment. Petitioners concede that “St.

Xavier High School is not a part of the State of Ohio.”

Petitioners’ Brief p. 12. Moreover, when it disciplined

petitioner Mark Geraci for plotting and assisting in the

attack on one of its teachers, St. Xavier was not engaging

in an exclusive governmental prerogative, such as to be

acting as the state. Thus, St. Xavier's action was not

subject to the stricture of the fourteenth amendment.

This conclusion is not altered by the fact that St. Xavier,

like all private schools, is subject to the state’s power to

FO A et a NS ITER OE

a a

1]

prescribe minimum educational requirements, nor by the

fact that, as found by the trial court, “St. Xavier High

School receives only minimal and indirect aid from the

State of Ohio.” Judgment Entry, Finding Number 1,

Page 27a of Petitioners’ Brief, Appendix H.

This Court long has recognized the power of the state to

prescribe reasonable uniform regulations applicable to all

schools without altering or interfering with the separate

and distinct nature of private schools. Pierce, supra at 534.

The mere fact that an activity, such as education, is subject

to some state regulation does not convert it into state action.

Jackson, supra at 350; Moose Lodge No. 107 v. Irvis, 407

US. 163, 176-177 (1972) .¢

Lower federal courts consistently have applied this prin-

ciple and uniformly held that the state’s legitimate interest

in the regulation of the education of children in all schools,

public and private, does not ineluctably convert private

schools into an arm of the state. Grafton, supra; Huff,

supra; Wisch, supra; Furumoto v. Lyman, 362 F. Supp.

1267 (N.D. Calif. 1973) . Moreover, private schools are not

held to be state actors:

1) because of the grant of a tax exemption. Greenya,

supra at 560 n.4; Huff, supra at 1148; Wisch, supra

at 1314; Bright v. Isenbarger, 314 F. Supp. 1382,

1396 (N.D. Ind. 1970), affirmed, 445 F.2d 412

(7th Cir. 1971) ;

6 Petitioners’ reliance on Ohio Revised Code § 3321.04(C) adds

nothing to their contentions. Petitioners’ Brief p. 16. This statute

simply acknowledges a school’s “inherent authority to maintain order

and to discipline students.” Esteban v. Central Mo. State College,

415 F.2d 1077, 1088 (8th Cir. 1969) (Judge, now Justice, Blackmun).

Such recognition of St. Xavier's precedent inherent right to discipline

its students does not transmute its acts pursuant to this private right

into a action. Flagg Bros., Inc., supra at 164-165; Jackson, supra

at ‘

2) because of the grant of a corporate charter.

Greenya, supra at 560 n.4; Powe, supra at 801;

Furumoto, supra at 1278; or

3) because of the receipt by some students or their

parents of transportation or school book subsidies.

Huff, supra at 11487; Wisch, supra at 1314; Bright,

supra at 1396; Grossner v. Trustees of Columbia

Univ., 287 F. Supp. 535 (S.D.N.Y. 1968) .

Lacking any constitutional or doctrinal authority for

their contention that private entities are bound by the

fourteenth amendment, Petitioners would have this Court

consign a century of constitutional interpretation and

doctrine to the scrapyard of history. On one level, they ask

the Court arbitrarily to designate all nonprofit, private

entities, such as schools, churches, charities, and nonprofit

foundations, as state actors for the mere reason that these

private entities are engaged in benevolent charitable activi-

ties of concern to the public. Petitioners’ Brief pp. 14-15.

More incredibly, petitioners, apparently neither content

nor comfortable with such a forced construction of what

constitutes state action, ask this Court to rewrite the four-

teenth amendment by excising the word “State” to make

it “enforceable against private citizens, as well as against

states.” Petitioners’ Brief p. 15.

The petitioners’ iconoclastic assault on constitutional

doctrine cannot prevail.’ This Court consistently has re-

jected such overbroad claims of what constitutes a public

function as “read[ing] too much into the language of our

previous cases.” Flagg Bros., Inc., supra at 158; Hudgens

v. NLRB, 424 U.S. 507, 519 (1976); Lloyd v. Tanner,

7 As the Huff court also correctly pointed out, “if all private schools

were ‘the state’, the difficult problem of aid to parochial schools would

not exist,” citing Grossner, supra at 549 n. 19. Id. at 1150.

407 U.S. 551, 569 (1972) ; Central Hardware Co. v. NLRB,

407 U.S. 539, 547 (1972). Nor has this Court ever recog-

nized the argument that the fourteenth amendment is

enforceable against private conduct. In Griffin v. Breck-

enridge, 403 U.S. 88 (1971), cited by petitioners at p. 15

of their brief, this Court held that rights growing out of

the thirteenth amendment and other constitutional pro-

visions may be enforced against private parties. However,

it did not abandon the essential and basic constitutional

dichotomy, subsequently reaffirmed, between state and pri-

vate action for purposes of the fourteenth amendment.

Jackson, supra. As recently as this past term, Mr. Justice

Stevens, concurring in Great American Fed. S & L Assn.

v. Novotny, 47 USLW 4681 (June 11, 1979) reiterated

that Griffin instructs that: “The rights secured by the

Equal Protection and Due Process Clauses of the Four-

teenth Arhendment are rights to protection against unequal

treatment by the state, not by private parties.” Jd. at 4686.

St. Xavier High School is a private, parochial high school

and acted as such when it disciplined Mark Geraci. The

court below found no evidence that the State of Ohio was

involved in St. Xavier's disciplinary action against Mark

Geraci. This disciplinary action did not rise to the level

of “‘state action” and, thus, fourteenth amendment due

process considerations are not applicable.®

This is not to imply that standards of fairness are not

pertinent to this process. Pursuant to the laws of the State

8 Alternately, even if, hypothetically, St. Xavier did engage in “state

action” when it disciplined Mark Geraci, the ultimate inquiry in this

case is whether that action constituted a denial of due process. Flagg

Bros., Inc., supra at 455 n. 4. This Court recently has reiterated that

in public school disciplinary cases, as controlled by its opinion in Goss

v. Lopez, 419 U.S. 565 (1975):

14

of Ohio and the contract of enrollment between petitioners

and St. Xavier, the school has broad discretion in the exer-

cise of its disciplinary proceedings. Schoppelrei v. Franklin

University, 11 Ohio App. 2d 60, 228 N.E.2d 334 (1967) ;

Koblitz v. Western Reserve University, 11 Ohio Cir. Dec.

515, 21 Ohio C.C. 144 (1901). After a full hearing with

an opportunity to hear the evidence and observe the wit-

nesses the trial court found, without diffculty, that St.

Xavier had met that standard in its actions in response to

the misconduct of Mark Geraci. After a full review of

the entire record the state Court of Appeals concluded that

the St. Xavier administrators acted within their discretion,

pursuant to fundamentally fair procedures, and, indeed,

with “a genuine human concern” for Mark Geraci and his

father. Opinion of Court of Appeals, pg. 12a of Petitioners’

Brief, Appendix D. It follows, then, that this case involves

merely matters of state law and contract, which have been

passed upon by those courts, and does not involve a sub-

stantial constitutional question.®

All that Goss required was an “informal give-and-take” between

student and the administrative body dismissing him that would, at

least, give the student “the opportunity to characterize his conduct

and put it in what he deemed the proper context.”

Board of Curators of the University of Missouri v. Horowitz, 435 U.S.

78, 85-86 (1978). At bar, Mark Geraci and his father were each

provided three opportunities to present their case to St. Xavier officials

before the expulsion was finally affirmed. This process would have

been constitutionally sufficient under Goss and Horowitz even if St.

Xavier were a public high school, which it is not. Whiteside v. Kay,

446 F. Supp. 716 (W.D. La. 1978).

9 Petitioners as much as admit that their action does not involve a

constitutional question when, finally, they confirm on page 24 of their

Brief that “This case would not have arisen if any of the lesser penalties

[than Mark Geraci’s expulsion] had been chosen.” Despite their pro-

testations that they were denied constitutionally required process during

the disciplinary proceedings, in fact their grievance is not with this

process, which was found upon review by three courts to have been

15

CONCLUSION

Petitioners’ Petition for Writ of Certiorari should be

denied for the reasons set forth above.

Respectfully submitted,

WILLIAM L. BLUM

GARY D. BULLOCK

KENT W. SEIFRIED

DINSMORE, SHOHL, COATES

& DEUPREE

2100 Fountain Square Plaza

511 Walnut Street

Cincinnati, Ohio 45202

(513) 621-6747

Counsel for Respondents

fundamentally fair, but with the degree of the penalty imposed for

Mark Geraci’s misconduct. This penalty was imposed within the school’s

sound discretion, to maintain discipline and decorum, as permitted by

law and approved by the courts. Its degree does not raise a substantial

constitutional question, nor do the Petitioners assert that it does.

APPENDIX A

THE CINCINNATI ENQUIRER/Tuesday, June 12,1979 METRO TODAY/LOCAL/AREA NEWS D-3

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