Opposition Brief — University of Pittsburgh v. Krynicky

5) Office - Supreme Court, US.

* nme “MAR =28-1505

No. 84-1017

IN THE

UNIVERSITY OF PITTSBURGH, WESLEY W. POSVAR, PAUL

N. ROBINSON, RHOTEN A. SMITH, DONALD N.

HENDERSON and ROBERT NOSSEN,

Petitioners,

vs.

HARRY T. KRYNICKY, JR.,

Respondent.

TEMPLE UNIVERSITY,

Petitioner,

vs.

ROSEMARY SCHIER,

Respondent.

On PETITION For A Writ oF CERTIORARI! To THE UNITED

STraTes Court Or APPEALS For THE THIRD CIRCUIT.

RESPONDENTS’ BRIEF IN OPPOSITION

MICHAEL P. MALAKOFF, ESQ.*

ELLEN M. DOYLE, ESQ.

BERGER, KAPETAN, MALAKOFF & MEYERS, P.C.

508 Law & Finance Building

Pittsburgh. Pennsylvania 15219

(412) 281-4200

AMERICAN CIVIL LIBERTIES

FOUNDATION OF PENNSYLVANIA

Pittsburgh, Pennsylvania 15213

Counsel for Respondent-Plaintijfs Harry T.

Krynicky, Jr. and Rosemary Schier

* Counsel of Record

BEST AVAILABLE COPY |

i.

Statement of the Question Presented

Whether the Court Of Appeals For The Third Circuit

correctly held that universities integrated by statute into

the state’s higher education system and designated as

“‘instrumentalities’’ of the state are state actors within

the meaning of 42 U.S.C. §1983 and the Fourteenth

Amendment?

TABLE OF CONTENTS.

Page

Statement of the Question Presented ............. i

po I Ee errr wre ae ii

Se er PIS 6 oi Sakae occed vd ene Veanesanen iii

SS Tn SUD I gw ok vets soccueweseouen koa 2

Reasons for Denying the Writ ................... 4

A. The Court Of Appeals Applied Well

Established Law To Determine The Existence

Ce Wee ME 6 kas sheen sn cueenneeeeeen 4

B. The Court Of Appeals’ Decision Presents No

Conflict With Holdings Of Other Courts ...... 6

1. Cases Involving Other Universities....... 6

2. Cases Involving Other Statutory

NG 6 ec ccctvsatineesusenbans se ee 8

3. Cases Discussing Whether The State

Derived Profits From The Challenged Private

co rege pure see ol 9

4. Cases Involving State Subsidy

a PPP Te ree le 11

Pe rr es 12

iii.

Page

TABLE OF AUTHORITIES.

CASES:

Arlosoroff v. National Collegiate Athletic

Association, 746 F.2d 1019 (4th Cir. 1984)....... 11

Blouin v. Loyola University, 506 F.2d 20 (5th Cir.

re ee hehe won bv k's 6 bee eee #6 6

Blum v. Yaretsky, 457 U.S. 991 (1982)............ 5,9

Burton v. Wilmington Parking Authority, 365 U.S.

ES er re 4,5,8,9,11

Gerena v. Puerto Rico Legal Services, Inc., 697 F.2d

Err ra 9

Gilinsky v. Columbia University, 488 F.Supp. 1309

(1980), aff'd, 652 F.2d 53 (2d Cir. 1981).......... 7

Gomez v. North Dakota Rural Development Corp.,

704 F.2d 1056 (6th Cir. 1983).................. 9,10

Greene v. Johns Hopkins University, 469 F.Supp.

ee eee eee 7

Hicks v. Southern Maryland Health Systems

Agency, 737 F.2d 399 (4th Cir. 1984) ........... 9

Krynicky v. University of Pittsburgh, 742 F.2d

CR ES eer ee eee 2,4,5,10,11

Loh-Seng Yo v. Cibola General Hospital, 706 F.2d

CN ce Vb boos ee hacer eeees 11

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

(D.Mass. 1977), aff'd, 577 F.2d 720 (1st Cir. 1981),

cert. denied, 440 U.S. 924 (1979) ............... 7

Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922

DO ES ae 5,8

Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972).. 5

Murphy v. Villanova University, 547 F.Supp. 512

(E.D.Pa. 1982), aff'd, 707 F.2d 1402 (3d Cir. 1983) 6,7

Rendell-Baker v. Kohn, 457 U.S. 830 (1982)........ 5

iv.

Page

Rice v. President and Fellows of Harvard College,

663 F.2d 336 (1st Cir. 1981), cert. denied, 456 U.S.

rT ee Oe ere rere ee ere eae 6

Stewart v. New York University, 430 F.Supp. 1305

th | Serre Prone ee Sere sorte 7

Weise v. Syracuse University, 522 F.2d 397 (2d Cir.

WEE ck oc co oa ORCA ENR ae ees Cee a 6

STATUTES:

Communications Satellite System Act, Pub.L. 87-

624, Title III, $301, Aug. 31, 1962, 76 Stat. 423.. 8

Temple University-Commonwealth Act of November

30, 1965, P.L. 843, Pa. Stat. Ann. Tit. 24, §2510-2,

et seq.; University of Pittsburgh-Commonwealth

Act of July 28, 1966, P.L. 87, Pa. Stat. Ann. Tit.

OE ee, Oe OO on cs Fac saveve evens 2,3,7,8,10

National Rail Passenger Service Act, Pub.L. 95-421,

$11, Oct. 5, 1978, 92 Stat. 928, Pub.L. 97-35, Title

XI, $1188(a), Aug. 13, 1981, 95 Stat. 699........ 9

Rutgers, the state university law, 18 A:65-l et seq... 6

Se ee NS Key ca eke abe a wae eh easaun i,2,4,8

IN THE

Supreme Court of the United States

October Term, 1984

No. 84-1017

UNIVERSITY OF PITTSBURGH, WESLEY W.

POSVAR, PAUL N. ROBINSON, RHOTEN A.

SMITH, DONALD N. HENDERSON and ROBERT

NOSSEN,

Petitioners,

vs.

HARRY T. KRYNICKY, JR.,

Respondent.

TEMPLE UNIVERSITY,

Petitioner,

vs.

ROSEMARY SCHIER,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CouRT OF APPEALS FOR THE THIRD CIRCUIT.

RESPONDENTS’ BRIEF IN OPPOSITION

2

Statement of the Case

Two of the Pennsylvania state-related universities, The

University of Pittsburgh-Of the Commonwealth System

of Higher Education [‘‘Pitt’’], and Temple University-Of

the Commonwealth System of Higher Education

[‘‘Temple’’] [hereafter ‘‘the Universities’’], are seeking

review of the decision of the Court of Appeals for the

Third Circuit which held that, in light of Pennsylvania's

statutory scheme which incorporated Pitt and Temple

into the state system of higher education, the

Universities are state actors for purposes of 42 U.S.C.

§1983.' The Court of Appeals’ opinion is reported in

Krynicky v. University of Pittsburgh, 742 F.2d 94 (3d

Cir. 1984).

The Universities erronecusly argue that this case

involves a finding of state action by two purely private

institutions ‘‘which receive some state aid” (Petition pp.

1, 2) despite the clear statement by the Court of Appeals

that the basis of its decision was not the substantial

state aid which the Universities received’ but rather the

unusual total statutory intermingling of the state and

the formerly private Universities. Krynicky, 742 F.2d at

101-103.

‘Temple University-Commonwealth Act of November 30, 1965, P.L.

843, Pa. Stat. Ann. Tit. 24, §2510-2; University of Pittsburgh-

Commonwealth Act of July 28, 1966, P.L. 87, Pa. Stat. Ann. Tit. 24,

§2510-202. As the Court of Appeals in Krynicky noted these two

statutes are ‘‘virtually identical’, 742 F.2d at 99.

* For example, for the fiscal year July, 1982 through June, 1983, the

General Assembly appropriated $78,235,000 to the University of

Pittsburgh. 742 F.2d at 102.

3

The Temple University-Commonwealth Act in

recognizing the University as ‘‘state-related’’ and in

designating Temple as an ‘‘instrumentality”’ of the state

provides:

That the Commonwealth of Pennsylvania

recognizes Temple University as an integral part of

a system of higher education in Pennsylvania, and

that it is desirable and in the public interest to

perpetuate and extend the relationship between the

Commonwealth of Pennsylvania and Temple

University for the purpose of improving and

strengthening higher education by designating

Temple University as a State-related university:

Therefore, it is hereby declared to be the purpese

of this act to extend Commonwealth opportunities

for higher education by establishing Temple

University as an_ instrumentality of the

Commonwealth to serve as a_ State-related

institution in the Commonwealth system of higher

education. (Emphasis added) Pa. Stat. Ann. Tit. 24,

§2510-2.

The statutory language with respect to Pitt s

identical, Pa. Stat. Ann. Tit. 24, §2510-202.

This Brief will address the reasons why under Rule 17

this Court should decline to review the Court of Appeals’

application of well-settled law concerning the

determination of state action in those institutions which

are included within Pennsylvania’s unique statutory

scheme designating certain universities as ‘‘state-

related”’ and state “‘instrumentalities’’.

4

REASONS FOR DENYING THE WRIT

A. The Court Of Appeals Applied Well Established

Law To Determine The Existence Of ‘‘State Action’’.

The standard for determining the existence of “State

action”’ has been established by this Court in a number

of opinions and was properly applied by the Court of

Appeals in this case

That standard as set forth by the Universities in their

Petition is as follows:

“The ‘ultimate issue’ in determining whether state

action exists is whether the alleged infringement of

federal rights is ‘jointly attributable to the State.’

Lugar, 457 U.S. at 937” (Petition p. 10).

This is precisely the same legal standard applied by

the Court of Appeals in its determination that the

Universities were state actors for purposes of $1983:

“The fifth and fourteenth amendments protect

individuals only from governmental action. In order

for Krynicky or Schier to benefit from these

constitutional protections, they must show that the

alleged violations of due process and freedom of

speech are ‘fairly attributable to the state.’ Lugar v.

Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102

S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982).”’ 742 F.2d

at 97.

The Universities are simply dissatisfied with the Court

of Appeals’ application of this Court’s prior state action

decisions to the particular facts in this case.

Because this Court has consistently reeognized the

continuing viability of the symbiotic relationship test for

state action established in Burton v. Wilmington Parking

Authority, 365 U.S. 715 (1961), the Universities without

‘

5

any attempt to analyze Burton have stated that it has no

“precedential value’ to this case (Petition, p. 14, n. 7).

With reference to the continuing viability of Burton, in

Lugar vs. Edmondson Oil Co., Inc., 457 U.S. 922

(1982) this Court noted that in Moose Lodge No. 107 v.

Irvis, 407 U.S. 163 (1972), Burton was distinguished, 457

U.S. at 938, n. 19. In Rendell-Baker v. Kohn, 457

U.S. 830 (1982) this Court explicitly found no symbiotic

relationship, Jd. at 842 (1982). Finally, in Blum uv.

Yaretsky, 457 U.S. 991 (1982} this Court indicated that

funding and regulation alone do not give rise to Burton

liability. Jd. at 1011. The holding and rationale of Burton

therefore remains intact.

Petitioners also claim that the Court of Appeals

“declined to acknowledge the impact of Blum, Rendell-

Baker and Polk County [454 U.S. 312 (1981)] on its state

action analysis” (Petition p. 14). To the contrary after

consideration of the unusual statutory entwinement of

the Commonwealth and the Universities, the Court of

Appeals determined that the state action fact pattern

most analogous to the facts presented was in Burton:

“The Commonwealth’s interrelationship with Pitt

and Temple in these cases is more closely analogous

to the complete interminging of state private actions

found in Burton than to the relatively minimal

interrelationship between the State and _ the

defendants in Blum and Rendell-Baker.”’ 742 F.2d at

101.

Thus, there is no conflict as alleged by the

Universities, between the law as established by this

Court and the law applied by the Court of Appeals.

6

B. The Court Of Appeals’ Decision Presents No

Conflict With Holdings Of Other Courts.

Contrary to the assertion of the Universities (Petition

at pp. 7-8) the decision of the Court of Appeals for the

Third Circuit is consistent with the decisions of other

Courts of Appeals. There is no conflict on the actual

issue presented here. The Universities’ reliance on cases

involving other universities, other statutory schemes,

and private entities which are merely subsidized or

regulated are misplaced. Those cases are clearly

distinguishable on their facts from the state related

university scheme reviewed by the Court of Appeals in

this case.

1. Cases Involving Other Universities.

The decision below rested on the Court's careful

analysis of the Pennsylvania statutory scheme for the

State-related Universities. The Universities have not

identified and the Plaintiff-Respondents are unaware of

any similar state higher education system in the United

States. The closest analogy may be the designation of a

formerly private institution Rutgers University as the

State University of New Jersey. See Rutgers, the state

university law, 18 A:65-1 et seq.

All of the cases cited by the Universities in their

Petition at p. 8 involved purely private institutions

which were not incorporated into their states’ higher

education system by any statutory scheme. See Rice v.

President and Fellows of Harvard College, 663 F.2d 336

(1st Cir. 1981), cert. denied, 456 U.S. 928 (1982); Weise v.

Syracuse University, 522 F.2d 397 (2d Cir. 1975); Blouin

v. Loyola University, 506 F.2d 20 (5th Cir. 1975);

Murphy v. Villanova University, 547 F.Supp. 512

7

(E.D.Pa. 1982), aff'd, 707 F.2d 1402 (3d Cir. 1983);

Gilinsky v. Columbia University, 488 F.Supp. 1309

(1980), aff'd, 652 F.2d 53 (2d Cir. 1981); Greene v. Johns

Hopkins University, 469 F.Supp. 187 (D.Md. 1979);

Stewart v. New York University, 430 F.Supp. 1305

(S.D.N.Y. 1976) and Lorentzen v. Boston College, 440

F.Supp. 464 (D.Mass. 1977), aff'd, 577 F.2d 720 (1st Cir.

1981), cert. denied, 440 U.S. 924 (1979).

None of the above-listed private universities was state-

related,’ or had a special statutory relationship,‘ as here,

to the state in which it was located.

The Universities are in error when they claim a conflict

between the decisions in those cases and the decision of

the Court of Appeals here because there is a substantial

factual difference between purely private institutions

which receive state funding or are merely incorporated

under state law and state related universities which bear

the name and imprimatur of state designated

instrumentalities.

* Pennsylvania students at the state-related universities receive the

benefit of reduced tuition and fees because the Commonwealth may

set tuition and fee schedules for Pennsylvania students in the annual

appropriation act, Pa. Stat. Ann. Tit. 24, §2510-6 and §2510-206.

‘One third of the University’s trustees are selected by the

Commonwealth, Pa. Stat. Ann. Tit. 24, §2510-4(d) and §2510-204(b).

The Chancellor of the University must file annually a report of all

University activities “instructional, administrative and financial’’

with the Board of Trustees who are obligated to submit the report to

the Governor and members of the General Assembly of Pennsylvania.

Pa. Stat. Ann. Tit. 24, §2510-10 and §2510-210.

8

2. Cases Involving Other Statutory Schemes.

The decision of the Court of Appeals for the Third

Circuit properly considered the specific statutory scheme

before it and did not, as claimed by the Universities,

“transform ail the decisions of entities whose

governmental relationship is set forth by statute into

government action.” (Petition p. 9). The decision of the

Court of Appeals was limited to the facts before it and

did not establish a legal principle which would render

any entity created by statute as a state actor for

purposes of $1983.

This Court has consistently recognized the fact based

nature of the state action analysis to be applied by the

lower courts. Burton v. Wilmington Parking Authority,

365 U.S. 715, 72Z (1961) and Lugar v. Edmondson Oil

Co., Inc., 457 U.S. 922, 939 (1982).

There is a clear factual difference between the

Pennsylvania statutes which designated the Universities

as “‘state-related” and as ‘“‘instrumentalities’’ of the

state, Pa. Stat. Ann. Tit. 24, §2510-2, §2510-202 and the

federal statutory schemes cited by the Universities. The

Universities are simply wrong when they rely on two

federal statutory schemes which are completely unrelated

to the state educational scheme considered by the Court

of Appeals here and claim that applying the same

rationale ‘‘federal action would be present in all decisions

of the Communications Satellite Corporation or the

National Rail Passenger Corporation.” (Petition p. 9).

The Communications Satellite System Act created:

“a communications satellite corporation for profit

which will not be an agency or establishment of the

United States Government.’ Pub.L. 87-624, Title

III, $301, Aug. 31, 1962, 76 Stat. 423.

9

Similarly in the National Rail Passenger Service Act,

1970, Congress created a ‘for profit corporation’ which

was expressly not “an agency or establishment of the

United States, Pub.L. 95-421 §11, Oct. 5, 1978, 92 Stat.

928, Pub.L. 97-35, Title XI, $1188(a), Aug. 13, 1981,

95 Stat. 699.

The law to be applied to state statutory schemes has

been established by decisions in this Court. The

application of that law to different statutory schemes

and in different factual settings obviously differs from

case to case. Here the law of this Court was correctly

applied. Moreover, the application of this Court’s well

settled legal principles to the plethora of different factual

circumstances where state action is alleged is more

appropriately the endeavor of a Court of Appeals.

3. Cases Discussing Whether The State Derived Profits

From The Challenged Private Activity.

The Universities argue that three Courts of Appeals

have limited the symbiotic relationship analysis set forth

in Burton v. Wilmington Parking Authority, 365 U.S.

715 (1961) to situations where the state financially

benefitted from the challenged activity, Hicks v.

Southern Maryland Health Systems Agency, 737 F.2d

399, 402 (4th Cir. 1984) (private non-profit health

services agency); Gomez v. North Dakota Rural

Development Corp., 704 F.2d 1056, 1059 (8th Cir. 1983)

(private non-profit public services organization); and

Gerena v. Puerto Rico Legal Services, Inc., 697 F.2d 447,

451 (1st Cir. 1983) (private non-profit legal services

corporation) (Petition p. 17). These cases merely follow

Blum v. Yaretsky, 457 U.S. 991 (1982) and hold that

government funding and regulation are not sufficient in

10

and of themselves to render the conduct of private

entities state action. See, e.g., Gomez v. North Dakota

Rural Development Corp. where the Court stated:

“{Ajpart from its interest in seeing that a federal

grant is actually used for its intended purpose, the

government has no vested interest in the success or

even the continued existence of any particular

community agency.” Id. at 1059.

While it is the nature, quality and duration of the

commitment undertaken by the state on behalf of the

private entity rather than whether the undertaking is

profitable or costly which determines whether their joint

enterprise is subject to constitutional limitations, the

Court of Appeals here did find that by designating the

Universities as State-related, the Commonwealth

actually spent less (i.e., it profited from the relationship)

than it would have spent had it constructed new schools:

“As the existing state educational institutions were

insufficient to satisfy the public demand, and

because the creation of new state universities would

have been extremely expensive, the decision was

made to incorporate established, but financially

ailing private institutions into the Commonwealth

system of higher education. The state thus was able

to satisfy the educational needs of its citizens at a

cost considerably lower than would have been

entailed by the creation of wholly new institutions.”

742 F.2d at 101, n. 9.

Therefore, although profitability is not a prerequisite

for a symbiotic relationship, it is apparent that the state

here realized a financial benefit’ from the incorporation of

* Besides requiring annual appropriations to the Universities, Pa.

Stat. Ann. Tit. 24, §2510-7 and §2510-207, the statutes entitle the

Universities to benefit from all Commonwealth programs for capital

development, Pa. Stat. Ann. Tit. 24, §2510-8 and §2510-208 and

create a state tax exemption for income derived from bonds issued by

the Universities and loans secured by their mortgages, Pa. Stat. Ann.

Tit. 24, §2510-9 and §2510-209.

|

11

the Universities into the State-related higher education

system, just as in Burton the State and the Eagle Coffee

Shop ‘‘conferred mutual benefits on each other because

of their location.’’ 742 F.2d at 101.

There is no conflict between the Court of Appeals here

and other Courts of Appeals.

4. Cases Involving State Subsidy And Regulation.

The Universities claim a conflict between the Court of

Appeals decision and the holdings in Loh-Seng Yo v.

Cibola General Hospital, 706 F.2d 306 (10th Cir. 1983)

and Arlosoroff vu. National Collegiate Athletic

Association, 746 F.2d 1019 (4th Cir. 1984) (Petition p.

18). Both of those decisions stand for the proposition

that subsidy and regulation do not make private corduct

state action. That principle was also recognized by the

Court of Appeals in this case when it stated:

“Temple and Pitt are not merely ‘private

contractors performing services for the government,’

Rendell-Baker, 457 U.S. at 843, 102 S.Ct. at 2772;

they not only receive funding and are subject to

routine state regulations, but are instrumentalities

of the state, both in name and in fact.’’ 742 F.2d at

103.

This Court has established legal standards for

determining whether or not state action exists in a

particular factual setting. The Court of Appeals for the

Third Circuit articulated and applied this Court’s legal

standards consistent with the precedents in this Court

and the decisions of the other Courts of Appeals.

12

Conclusion

For all of the reasons stated above certiorari should be

denied.

Respectfully submitted,

MICHAEL P. MALAKOFF

ELLEN M. DOYLE

BERGER, KAPETAN, MALAKOFF

& MEYERS, P.C.

508 Law & Finance Building

Pittsburgh, Pennsylvania 15219

(412) 281-4200

AMERICAN CIVIL LIBERTIES

FOUNDATION OF PENNSYLVANIA

Attorneys for the Respondent-Plaintiffs

Harry T. Krynicky, Jr. and

Rosemary Schier

March 14, 1985

13

Certificate of Service

I hereby certify that on the 14th day of March, 1985,

true

and exact copies of the foregoing Respondents’

Brief In Opposition were served by placing in the mail,

postage prepaid, first class mail, addressed to:

x

**

**

**

**

James J. Restivo, Jr., Esq.

REED, SMITH, SHAW & McCLAY

747 Two Mellon Bank Center

Pittsburgh, Pennsylvania 15219

Robert J. Reinstein, Esq.

Temple University

Philadelphia, Pennsylvania 19122

Mary D. Colins, Esq.

237 Fitzwater Street

Philadelphia, Pennsylvania 19147

David F. Megnin, Esq.

201 South McKean Street

Kittanning, Pennsylvania 16201

Marcel L. Groen, Esq.

1950 Street Road

Suite 100

Bensalem, Pennsylvania 19020

Charles S. Sims, Esq.

American Civil Liberties Union Foundation

132 West 43rd Street

New York, New York 10036

ELLEN M. DOYLE

* Defendants’ attorneys

** Courtesy copies