# Opposition Brief — University of Pittsburgh v. Krynicky

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1905%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 1015

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1905%3A2. Public record. Not legal advice.