Before Swygert, McLAREN, and Will, District Judges.
The opinion of the court was delivered by: McLAREN, District Judge.
MEMORANDUM OPINION AND ORDER
This is a civil rights case in which students and a student
organization at the University of Illinois at Champaign,
Illinois, seek to have Ill.Rev.Stat. ch. 122, § 30-17, which
deals with the revocation of scholarship aid for misconduct,
declared unconstitutional and to have its enforcement enjoined.
The matter is now before this three-judge panel upon the
motions of several defendants.
Defendant Rudasill, apparently a private person otherwise
unconnected with the University of Illinois, allegedly
conducted a hearing and issued a report on the conduct of
certain plaintiff students at the request of defendant
Peltason, the Chancellor of the university. It is further
alleged that Rudasill's report recommended that Peltason
revoke the scholarship aid of those students pursuant to the
challenged statute. Rudasill moves to be dropped as a party
under Rule 21, Fed.R.Civ.P., on the ground that he is not
alleged to hold state office or employment. Because Rule 21
does not appear to be a proper basis for the dismissal of a
defendant on this ground, the motion will be treated as one
for failure to state a claim. The motion will be denied in
light of the cases which have held private persons acting in
concert with state officials to be within the coverage of
42 U.S.C. § 1983, which has been invoked here. See, e. g., Fulton
v. Emerson Elec. Co. 420 F.2d 527, 530 (5th Cir. 1969), cert.
denied, 398 U.S. 903, 90 S.Ct. 1689, 26 L.Ed.2d 61 (1970); cf.
United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16
L.Ed.2d 267 (1966).
The defendant employees and members of the state scholarship
commission and defendants Peltason and Rudasill have moved to
dismiss plaintiff Undergraduate Student Association
(hereinafter "UGSA") on several grounds. First, they contend
that UGSA lacks standing and capacity to sue because the
complaint alleges injury only to the rights of its individual
members. The courts have been increasingly willing to
recognize the right of organizations to sue on behalf of their
members. United Fed'n of Postal Clerks, AFL-CIO v. Watson, 133
U.S.App.D.C. 176, 409 F.2d 462, 469, cert. denied,
396 U.S. 902, 90 S.Ct. 212, 24 L.Ed.2d 178 (1969). E. g., Environmental
Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391,
428 F.2d 1093, 1097 (1970); Holloway v. Bristol Meyers Corp.,
327 F. Supp. 17, 23 (D.D.C. 1971); ACLU of Va. v. Radford College,
315 F. Supp. 893, 896 (W.D.Va. 1970). Some courts have held that
organizations have standing to represent their members'
interests even without any organization interest being
involved. Norwalk CORE v. Norwalk Redev. Agency, 395 F.2d 920,
937 n. 43 (2d Cir. 1968); Radford College, supra, while others
have required the organizations to allege that their interests
are affected as well. Alameda Conservation Ass'n v. California,
437 F.2d 1087, 1089, 1097 (9th Cir.), cert. denied,
402 U.S. 908,
91 S.Ct. 1380, 28 L.Ed.2d 649 (1971); Environmental Defense
Fund, supra; Wisconsin State Employees Ass'n v. Wisconsin
Natural Resources Bd., 298 F. Supp. 339, 344 (W.D.Wisc. 1969).
Although language in Sierra Club v. Morton, 405 U.S. 727, 92
S.Ct. 1361, 1367, 31 L.Ed.2d 636 (1972) seems to favor the
former position, this Court finds it unnecessary to resolve the
issue because, under the liberal standard of Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), we hold
that the complaint sufficiently alleges injury to UGSA's
interests. In the section describing the parties, the complaint
alleges that UGSA is a political organization whose activities
depend upon the ability of its members to exercise the
constitutional rights which the challenged statute purportedly
limits. We accordingly hold that UGSA has standing to represent
its members here. National Student Ass'n v. Hershey, 134
U.S.App.D.C. 56, 412 F.2d 1103, 1120 (1969); Smith v. Board of
Educ. of Morrilton Sch. Dist. 32, 365 F.2d 770, 777 (10th Cir.
1966); Wisconsin Student Ass'n v. Regents of Univ. of Wisc.,
318 F. Supp. 591, 593 (W.D.Wisc. 1970). As defendants recognize
in their brief, this holding also resolves the question of
capacity to sue under Rule 17(b), Fed.R. Civ.P., in UGSA's
Defendants' contention that UGSA lacks standing because it
is not a member of the class which it seeks to represent will
also be rejected. This is clearly untrue as to the purported
class composed of other organizations similarly situated. As
to its representation of its members, it would be absurd to
hold that an organization has standing in the constitutional
sense, but is barred by the technical requirements of Rule 23,
Fed. R.Civ.P. Norwalk, supra; Smith, supra.
UGSA also purports to represent all other students situated
similarly to its members. Because UGSA has not cited, and the
Court cannot find, any authority to support its representation
of non-member students, these allegations will be dismissed.
The defendant commission employees and members urge the
dismissal of plaintiffs Pierson and Wingate for lack of
standing to contest the validity of the statute because no
action has been taken against them under it as yet. This
contention fails to consider the fact that the requisite
showing of adversity is less stringent where, as in this case,
it is alleged that the mere existence of the statute has a
chilling effect on the exercise of rights guaranteed by the
First Amendment. Dombrowski v. Pfister, 380 U.S. 479, 487, 85
S.Ct. 1116, 14 L.Ed.2d 22 (1965); Muller v. Conlisk,
429 F.2d 901, 902-903 (7th Cir. 1970). These defendants also seek
dismissal of the case for failure to show the jurisdictional
amount in controversy. Although this action involves property
rights in that it will affect the rights of students to
continue to receive scholarship aid, it is primarily concerned
with their personal rights of freedom of speech and assembly.
The amount in controversy is therefore irrelevant. Spears v.
Robinson, 431 F.2d 1089, 1091 (8th Cir. 1970); Mini Cinema 16
Inc. v. Habhab, 326 F. Supp. 1162, 1164 (N.D.Iowa 1970).
Defendant State Scholarship Commission moves that it be
dismissed on the grounds that, as an agency of the State of
Illinois, it is immune from suit.
It is, of course, well established that suits to restrain
state officials and agencies from enforcing unconstitutional
statutes are not forbidden by the Eleventh Amendment. Griffin
v. County Sch. Bd., 377 U.S. 218, 228, 84 S.Ct. 1226, 12
L.Ed.2d 256 (1964). This is equally true where declaratory
relief is sought. Lee v. Board of Regents, 441 F.2d 1257, 1260
(7th Cir. 1971).
Plaintiffs also seek "damages, costs of suit and a
reasonable attorney's fee." To the extent that such
liabilities would have to be met from state funds, this Court
is deprived of jurisdiction by the Eleventh Amendment. Ford
Co. v. Department of Treasury, 323 U.S. 459, 463-64, 65 S.Ct.
347, 89 L.Ed. 389 (1945); Rothstein v. Wyman, 467 F.2d 226,
236 (2d Cir. 1972). The difficult question of whether
retroactive payments may be ordered as part of equitable
relief will be deferred until its decision becomes necessary
and the parties have more fully explored the law.
Certain defendants ask the Court to determine that this
action may not be maintained as a class action because of
plaintiff's failure to show that the requirements of Rule 23
have been met as to their respective classes. Rather than make
this determination now, the Court orders plaintiffs to brief
this issue and support their contentions with affidavits
within thirty days, with defendants' answers, and plaintiffs'
replies to be filed in compliance with Local General Rule
13(a), unless either side shall first file a motion for
summary judgment, in which case the class determination shall
be deferred until after the ruling on such motion.