United States District Court, Northern District of Illinois, E.D
October 29, 1974
HELEN A. COHEN, PLAINTIFF,
ILLINOIS INSTITUTE OF TECHNOLOGY, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: McMILLEN, District Judge.
Defendants have filed a motion to dismiss the complaint for
failure to state a claim. The complaint alleges in substance
that the plaintiff was deprived of tenure and pay as an
associate professor because of her sex, in violation of her
rights under the Fourteenth Amendment to the Constitution of
the United States. The complaint is in three counts, Count I
for damages and other relief under 42 U.S.C. § 1983, Count II
for damages and other relief under 42 U.S.C. § 1985(3), and
Count III as a pendent claim for damages and other relief under
the Illinois Constitution of 1970. We find and conclude that
the defendants' motion should be granted.
The complaint does not allege the equivalent of state action
within the meaning of § 1983, as applied in Burton v.
Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6
L.Ed.2d 45 (1961). Plaintiff alleges that the following
circumstances in effect make I.I.T. the alter ego of the State
of Illinois (par. 8 of the Complaint):
(a) I.I.T. is organized under an Illinois statute
which directs the Superintendent of Public
Instruction to issue and revoke its certificate
to operate in the State.
No doubt this same regulatory duty is required of the
Superintendent with respect to all private educational
institutions in Illinois, but it does not follow from this
that such institutions are thereafter engaging in state
actions in everything which they do.
Furthermore, in this particular case, the several
requirements allegedly imposed by the Superintendent of Public
Instruction as a condition for a certificate do not concern
the hiring or tenure of teachers. Therefore it cannot be said
that the State of Illinois controls or is responsible for the
actions of I.I.T. toward the plaintiff within the meaning of
Burton v. Wilmington Parking Authority, supra.
(b) By its name, the Institute implies that it is
part of the University system of the State of
Illinois. This alleged implication certainly does
not make I.I.T. an agency of the State.
(c) The Superintendent of Public Instruction has
delegated the accreditation of curricula and
faculties to the North Central Association of
Colleges and Secondary Schools, which thereupon
accredits I.I.T. This allegation adds nothing to
support subparagraph (a), above, except possibly
to raise the question of the lack of a necessary
(d) I.I.T. (not the State of Illinois) requires a
State of Illinois Teacher's
Certificate in order for a student to participate
in certain of its academic programs.
(e) The State of Illinois "controls" certain
undergraduate programs at I.I.T., including some
in plaintiff's department, as a condition for
training and certifying secondary school
(f) The State of Illinois "controls" certain
other programs at I.I.T. which lead to a degree
of Bachelor of Science.
(g) The State of Illinois (and the City of
Chicago) control certain undergraduate programs
for training and certification of secondary
(h) Graduate students at I.I.T. participate in
mental health internships with various state
agencies of the State of Illinois as part of
their academic training.
(i) I.I.T. conducts seminars in cooperation with
the State of Illinois (although this is not
alleged to involve the plaintiff's department).
(j) At least one program at I.I.T. is established
to conform to the requirements of psychological
internship in the public schools of Illinois in
order to meet the State requirements for
certification as a school psychologist.
(k) Certain courses at I.I.T. conform to the
entrance requirements of some of the graduate
schools of the University of Illinois.
(l) I.I.T. conducts programs for the State of
Illinois' certified teachers.
(m) I.I.T. administers the State Scholarship
Program and other State financial aids to
(n) I.I.T. "solicits" the power of eminent domain
for the acquisition of real property.
We assume that plaintiff could prove all of these
allegations. It is obvious from the foregoing summarization
that I.I.T. cooperates with the State of Illinois and is
dependent upon its approval in many respects. This does not
make it a State institution or agency with respect to the
tenure and salary of its academic staff, however. In fact,
plaintiff does not allege State involvement in any of the
personnel practices complained of. In Moose Lodge No. 107 v.
Irvis, 407 U.S. 163
at p. 173, 92 S.Ct. 1965, at p. 1971, 32
L.Ed.2d 627 (1972), the court said:
The Court has never held . . . that
discrimination by an otherwise private entity
would be violative of the Equal Protection Clause
if the private entity receives any sort of
benefit or service at all from the State, or if
it is subject to state regulation in any degree
whatever. Since state-furnished services included
such necessities of life as electricity, water,
and police and fire protection, such a holding
would utterly emasculate the distinction between
private as distinguished from state conduct set
forth in The Civil Rights Cases . . ., and
adhered to in subsequent decisions. Our holdings
indicate that where the impetus for the
discrimination is private, the State must have
"significantly involved itself with invidious
discriminations," Reitman v. Mulkey,
387 U.S. 369, 380 [87 S.Ct. 1627, 18 L.Ed.2d 830] (1967),
in order for the discriminatory action to fall
within the ambit of the constitutional
The Seventh Circuit has taken an equally restrictive view of
this jurisdictional limit of § 1983 in Doe v. Bellin Memorial
Hospital, 479 F.2d 756
(7th Cir. 1973).
A case similar to the one at bar is Furumoto et al. v. Lyman
et al., 362 F. Supp. 1267 (N.D.Cal., 1973). In dismissing the
§ 1983 complaint against the president of Stanford University
and others, the court summarized its reasons at pages
1278-1279, as follows:
A finding of general state action here would
require more than an accumulation of the state
benefits or regulations cited by plaintiffs.
These factors do not establish state control or
the inherently governmental nature of the
university. Plaintiffs have not demonstrated that
Stanford is controlled by the State of California
or that Stanford does not have a substantial
sphere of private, independent authority and
initiative. The State's grant to Stanford of
corporate powers and privileges is not evidence
of State control. The State has thus merely given
Stanford substantially the same corporate powers
and privileges given to any corporation formed
under its laws . . . . Nor can plaintiffs find
support in the power granted Stanford by
legislation to charge tuition to California
residents. California Educational Code §
30021. . . . The tax exemptions granted to Stanford
extend also to many other nonprofit-making
institutions . . . . These exemptions and the power
of eminent domain are indeed benefits accorded
Stanford by the State, but the legislature is
thereby promoting what it views to be the public
interest in the existence of private educational
institutions. Even if the State directly subsidized
the University, this financial aid would not
necessitate a finding of State control.
With the corporate defendant out of the case, the
allegations of Count I against the individual defendants
amount to nothing more than that they "knew or should of
known" of certain allegedly discriminatory acts against the
plaintiff. The individual defendants were officers or
directors of the corporate defendant but are not alleged to
have controlled it or to have personally committed acts of
discrimination, except in conclusory and vague terms (pars.
13, 14 and 15 of the complaint). Allegations of this sort are
not deemed to be true for the purpose of this motion, and the
plaintiff must point her finger more directly toward the
individuals responsible for the acts of alleged discrimination
before she can require them to defend. Cf. Adams v. Pate,
445 F.2d 105
(7th Cir. 1971).
Count II must fall for much the same reason. Under the
controlling decision of Dombrowski v. Dowling, 459 F.2d 190
(7th Cir. 1972) the court held that § 1985(3) requires (a)
"state action" and (b) a conspiracy by two or more separate
individuals, as distinguished from the "collective judgment of
two or more executives of the same firm" (459 F.2d at p. 196).
The allegations of Count II fail to satisfy both of these
requirements. Not only is the element of state involvement
lacking, as discussed above under Count I, but also the
challenged conduct is essentially the act of a single entity.
Count III, being pendent, must fall with the other two.
United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16
L.Ed.2d 218 (1966).
We are well aware of the general policy of the Federal
courts not to dismiss a complaint if the plaintiff could
possibly prove some set of facts under the pleadings which
would entitle her to relief. Burns v. Paddock, 503 F.2d 18
(7th Cir. 1974). However, she must first allege these facts or
at least a foundation for proving them and not rely upon the
Court or the defendants to speculate concerning what she might
be able to prove. She has a right to try to allege a cause of
action by amendment, but the facts and conclusions which she
has chosen as a basis for her present complaint are
insufficient to put any of the defendants to a trial.
It is therefore ordered, adjudged and decreed that the
motion of the defendants to dismiss the complaint is granted.
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