United States District Court, Northern District of Illinois, E.D
February 20, 1981
PAUL YAKIN, PLAINTIFF,
THE UNIVERSITY OF ILLINOIS, CHICAGO CIRCLE CAMPUS, DR. RICHARD JOHNSON, DR. JAN ROCEK, DR. ROGER DOMINOWSKI, DR. I.E. FABER, DR. LEONARD ERON, DR. MICHAEL LEVINE, DR. PHILLIP ASH, DR. BENJAMIN KLEINMUNTZ, DR. JUDITH TORNEY, DR. MERWYN GARBARINO, BUDD H. BOWEN, INDIVIDUALLY AND/OR AS AGENTS OF THE UNIVERSITY OF ILLINOIS, DEFENDANTS.
The opinion of the court was delivered by: Flaum, District Judge:
This matter comes before the court on the motion of defendants
Board of Trustees of the University of Illinois, Dr. Richard
Johnson, Dr. Roger Dominowski, Dr. I.E. Farber, Dr. Leonard Eron,
Dr. Michael Levine, Dr. Phillip Ash, Dr. Benjamin Kleinmuntz, Dr.
Judith Torney, and Dr. Merwyn Garbarino to dismiss counts II and
IV of the complaint. For the reasons set forth below, the motion
Count II alleges, inter alia, the following. In the Fall of
1974 plaintiff was selected to participate in the PhD program in
psychology at the University of Illinois, Circle Campus (the
"University"), which receives federal financial assistance.
Plaintiff, a Mexican-American, was admitted through the Graduate
Educational Opportunity Program (the "GEO Program"), an
affirmative action program at the University. Each spring the
entire faculty of the Department of Psychology (the "Department")
evaluates the progress of its students.
In May of 1975 a majority of the Department's faculty voted to
terminate plaintiff's participation in the PhD program.
Plaintiff's advisor felt that plaintiff had been judged as a
regular student rather than a GEO Program student and helped
plaintiff draft two petitions for reconsideration of his
termination. His appeal was granted and plaintiff was given two
quarters to prepare for the PhD preliminary examination.
Plaintiff wrote on a topic suggested by his advisor.
On or about April 25, 1976 a five member faculty committee
agreed that plaintiff had failed the examination and recommended
that he not be given a second chance to take it, as permitted
upon recommendation of that committee. In May of 1976 the
Department's faculty voted to terminate plaintiff from the PhD
program, thereby denying his appeal to repeat the examination on
a topic with which he was more familiar.
On or about September 22, 1976 plaintiff filed a grievance with
the dean of the graduate college, Dr. Jan Rocek ("Rocek"),
alleging discrimination on the basis of national origin. At a
meeting held on or about October 6, 1976, at which plaintiff,
Rocek, members of the Department's faculty and a member of the
Educational Assistance Program were present, Rocek recommended
that the Department's faculty reconsider its denial of a second
examination. However, the Department's faculty reaffirmed its
initial decision. On or about October 12, 1976 Rocek established
a hearing panel which found that there was no evidence of
discrimination and that plaintiff should be terminated without an
opportunity to repeat the examination. On or about November 30,
1976 Rocek affirmed the hearing panel's findings.
On or about December 6, 1976 plaintiff appealed Rocek's
decision and on or about January 31, 1977 the Associate
Chancellor established a panel to conduct a de novo review. On
June 20, 1977 the Associate Chancellor stated that the
Department's faculty had not discriminated against plaintiff and
that the standards of the GEO Program had been properly applied.
On or about June 23, 1977 plaintiff appealed to the Chancellor
on the grounds of "improper procedure." This appeal was denied
July 7, 1977. Plaintiff subsequently was terminated from the PhD
Equal Opportunity Specialist Bud Bowen ("Bowen") conducted an
investigation of the grievance filed by plaintiff. In his report
Bowen concluded that there was evidence that students may have
been treated unfairly and that the Department's criteria were
vague and subjective; that plaintiff had failed to measure
favorably against "established comparative performance criteria
of the department"; that prior to the 1976-77 academic year, the
sole written criteria for students was that they maintain a
minimum 4.00 grade point average; that prior to the 1976
termination decision, plaintiff had a 4.15 grade point average;
and that the faculty applied other nonwritten criteria. Thus,
plaintiff contends in count II that defendants acted arbitrarily,
capriciously and without rational basis, due solely to
plaintiff's national origin, in violation of title VI, 42 U.S.C. § 2000d
— 2000d — 4.
Count IV also alleges, inter alia, the following. The "Program
for Graduate Educational Opportunity," a document of the
Department, states that the Department is committed to a
long-range program implemented by the GEO Program for
disadvantaged segments of society, including Mexican Americans;
that if a student admitted to the GEO Program has a deficiency
that cannot be corrected through summer school, the student's
program will be organized to result in the least delay in degree
progress; and that
The faculty generally take into account the needs
and goals of individual students in considering
program adjustments. If special program needs exist
for students admitted under the program for graduate
educational opportunity, these needs will be
considered as valid reasons for program adjustments
or delay in progress. Course requirements, schedule
guidelines and other program requirements will be
administered in a flexible manner.
Thus, plaintiff contends that this document created a contract
between the University and/or its departments and/or programs and
plaintiff and that the University, the Department and/or the GEO
Program breached this contract by not extending any of the
services expressly offered to plaintiff.
Defendants move to dismiss count II because plaintiff lacks
standing to sue and has failed to plead exhaustion of
administrative remedies and to dismiss count IV because plaintiff
has failed to plead the elements of a contract. The court does
Defendants' standing argument with respect to count II has two
prongs. Defendants contend first that only a recipient of federal
financial assistance or the beneficiary of any program or
activity receiving such assistance can be a plaintiff and second
that there is no private right of action under title VI.
Section 601 of title VI of the Civil Rights Act of 1964,
42 U.S.C. § 2000d,*fn1 prohibits discrimination on the basis of race,
color or national origin by a recipient of federal funds against
the participants in (or beneficiaries of) any program or activity
receiving federal financial assistance conducted by the
recipient. EEOC v. Southwestern Baptist Theological Seminary,
485 F. Supp. 255, 261 (N.D.Tex. 1980). The amended complaint alleges
that the University receives federal financial assistance and
that the University and/or its agents have violated rights
secured by title VI. Since the Department and the GEO Program are
part of the University, it does not matter whether the
University, the Department or the GEO Program receives the
federal financial assistance. See Bob Jones University v.
Johnson, 396 F. Supp. 597, 601-604 (D.S.C. 1974), aff'd,
529 F.2d 514 (4th Cir. 1975). Thus, count II cannot be dismissed on the
ground that neither the Department, the GEO Program nor plaintiff
receive federal financial assistance directly.
Title VI does not expressly authorize a private right of action
by a person injured by a violation of section 601. Implicit in
decisions of the Supreme Court is the assumption that title VI
creates a private right of action for the victims of illegal
discrimination. Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538,
47 L.Ed.2d 792 (1976); Lau v. Nichols, 414 U.S. 563, 94 S.Ct.
786, 39 L.Ed.2d 1 (1974). Since neither the Supreme Court nor the
Seventh Circuit have decided whether a private cause of action is
implied under title VI, the court will address that issue next.
Any discussion of whether a private cause of action is implied
under a statute must begin with the factors identified in Cort v.
Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975):
In determining whether a private remedy is implicit
in a statute not expressly providing one, several
factors are relevant. First, is the plaintiff "one of
the class for whose especial benefit the statute was
enacted, . . . — that is, does the statute create a
federal right in favor of the plaintiff? Second, is
there any indication of legislative intent, explicit
or implicit, either to create such a remedy or to
deny one? . . . Third, is it consistent with the
underlying purposes of the legislative scheme to
imply such a remedy for the plaintiff? . . . And
finally, is the cause of action one traditionally
relegated to state law, in an area basically the
concern of the States, so that it would be
inappropriate to infer a cause of action based solely
on federal law?
The Supreme Court has decided that each of these factors is not
entitled to equal weight and has indicated that in appropriate
cases it is necessary to consider only the first two or three
factors. Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99
S.Ct. 2479, 2489, 61 L.Ed.2d 82 (1979); Davis v. Ball Memorial
Hospital Ass'n, No. 80-1209, slip op. at 28, 640 F.2d 30 at 44
(7th Cir. Oct. 3, 1980).
The first question, whether the statute was enacted for the
benefit of a special class of which plaintiff is a member, is
answered by looking to the language of the statute itself. Cannon
v. University of Chicago, 441 U.S. 677, 689, 99 S.Ct. 1946, 1953,
60 L.Ed.2d 560 (1979). Language in the statute which expressly
identifies the class Congress intended to benefit and which
confers a right directly on a class of persons that includes the
plaintiff or creates a duty in favor of the plaintiff is
generally the most accurate indicator of the propriety of
implication of a cause of action. Id. at 690 & n. 13, 99 S.Ct. at
1954 & n. 13; Simpson v. Reynolds Metals Co., Inc.,
629 F.2d 1226, 1239 (7th Cir. 1980). The language in title VI expressly
identifies the class Congress intended to benefit — persons
discriminated against on the basis of race, color or national
origin — and explicitly confers a benefit on such a class of
which plaintiff is a member. Simpson v. Reynolds Metals Co.,
Inc., 629 F.2d at 1240. Therefore, the first of the four factors
identified in Cort v. Ash favors the implication of a private
cause of action.
The second question, whether there is any indication of
legislative intent either to create such a remedy or to deny one,
requires consideration of legislative history. Cannon v.
University of Chicago, 441 U.S. at 694, 99 S.Ct. at 1956. Where
it is clear that federal law has granted a class of persons
certain rights, it is not necessary to show an intention to
create a private cause of action, although an explicit purpose to
deny such cause of action would be controlling. Cort v. Ash, 422
U.S. at 82, 95 S.Ct. at 2089. As originally introduced, title VI
was phrased as a directive to federal agencies engaged in the
disbursement of public funds.*fn2 Cannon v. University of Chicago,
441 U.S. at 693-694 n. 14, 99 S.Ct. at 1955-1956 n. 14. However,
after Senators Keating and Ribicoff raised objections to the bill
on the ground that it did not expressly authorize a private
remedy for a person against whom discrimination had been
practiced, the Department of Justice submitted a revised bill
which contained the language now found in section 601. Id.
Furthermore, judges, executive officials, litigants and their
counsel repeatedly have assumed that title VI creates a private
right of action for the victims of illegal discrimination and the
absence of legislative action to change that assumption provides
further evidence that Congress at least acquiesces in, and
apparently affirms, that assumption. Id. at 702-703, 99 S.Ct. at
1960-1961; Davis v. Ball Memorial Hospital Ass'n, at 46. The
Supreme Court has frequently accepted a history of federal court
recognition of a cause of action as indicative of the propriety
of its implication. Cannon v. University of Chicago, 441 U.S. at
706 n. 40, 99 S.Ct. at 1962 n. 40. Therefore, the second of the
four factors identified in Cort v. Ash favors the implication of
a private cause of action.
The third question, whether it is consistent with the
underlying purposes of the legislative scheme to imply such a
remedy for the plaintiff, must be answered affirmatively.
[A] private remedy should not be implied if it would
frustrate the underlying purpose of the legislative
scheme. On the other hand, when that remedy is
necessary or at least helpful to the accomplishment
of the statutory purpose, the Court is decidedly
receptive to its implication under the statute.
Cannon v. University of Chicago, 441 U.S. at 703, 99
S.Ct. at 1960 (footnote omitted).
Title VI sought to accomplish two objectives: (1) Congress wanted
to avoid the use of federal resources to support discriminatory
practices; and (2) it wanted to provide individual citizens
effective protection against those practices. Id. at 704, 99
S.Ct. at 1961. The following statement regarding title IX is
applicable to title VI:
The first purpose is generally served by the
statutory procedure for the termination of federal
financial support for institutions engaged in
discriminatory practices.*fn3 That remedy is, however,
severe and often may not provide an appropriate means
of accomplishing the second purpose if merely an
isolated violation has occurred. In that situation,
the violation might be remedied more efficiently by
an order requiring an institution to accept an
applicant who had been improperly
excluded. Moreover, in that kind of situation it
makes little sense to impose on an individual, whose
only interest is in obtaining a benefit for herself,
or on HEW, the burden of demonstrating that an
institution's practices are so pervasively
discriminatory that a complete cutoff of federal
funding is appropriate. The award of individual
relief to a private litigant who has prosecuted her
own suit is not only sensible but is also fully
consistent with — and in some cases even necessary to
— the orderly enforcement of the statute. Id. at
705-706, 99 S.Ct. at 1961-1962 (footnotes omitted).
Therefore, the third of the four factors identified in Cort v.
Ash favors the implication of a private cause of action.
The final question, whether implying a federal remedy is
inappropriate because the subject matter involves an area
basically of concern to the states, supports the implication of
a private federal remedy. It is the federal government and the
federal courts which primarily protect citizens against
discrimination on the basis of race, color or national origin.
Cannon v. University of Chicago, 441 U.S. at 708, 99 S.Ct. at
1963. Moreover, it is the expenditure of federal funds which
provides the justification for this particular statutory
prohibition. Id. at 708-709, 99 S.Ct. at 1963-1964. Therefore,
the fourth of the four factors identified in Cort v. Ash favors
the implication of a private cause of action.
After considering the four factors enunciated in Cort v. Ash,
the court concludes that a private right of action can be implied
under title VI. Where a private right of action can be implied,
the individual complainant need not exhaust his administrative
remedies before bringing suit. Cannon v. University of Chicago,
441 U.S. at 707 n. 41, 99 S.Ct. at 1962 n. 41. Therefore, with
respect to count II of the complaint, the motion to dismiss is
With respect to count IV of the complaint, defendants contend
that count IV fails to state a claim upon which relief can be
granted because plaintiff has failed to allege the elements
necessary for establishment of a contractual relationship and
because plaintiff has failed to allege a breach for which he is
entitled to reinstatement to the PhD program. A motion to dismiss
for failure to state a claim for relief under rule 12(b)(6),
Fed.R.Civ.P., goes to the sufficiency of the pleading under rule
8(a)(2), Fed.R.Civ.P.*fn4 Wright & Miller, Federal Practice &
Procedure: Civil § 1363, at 656 (1969). All of the allegations of
the complaint must be accepted as true. Diamond v. United States,
649 F.2d 496 (7th Cir. 1981).
In Steinberg v. Chicago Medical School, 69 Ill.2d 320, 13
Ill.Dec. 699, 704, 371 N.E.2d 634, 639 (1977), it was alleged
that Steinberg applied to Chicago Medical School and paid the $15
fee; that Chicago Medical School, through its brochure, described
the criteria to be employed in evaluating applications, but
failed to appraise Steinberg's application on the stated
criteria; and that Chicago Medical School evaluated applications
according to monetary contributions made on behalf of those
seeking admission. Steinberg argued that the brochure describing
the criteria employed in evaluating applications constituted an
invitation for an offer to apply, that the filing of an
application constituted an offer to have his credentials
appraised under the terms described by Chicago Medical School,
and that voluntary reception constituted an acceptance. The
Illinois Supreme Court held that the allegations stated a cause
of action for breach of contract. Id. 13 Ill.Dec. at 704, 371
N.E.2d at 639.
Thus, plaintiff's allegations that the document entitled
"Program for Graduate Educational Opportunity" created a contract
between him and the University, the Department and/or the GEO
that the latter breached the contract by not extending to
plaintiff any of the services described in that document are
sufficient to state a claim upon which relief can be granted.
Furthermore, it need not appear that plaintiff can obtain the
particular relief prayed for, as long as the court can ascertain
that some relief may be granted. Wright & Miller, Federal
Practice & Procedure: Civil § 1357, at 602 (1969). Therefore,
with respect to count IV of the complaint, the motion to dismiss
Accordingly, the motion of defendants Board of Trustees of the
University of Illinois, Dr. Richard Johnson, Dr. Roger
Dominowski, Dr. I.E. Farber, Dr. Leonard Eron, Dr. Michael
Levine, Dr. Phillip Ash, Dr. Benjamin Kleinmuntz, Dr. Judith
Torney, and Dr. Merwyn Garbarino to dismiss is denied.
It is so ordered.