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 ...