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YAKIN v. UNIVERSITY OF ILLINOIS

February 20, 1981

PAUL YAKIN, PLAINTIFF,
v.
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:

MEMORANDUM OPINION

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 is denied.

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 program.

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 not agree.

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 ...


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