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Powe v. Miles

decided: December 23, 1968.


Medina, Friendly and Smith, Circuit Judges.

Author: Friendly

FRIENDLY, Circuit Judge:

This appeal from the dismissal of a complaint under the Civil Rights Act, 42 U.S.C. § 1983, by students at Alfred University, some of them in the New York State College of Ceramics, demands analysis of the elusive concept of "state action," recently characterized as "the most important problem in American law." Black, "State Action," Equal Protection, and California's Proposition 14, 81 Harv.L.Rev. 69 (1967). It requires us to consider this in the context not of racial discrimination, to which Professor Black limited his discussion, id., at 70, but of First Amendment rights. Our labors have at least convinced us of the wisdom of Mr. Justice Clark's observation in Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S. Ct. 856, 860, 6 L. Ed. 2d 45 (1961), criticized at the time for failing to provide adequate guidance:*fn1

"Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance."


Alfred University began in 1836 as a "select school," which developed into Alfred Academy, chartered in 1843. The Academy was incorporated as a private university by the New York Legislature in 1857. Its charter provides for government by a board of 33 self-perpetuating trustees. All are private individuals. It now has four colleges, the Liberal Arts College, the Graduate School, the School of Nursing, and the New York State College of Ceramics. The last stems from a state school of clay-working and ceramics which New York founded at Alfred in 1900. N.Y.Laws, c. 383. When New York established a State University in 1948, it provided that the University should include not only state-operated institutions but also "statutory or contract colleges" like that at Alfred, to wit, "Colleges furnishing higher education, operated by private institutions on behalf of the state pursuant to statute or contractual agreements." Education Law McKinney's Consol. Laws, c. 16, §§ 350(3) & 352(3).*fn2 At the same time the Legislature directed that, subject to higher state authority, "the state university trustees shall be responsible for: (a) The over-all central administration, supervision and co-ordination of state-operated institutions and statutory or contract colleges in the state university," Education Law § 355(1), and also added what is now § 357 of the Education Law providing that:

"Statutory or contract colleges shall continue to be operated pursuant to the provisions of this chapter [the 1948 Act] but such colleges shall be subject to the general supervision and control of the state university trustees."

In 1950 the provisions of the Education Law dealing specifically with the New York State College of Ceramics were recast in light of the establishment of the State University; we set them forth in the margin.*fn3

Although the record does not contain the contract between the State and Alfred University with respect to the Ceramics College, the testimony of President Miles furnishes many significant details. The State pays all the direct expenses of the College (sometimes hereafter CC). In addition it pays a stipulated sum per credit hour for courses taken by CC students in "the private sector," with a corresponding payment by the latter for instruction CC gives students in other colleges. The State reimburses Alfred for a pro rata share of the entire administrative expense of the University including the salaries of the President, the Dean of Students, and other general officers, utilities and overhead.

The dean and faculty of CC are hired and gain tenure in the same way as the dean and faculty of other colleges at Alfred. On retirement they can opt between the state retirement plan and the Alfred plan but in fact all take the latter. While § 355-a(1) of the Education Law generally authorizes the state university trustees to classify and allocate all professional employees of the state university, it excepts "those of the New York state colleges * * * administered by Cornell university and Alfred university," which are authorized, subject to state approval, to allocate professional and other employees at their contract colleges, § 355-a(2). The two universities are to classify each professional or non-professional employee of the contract colleges within two grade schedules laid down in the statute. Maximum and minimum salaries, and a maximum annual increment, are specified for each grade, § 355-a(3). Further detailed provisions govern other aspects of the remuneration of all state university employees, regulating identically the contract colleges and the state-operated institutions, § 355 -- a(4) to (11).

The state's last annual appropriation for CC was $1,800,000. This was 20.75% of the total Alfred budget. There are some 550 students and 40 faculty members in CC, as compared with University totals of 1800 and 140. As indicated, CC students take some courses in the Liberal Arts College; indeed this is an important reason for having CC at Alfred. The reverse is true in lesser degree.


In recent years students at Alfred, like those at many other universities, have engaged in protests and demonstrations, sparked in particular by opposition to the war in Vietnam and commitment to improving relations between black and white citizens. Fully recognizing the propriety of such action the University issued a Policy on Demonstrations effective January 1, 1968, which is reproduced as an Appendix to this opinion.

The events giving rise to this suit took place on May 11, 1968. We summarize them as follows:

Alfred has for several years sponsored an annual Parents Day, on which the parents of students are invited to visit the campus and attend various gatherings. Since the founding of an Army ROTC unit on campus in 1952, a military review has been scheduled as one of the Parents Day activities. Held on the university's football field, the review allows the parents to see the cadet corps in marching maneuvers and serves as the occasion for the presentation of awards to cadets who have excelled in the military science program. During the week prior to the 1968 Parents Day on Saturday, May 11, several Alfred students, members of the SDS chapter on campus, met to discuss the possibility of staging a demonstration during the ceremonies. They considered the event an appropriate occasion for demonstration because there had recently been controversy over the requirement that each male student at Alfred participate in the ROTC program during his freshman and sophomore years and the assembly of parents would furnish a large audience to witness the expression of views. The students did not confer with the Dean of Students about their plan to demonstrate or give his office the 48-hour prior notice required by the Policy on Demonstrations. There was testimony that two of the students attempted unsuccessfully to meet with President Miles during that week, but apparently the President was informed only that this ...

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