Tayyari v. New Mexico State University

MEMORANDUM OPINION

This case is before the Court on application by Plaintiffs for a declaratory judgment and permanent injunction. Money damages are not sought. Plaintiffs are 15 Iranian citizens, students at New Mexico State University (NMSU), and in good standing with the Immigration and Naturalization Service (INS) in respect to visa status. Defendants are NMSU, the Board of Regents of NMSU (Regents) and the five individual members of the Board of Regents. By letter of August 6, 1980 to the United States Attorney for New Mexico, I invited the United States to intervene or to participate as amicus curiae. I was concerned about the importance of this case as it may relate to United States foreign policy or immigration policy. The United States declined to intervene, but moved for leave to appear as amicus curiae. Leave was granted.

This controversy arises out of action taken by Regents designed to rid the campus of Iranian students. < For the reasons discussed below, the Court concludes that such action must be declared unconstitutional and that defendants must be permanently enjoined from implementing that action.

The essential facts are not in dispute. On May 9, 1980 Regents passed the following Motion:

*1368 . that any student whose home government holds, or permits the holding of U. S. citizens hostage will be denied admission or readmission to New Mexico State University commencing with the Fall 1980 semester unless the American hostages are returned unharmed by July 15, 1980.

To clarify its original action, Regents passed a Substitute Motion on June 5, 1980, which reads:

Any student whose home government holds or permits the holding of U. S. citizens hostage will be denied subsequent enrollment to New Mexico State University until the hostages are released unharmed. The effective date of this motion is July 15, 1980.

It is this Substitute Motion whose validity is now at issue.

At the court hearing on July 16,1980, the parties agreed to the entering of a preliminary injunction pending final decision on the merits. Defendants have been enjoined from enforcement of their motion as it applies to the Plaintiffs during the pendency of this action.

Another stipulation made at the hearing is that only in Iran are United States hostages held with permission of the home government. To date one hostage has been released for medical reasons.

Two Plaintiffs are “immigrant aliens.” They are in this country on permanent residency status and are eligible for naturalization after five years of residence here. 8 U.S.C. Sections 1101, 1427(a). The rest of Plaintiffs are “nonimmigrant aliens” who are admitted for a fixed period of time for a specific purpose, in this case on student visas to attend school. The Substitute Motion on its face affects both types of aliens.

Before discussing the merits of Plaintiffs’ contentions, I must consider some jurisdictional and other preliminary matters raised by Defendants. Plaintiffs allege jurisdiction under 28 U.S.C. Sections 1343(3) and (4) 1 and 28 U.S.C. Sections 2201 and 2202 over a cause of action created by 42 U.S.C. Sections 1981, 1983 and 2000d. No argument is made by Defendants that jurisdiction is not proper under 28 U.S.C. Sections 2201 and 2202. However, neither of these sections creates federal district court jurisdiction unless it otherwise exists. McGrath v. Weinberger, 541 F.2d 249 (10th Cir. 1976) cert. denied, 430 U.S. 933, 97 S.Ct. 1557, 57 L.Ed.2d 778 (1977); Thompson v. Groshens, 475 F.2d 127 (3d Cir. 1973), cert. denied, 414 U.S. 825, 94 S.Ct. 127, 38 L.Ed.2d 58 (1973). These sections merely create remedies of declaratory judgment and other relief where jurisdiction exists under other statutes.

28 U.S.C. Section 1343(a)(3) gives this Court jurisdiction over “any civil action authorized by law to be commenced by any person ... to redress the deprivation (by a state) of any right . . . secured by the Constitution of the United States or by any Act of Congress providing for equal rights of . all persons within the jurisdiction of the United States.” Defendants argue that this jurisdictional statute is inapplicable here because it is “necessarily related” to 42 U.S.C. Section 1981. They further argue that Section 1981 cannot provide a cause of action for these Plaintiffs because it is a provision to redress only racial discrimination, not discrimination based on national origin. The second part of Defendants’ argument is addressed below. The first part of this argument is defective because 28 U.S.C. Section 1343(a)(3) is not tied only to 42 U.S.C. Section 1981. Rather, it is a broad jurisdictional grant to redress deprivation of any constitutional right and to redress deprivation of equal rights where those rights are secured by statute. Thus, this section is tied not only to 42 U.S.C. Section 1981 but also to 42 U.S.C. Section 1983 and through them to the Fourteenth Amendment to the United States Constitution. In fact, 28 U.S.C. Section 1343(aX3) has been called the “jurisdictional counterpart” of 42 U.S.C. Section *1369 1983. Lynch v. Household Finance Corp., 405 U.S. 538, 540, 92 S.Ct. 1113, 1115, 31 L.Ed.2d 424 (1972).

Section 1343(a)(4) gives this Court jurisdiction over “. . . any civil action authorized by law to be commenced by any person ... to recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.” Defendants do not argue that this subsection does not grant jurisdiction if a claim has been stated under 42 U.S.C. Section 1983. Subsection (4) is a rather recent addition to 28 U.S.C. Section 1343. It is the jurisdictional counterpart of the Civil Rights Act of 1957, a special voting rights statute which has been amended several times and is now codified at 42 U.S.C. Section 1975, et seq. 1 Moore’s Federal Practice, Para. 0.62(9). Some courts have held that subsection (4) does not provide jurisdiction under Section 1983, e. g., Andrews v. Maher, 525 F.2d 113 (2d Cir. 1975), but in that case no substantial constitutional question had been presented. Where, as here, there appears a substantial constitutional question, subsection (4) expands existing federal district court jurisdiction pursuant to Sections 1983 and 1981 not only to actions under Section 1975, but to actions under other statutes as well. See, e. g., Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). I conclude that this Court has jurisdiction under both 28 U.S.C. Section 1343(3) and (4) over a cause of action created by 42 U.S.C. Sections 1981 and 1983. Thus, the inquiry must turn to whether Plaintiffs have stated a cause of action under either 42 U.S.C. Sections 1981 or 1983 or both.

42 U.S.C. Section 1981 2 grants the same rights to “all persons” as are enjoyed by “white citizens.” This section has generally been interpreted to proscribe racial discrimination, and to be based on the Thirteenth Amendment’s abolition of slavery, rather than on the Fourteenth Amendment’s guarantees of due process and equal protection. Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). However, there is language in Manzanares v. Safeway Stores, Inc., 593 F.2d 968 (10th Cir. 1979) to suggest that discrimination on the basis of national origin or alienage may afford a basis for suit under 42 U.S.C. Section 1981. The Tenth Circuit Court of Appeals made clear that it viewed Section 1981 as “not necessarily limited to the technical or restrictive meaning of ‘race.’ ” 593 F.2d at 971. The court stated:

The measure is group to group, and plaintiff has alleged that the “group” to which he belongs-those he describes as of Mexican American descent-is to be measured against the Anglos as the standard. . In this holding we consider that Mexican American, Spanish American, Spanish-surname individuals, and Hispanos are equivalents, and it makes no difference whether these are terms of national origin, alienage, or whatever. It is apparent that a group so described is of such an identifiable nature that the treatment afforded its members may be measured against that afforded the Anglos. Id. at 970 (emphasis added).

The Manzanares measure has found support in Note, Developments in the Law-Section 1981, 15 Harvard Civil Rts. Civil Liberties L.Rev. 29, 88-90 (1980). The Note suggests that a preferable approach would be to question whether a group is “commonly perceived to be racially different from the white .majority . . . regardless of its ‘objective’ racial composition. . . . ” Id. at 89-90. Iranian noncitizens can fit into the group protected by the statute (“all persons”) as contrasted to the control group *1370 (“white citizens”). See, also, McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976) (white citizens are protected against racial discrimination by Section 1981). I conclude that 42 U.S.C. Section 1981 provides a basis for Plaintiffs’ cause of action in this case, and supports this Court’s jurisdiction under 28 U.S.C. Section 1343(a)(3) and (4).

An alternative basis for this action is 42 U.S.C. Section 1983. 3 In view of the broad reach of this statute, Defendants argue only that they are immune from suit here by virtue of the Eleventh Amendment. 4

The question of whether a defendant is immune is not a jurisdictional issue in a civil rights suit. Rather, immunity is an affirmative defense which may defeat relief once subject matter jurisdiction has been established. Robinson v. Bergstrom, 579 F.2d 401 (7th Cir. 1978). There is no question but that subject matter jurisdiction is proper under 28 U.S.C. Sections 1343(a)(3) and (4) for a cause of action under Section 1983. There is no question but that Plaintiffs have stated a claim under Section 1983. Thus, I conclude that I do have subject matter jurisdiction in this case.

The Court believes that the immunity argument lacks merit. The Eleventh Amendment, by its express terms, extends immunity only to states, and the State of New Mexico is not here named as a defendant. But the courts have extended Eleventh Amendment immunity to arms or instrumentalities of states as well. Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459 (1945). Instead of going into an analysis of whether NMSU is an arm or instrumentality of the State, see, Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), Gay Rights v. Texas A & M, 612 F.2d 160 (5th Cir. 1980), and Hillis v. Stephen F. Austin State University, 486 F.Supp. 663 (E.D.Tex. 1980), it should be noted that Plaintiffs here do not seek money damages. Immunity from damages does not ordinarily bar injunctive relief. Wood v. Strickland, 420 U.S. 308, 315-316 n.6, 95 S.Ct. 992, 997-98, 43 L.Ed.2d 214 (1975), reh. denied 421 U.S. 921, 95 S.Ct. 1589, 43 L.Ed.2d 790 (1975). The Ex parte Young fiction, that a state officer cannot act in his official capacity in an unconstitutional manner, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) would allow declaratory and injunctive relief to be granted against the members of the Board of Regents. Thus, Defendants’ immunity defense must fall.

Plaintiffs also allege violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. Section 2000d:

No person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

This statute is enforceable under the jurisdictional grants of both Section 1343(a)(3) and (4). It is an “Act of Congress providing for equal rights” within the meaning of subsection (3). It is also an “Act of Congress providing for the protection of civil rights” within the meaning of subsection (4).

It was stipulated by the parties at the hearing that NMSU receives federal funds. Thus, Defendants are subject to the *1371 provisions of Title VI. Private plaintiffs have standing to enforce the provisions of the statute. Otero v. Mesa County Valley School Dist. No. 51, 568 F.2d 1312 (10th Cir. 1977); Bossier Parish School Board v. Lemon, 370 F.2d 847, 852 (5th Cir. 1967), cert. denied 388 U.S. 911, 87 S.Ct. 2116, 18 L.Ed.2d 1350 (1967); cf. Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (private cause of action under Title IX of the Education Amendments of 1972). Thus there is federal jurisdiction to consider Plaintiffs’ Title VI claim.

Defendants next argue that there exists no case or controversy here that is ripe for judicial decision because Plaintiffs have not yet been denied enrollment. They argue the case may become moot if the hostages are released unharmed before enrollment is actually denied, or if individual Plaintiffs are ineligible for some other reason, such as nonpayment of fees. It is true that enrollment for the Fall semester had not commenced at the time of the hearing in this case. I conclude, however, that the' threat of being denied enrollment is sufficiently real and imminent to make this case ripe for decision at this time. 5 If Plaintiffs were denied enrollment, they would have to make other plans for school attendance because their student visas are conditioned upon attendance at an American school. It would be improvident to make Plaintiffs wait until actual denial of enrollment to bring this action. Nor has release of the hostages ever seemed likely to come about soon. 6 The difference between a hypothetical or abstract question and a “case or controversy” is one of degree. The basic inquiry is whether the “conflicting contentions of the parties . . . present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979), citing Railway Mail Ass’n v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1483, 1487, 89 L.Ed. 2072 (1945). Plaintiffs have demonstrated a realistic danger of sustaining direct injury as a result of enforcement of Regents’ Substitute Motion, thus the questions presented to me are not abstract or hypothetical.

As for the potential ineligibility of some Iranian students for enrollment at NMSU on a basis other than Regents’ Substitute Motion, this argument is precluded by a stipulation entered into between Plaintiffs and Defendants at the hearing. That stipulation was to the effect that these Plaintiffs would be eligible for reenrollment but for the Motion adopted by Regents. Therefore, the Court may proceed to the merits of Plaintiffs’ contentions.

Plaintiffs claim they are being denied equal protection of the laws and due process rights guaranteed to them under the Constitution of the United States. They seek a judicial declaration that the action of the Regents in adopting the Motion denying Plaintiffs subsequent enrollment at NMSU is unconstitutional. Also, they pray for an injunction permanently enjoining Defendants from implementing the challenged Motion.

EQUAL PROTECTION. The first inquiry in an equal protection analysis is into the nature of the classification involved in the challenged action. This is important for it establishes the Court’s standard of review of that action. The classification here is along lines of both alienage and national origin. Regents’ motion distinguishes between aliens and United States citizens because it is directed at students with a home government other than the United States. At the hearing, Defendants further refined the alienage classification by stating that the motion would not be *1372 applied against the two immigrant alien Plaintiffs. Thus, the class against which Regents’ action is directed is nonimmigrant aliens. No rationale has been presented by Defendants for distinguishing among aliens according to their immigrant status except that Defendants admit they believe the Motion could not constitutionally be applied to these immigrant aliens.'

Aliens residing in our land have long enjoyed protection of the United States Constitution. The Fourteenth Amendment protects not only citizens, but also “any person” within a state’s jurisdiction, from unequal treatment at the hands of the state. See, Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (aliens cannot be excluded from laundry business); Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915); Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948).

Alienage has been treated under modern equal protection analysis as a suspect classification, Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), thus invoking strict judicial scrutiny of a state’s challenged action. 7 While states may deny aliens the right to vote, a traditional badge of citizenship, they may not deny aliens welfare benefits, Id., competing for certain civil service jobs, Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973), membership in the Bar, In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973), or engineering jobs, Examining Board v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264,49 L.Ed.2d 65 (1976). In this line of cases, the one most on point for our purposes is Nyquist v. Mauclet, 432 U.S 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977). In that case, the Supreme Court found an equal protection violation where the State of New York denied aliens the right to receive state financial assistance for higher education. Plaintiffs argue that if a state cannot deny aliens financial assistance for a college education, a fortiori it cannot deny them the education itself.

Defendants argue that alienage is not always a suspect classification. While Graham v. Richardson, supra, and its progeny have never been expressly overruled, Defendants cite recent cases in which the Supreme Court has applied a lesser standard, that of rationality, to the challenged state action involving aliens. Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978), and Ambach v. Norwick, 441 U.S. 68, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979).

Foley and Ambach relied on language in Sugarman that left open the door for a ban on employment of aliens for certain positions in state government. Sugarman used strict scrutiny, and looked to “the substantiality of the State’s interest in enforcing the statute in question, and to the narrowness of the limits within which the discrimination is confined,” 413 U.S. at 642, 93 S.Ct. at 2847. In Sugarman, the statute in question did not pass constitutional muster primarily because the statute, barring aliens from all competitive civil service jobs, was “neither narrowly confined nor precise in its application,” 413 U.S. at 643, 93 S.Ct. at 2848. The Court recognized as legitimate and substantial, however, the State’s interest in having loyal citizens as civil servants to formulate and execute government policy. It stated that its scrutiny would be less demanding when dealing with matters related to a state’s self-government, “a State’s constitutional prerogatives,” 413 U.S. at 648, 93 S.Ct. at 2850.

Foley involved a challenge against a New York statute limiting state police jobs to United States citizens. The Court upheld the statute, finding a rational relationship between the interest sought to be protected (state self-government by loyal employees executing governmental policy) and the limiting classification. The reason for not employing strict judicial scrutiny was that the police function “involves discretionary decisionmaking, or execution of policy, which substantially affects members of the political community,” 435 U.S. at 296, 98 S.Ct. at 1071.

*1373 The Court in Ambach applied the rational •basis test to a New York statute restricting public elementary and secondary school teaching positions to citizens and noncitizens intending to become citizens. Use of this standard was again justified on the basis of the discretionary role of public school teachers in teaching political values to children. The Court found public school teachers to fulfill a “governmental function” so as to invoke less demanding judicial scrutiny, 441 U.S. at 75, 99 S.Ct. at 1594.

The distinguishing factor, then, between this case and the situations present in Foley and Ambach, is that students attending a state university do not perform any discretionary function implicating the state’s right to self-government. Thus, the governmental function exception to the general rule that alienage is a suspect classification requiring strict judicial scrutiny, is not called into play here. Graham and Nyquist control.

Alienage is not the only suspect classification involved here. Even though no nation is named in the Substitute Motion, the classification is necessarily based on national origin. A student with a home government other than the United States is a student from a foreign country. If that country permits the holding of United States hostages, then students from that country, and only students from that country, are affected. Not only is the effect so limited, but testimony and exhibits at the hearing show the clear purpose of Regents was to exclude only students of one nationality: Iranian. Nationality is another suspect classification calling for strict judicial scrutiny. Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). Even Justice Rehnquist, who believes the Fourteenth Amendment should only protect against racial discrimination, seems to look askance at a state statute discriminating against aliens on the basis of nationality. In Sugarman, he said:

The state statute that classifies aliens on the basis of country of origin is much more likely to classify on the basis of race, and thus conflict with the core purpose of the Equal Protection Clause, than a statute that . . . merely distinguishes between alienage as such and citizenship as such. 413 U.S. at 655, 93 S.Ct. at 2864 (dissenting opinion).

Defendants’ final argument against use of strict judicial scrutiny is based on Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979), cert. denied,-U.S.-, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980). In that case, the court of appeals applied the rational basis test and upheld a regulation promulgated by the Attorney General at the direction of President Carter. The regulation required all Iranian students of higher education who are nonimmigrant aliens to clear their status with INS or risk deportation proceedings. That case involved not state action but action by the executive branch of the federal government. The decision rested on principles of separation of powers: the President is vested with authority over foreign affairs. That authority sometimes requires distinctions to be drawn along lines of alienage and national origin. It is not the province of the judicial branch to closely scrutinize actions by the President which bear some rational relationship 8 to his authority over foreign affairs. But here we do not deal with presidential action, we are dealing with state action. No credible policy reason has been advanced by Defendants to support their contention for relaxed scrutiny as applied to Regents’ action.

None of the reasons offered by Defendants for their action rises to that level of compelling state interest which withstands strict scrutiny. Their first justification is financial: credit is extended to Iranian students and they might not pay their bills. If they don’t pay their bills it wouldn’t be fair to make the citizens of *1374 New Mexico pick up all the fees for Iranian students while financing all other students only partially. And if the Iranian students don’t pay, it wouldn’t be fair to let them stay in student housing since there is a shortage and students who would pay should be given housing. Finally, if the Iranian students don’t pay their bills it might be difficult to collect amounts owing because the Iranian embassy in the United States has been closed.

The action taken by Regents - barring all Iranian students from enrolling at NMSU — sweeps too broadly and too indiscriminately if their true concern is financial. If Regents’ true concern be financial, they have, in a figurative sense, thrown out the baby with the bath water.

First of all, Regents have come up with a financial justification rather late in the game. This was a wobbly afterthought first articulated at the hearing. No such concerns were publicly expressed prior to the hearing. Notably, the only mention of finances in the Regents’ minutes of May 9, 1980, Plaintiffs’ Exhibit 2, is that the taxpayers shouldn’t have to support Iranian students at NMSU. The reasoning given for that proposition at the time had nothing to do with whether Iranian students could or would pay their bills. It was that Iran had become an enemy of the United States and that Americans are angry and fed up with Iranians and, therefore, Iranian students shouldn’t get any benefits from New Mexico taxpayers. I find that concerns about finances at NMSU did not underlie Regents’ action.

Second, even if finances were a true concern of Regents, Defendants have utterly failed to demonstrate any fiscal danger posed by Iranian students. Evidence admitted at the hearing showed only that some Iranian students owed the school money in May 1980. Apparently, credit is extended to students for school expenses. As of the date of the hearing, only two Plaintiffs were in arrears, for a total of $930.00. Several others still owed money but were not in arrears. Three were paid up. It should be noted that a fiscal policy at NMSU applies to all students:

(A)ll fees and bills owed NMSU must be paid in full before a student may enroll in any subsequent Fall or Spring semester. These bills include payment of library fees, payment of dormitory and residence fees, and payment of all bills incurred for such items as those purchased from the University Book Store and the University Cafeteria. Defendants’ Trial Brief, 2.