Opinion for the Court filed by Circuit Judge WILKEY.
WILKEY, Circuit Judge:
This case arises out of the termination of appellant's employment as a parttime, off-campus instructor with the College of General Studies of The George Washington University. During his last academic year, appellant taught one English course each semester at the United States Naval School of Hospital Administration, Bethesda, Maryland, where his students were mainly naval officers and other persons attached to the School. The University provided these courses to the Navy under contract and the University, in turn, arranged for an instructor. Appellant's complaint claimed a violation of his civil rights and common law claims of defamation, wrongful termination, and breach of contract by George Washington University and John Reesing, Jr., the Chairman of the English Department. At trial the court granted defendants' motion for a directed verdict on the constitutionally-based claims for relief and on the claims relating to defamation. The issues relating to wrongful termination and breach of contract went to the jury, who found for defendants. We affirm.
I. Constitutionally-Based Claims
Initially we must determine whether the District Court was in error when it determined (after considering appellant's evidence at trial) that appellant had failed as a matter of law to present any constitutionally-based claims for relief. Appellant had alleged that he had been fired because one or more articles he had written and had published aroused the displeasure of defendant Reesing. It is contended that as a result Reesing failed to renew appellant's contract, a contract which would otherwise have been routinely renewed. Although defendants contest both these allegations, the District Court did consider appellant's contractual claims sufficiently substantial to permit them to go to the jury. Therefore, in ruling on the constitutional claims, we must also assume that appellant would have prevailed sufficiently on these allegations to permit them to go before the jury. In addition, both sides concede that appellant was granted no procedural rights whatsoever in connection with the non-renewal of his contract.
The District Court's grant of a directed verdict for defendants is based on two grounds: First, after listening to the evidence, it determined that there was a lack of sufficient governmental involvement in appellant's employment relationship or termination to trigger application of First or Fifth Amendment guarantees. Second, even if there had been sufficient governmental involvement, the Civil Rights Statute, 42 U.S.C. § 1983, failed to give appellant a claim for monetary relief, because it was inapplicable by its terms to actions undertaken "under color" of federal law or custom. As will be discussed in more detail below, we find the District Court was correct on both these grounds.
A. State Action
All analysis of constitutional rights must begin with a recognition that the Constitution, with rare exceptions,
George Washington University, like nearly all private institutions of higher learning, received a corporate charter from the appropriate governmental chartering authority, is exempt from taxation under federal and local law because it is an educational institution, and receives federal funding for certain of its programs and capital expenditures. We have no difficulty deciding that the first two factors do not constitute sufficient governmental involvement in the University to make it a governmental entity for constitutional
Looking to the third factor, however, we find some cases that have held that significant government funding constitutes sufficient state involvement in the activities of the recipient to trigger constitutional guarantees for those dealing with the recipient. With rare exceptions these cases have dealt with racial discrimination practiced by recipients of government funds.
In most respects such financial support can be viewed the same as a tax exemption.
Our conclusions are predicated on the absence of any showing before the District Court that the Federal or District of Columbia Government has exercised any role in the management of George Washington University or has adopted a pervasive scheme of statutes, codes, and conditions which has the effect of regulating in detail the University's management. While the determination of how much governmental involvement is necessary before a private institution is subject to constitutional limitations must be made on a case by case basis, we are clear that the mere receipt of government loans or funding by an otherwise private university is not sufficient involvement to trigger constitutional guarantees in the University's relations with its employees.
Realizing that the above three factors would probably prove insufficient, appellant has sought to augment
George Washington University must, in the present case, be viewed as a private institution. Absent a nexus between appellant's termination by the University and the Navy, appellant can have no claims for relief against the University or its employees arising under the First Amendment or the procedural due process guarantees of the Fifth Amendment.
B. Jurisdiction under the Civil Rights Statute
Appellant insists that notwithstanding the Supreme Court's opinion in District of Columbia v. Carter
Carter holds that section 1983 is inapplicable to actions against the District of Columbia, because the District was neither a "State" nor a "Territory" within the meaning of the statute, which provides a claim for equitable or legal relief to any person who has been denied constitutional rights "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ...." This case is definitely not an action against an organization acting under color of state or territorial law. The District Court's reference to Carter was by way of underscoring the fact that if section 1983 was inapplicable to the District, it was certainly inapplicable to an organization such as George Washington University which is argued to be acting under color of federal law.
We do not suggest that one is without any remedy if an organization acting under color of federal law is depriving a person of his constitutional rights. We only hold that plaintiff has no claim arising under the Civil Rights Statute and that if a claim for damages against a federal instrumentality exists at all it must be created by the Constitution itself.
II. The Common Law Claims
The District Court directed a verdict for appellees on the issues of defamation and punitive damages. The alleged defamatory statement was an entry on a 3 x 5 index card in the Office of Academic Staffing made at the direction of Reesing stating, "Do not staff." Appellant contends that the phrase carries an innuendo of either incompetence or dishonesty. Although appellees contest the assertion that the statement was in any sense defamatory and argue that Greenya was not damaged, their basic contention is that there was no publication.
It is well accepted that officers and faculty members of educational organizations enjoy a qualified privilege to discuss the qualifications and character of fellow officers and faculty members, if the matter communicated is pertinent to the functioning of the educational institution.
Appellant also complains of a ruling at trial striking as irrelevant Plaintiff's Exhibit No. 3, the A.A.U.P. [American Association of University Professors] Policy Documents and Reports (1971 Edition), a document containing seventy-nine finely printed pages. The court found the exhibit to be irrelevant because it was published some two years after the events involved in the litigation and because the policies contained in the document had never been adopted by the University and thus had not been incorporated into the University's contractual relations with its employees. The trial court acted well within its discretion on this evidentiary matter.
Appellant has contested the jury instructions on numerous grounds. We have examined those instructions and have found no reversible error.
No "state action" results from the grant of a corporate charter: Trustees of Dartmouth College v. Woodward, 4 Wheat. (17 U.S.) 518, 635-39, 4 L.Ed. 629; Blackburn v. Fisk University, 443 F.2d 121 (6 Cir.1971).
"State action" has been found on the basis of a tax exemption where allegations of racial discrimination were being made: Jackson v. Statler Foundation, 496 F.2d 623 (2nd Cir.1974) (if substantially dependent on tax exemption); Falkenstein v. Dept. of Revenue, 350 F.Supp. 887 (D.Or.1972) (three-judge court), appeal dismissed, 409 U.S. 1099, 93 S.Ct. 907, 34 L.Ed.2d 681 (1973). See also Green v. Connally, 330 F.Supp. 1150 (D.D.C. 1971) (three-judge court), aff'd per curiam sub nom. Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971); McGlotten v. Connally, 338 F.Supp. 448 (D.D.C.1972) (three-judge court).
"State action" was found in the following cases—all except the first are in the context of racial discrimination: McQueen v. Druker, 438 F.2d 781 (1st Cir.1971) (non-racial; tenant whose lease was not renewed makes procedural due process and First Amendment arguments; landlord had received very substantial governmental financial assistance); Sams v. Ohio Valley General Hospital Association, 413 F.2d 826 (4th Cir.1969); Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir.1963) (en banc), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (racial discrimination); Kerr v. Enoch Pratt Free Library, 149 F.2d 212 (4th Cir.), cert. denied, 326 U.S. 721, 66 S.Ct. 26, 90 L.Ed. 427 (1945) (racial discrimination); cf. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961).
Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176-77, 92 S.Ct. 1965, 1973, 32 L.Ed.2d 627 (1972).
Although appellant has not raised the argument, we have considered whether higher education constitutes "state action" because it is a "public function" as that term has been developed since Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), and have concluded that it is not. We agree with the Second Circuit's conclusion that education, even at the primary or secondary levels, has never been a state monopoly in the United States. As a historical matter, the widescale private development of higher education in this country preceded state entry into the field by more than a century. Powe v. Miles, 407 F.2d 73, 79-80 (2nd Cir.1968), reaffirmed, Grafton v. Brooklyn Law School, 478 F.2d 1137 (2nd Cir.1973). Contra, Developments in the Law-Academic Freedom, 81 Harv.L. Rev. 1045, 1060-61 (1968).
Contra, Archuleta v. Callaway, 385 F.Supp. 384, 388 (D.C.Colo.1974); Moore v. Schlesinger, 384 F.Supp. 163 (D.C.Colo.1974) (First Amendment); Smothers v. Columbia Broadcasting System, Inc., 351 F.Supp. 622, 626 (C.D.Cal.1972) (First Amendment); Davidson v. Kane, 337 F.Supp. 922, 924 (E.D.Va.1972) (limited Bivens to cases arising under the Fourth Amendment). The question has been left open by this court and by the Second Circuit. Cardinale v. Washington Technical Institute, 163 U.S.App.D.C. 123, 128, 500 F.2d 791, 796 n. 5; Wahba v. New York University, supra, 492 F.2d at 103-04. Even if it were decided that federal officers can be sued for damages for violations of the First and Fifth Amendments, such a decision would not automatically sweep within its ambit a case such as this one where private parties and not federal officers are allegedly acting under color of federal law or custom. Fletcher v. Rhode Island Hosp. Trust Nat. Bank, 496 F.2d 927, 932 n. 8 (1st Cir.1974). Because we find no state involvement and because the issue was not raised before this court or the District Court, we do not feel compelled to reach these issues. Citizens for Allegan County, Inc. v. FPC, 134 U.S.App.D.C. 229, 239, 414 F.2d 1125, 1135 (1969).