F.2d 1128 (1969). Absent a showing to distinguish this case, the Court considers itself bound to follow the rule of those decisions.
In the Memorandum supporting his application for a temporary restraining order, the plaintiff tried to distinguish his case by arguing that previous decisions had not considered a federal statute that authorizes the Secretary of Health, Education, and Welfare to "control and supervise" the expenditure of direct federal appropriations to Howard University, 20 U.S.C. § 122, and by stating that his participation in the Public Health and National Health Service Corps Scholarship Training Program made his case different from others. He has not reiterated these arguments in his written opposition to the defendants' motion for summary judgment, which raises the fifth amendment issue. The Court cannot be sure whether the plaintiff has abandoned these positions.
Even if the existence of 20 U.S.C. § 122 was not called to the attention of the courts that have previously ruled on the question of Howard University's amenability to the fifth amendment and if the plaintiffs in previous cases have not been recipients of public health scholarships, the Court does not believe these factors sufficiently distinguish this case to except it from the rule of previous decisions. Plaintiff has not shown that the Federal Government exercises sufficient control over the actions of Howard, as required under Williams v. Howard Univ., 174 U.S. App. D.C. 85, 528 F.2d 658, 660, cert. denied, 429 U.S. 850, 97 S. Ct. 138, 50 L. Ed. 2d 123 (1976). Defendants' motion for summary judgment as to the due process claim will therefore be granted.
B. The Common Law Claim.
The plaintiff has also alleged a common law claim within the Court's diversity jurisdiction. The defendants have not challenged our jurisdiction on the basis of diversity. Being satisfied that the complaint states a cause of action cognizable under our diversity jurisdiction at least with respect to the University and that the claim as to the other defendants is likely cognizable under our pendent jurisdiction, the Court has considered the defendants' motion for summary judgment on the common law claim.
In order to state an actionable claim in these circumstances, the plaintiff must adduce evidence of a violated contractual right or improper motivation or irrational action on the part of Howard University. Williams v. Howard Univ., 174 U.S. App. D.C. 85, 528 F.2d 658, 660-61, cert. denied, 429 U.S. 850, 97 S. Ct. 138, 50 L. Ed. 2d 123 (1976).
With respect to his breach of contract claim, the plaintiff alleges that the Medical College's "Student Promotions Policy" constitutes a contract between him and the University which the University breached. Specifically, he alleges that the University breached the contract by imposing conditions upon him that were not provided for in the Student Promotions Policy after he had twice failed biochemistry. The promotions policy makes it clear that the University had the option of dismissing the plaintiff at this juncture. It is also clear that the University could have required the plaintiff to repeat his first year and to audit any course. The policy is silent as to what other options the University may have had.
Assuming the Student Promotions Policy constituted a contract between plaintiff and the University, the task before the Court is to interpret the contract to determine the intent of the parties. Contract interpretation is a function of the court where, as here, no extrinsic evidence is necessary to determine an agreement's meaning and/or the meaning is so clear that reasonable men could reach only one conclusion. J. Calamari & J. Perillo, Contracts § 49 (1970). Since it is apparent that this is not an integrated agreement, the standard is that of reasonable expectation -- what meaning the party making the manifestation, the University, should reasonably expect the other party to give it. Id. § 47, at 90.
Under the contract, the University reserved to itself the right to dismiss a student who failed a class and did not succeed in removing the deficiency through the Directed Study Program. It seems apparent, therefore, that it also reserved the right to require such a student to comply with any reasonable condition to retain his student status. Plaintiff would have us apply the canon "expressio unius est exclusio alterius" to the agreement and hold that by stating it could require a retained student to audit any course, the University thereby relinquished its right to impose any other condition upon continued enrollment. This result is patently unreasonable. It would tie the hands of University officials trying to assist marginal students and maintain academic standards.
After reading the Student Promotions Policy, the reasonable expectation of any student is that if he fails a course and does not make up the deficiency in the Directed Study Program, he can be dismissed or can be retained upon compliance with any reasonable condition. This is the interpretation the Court gives the Student Promotions Policy. It does not render meaningless the "audit any course" language. That language applies to both freshman and sophomore students. When read in light of the Court's interpretation, it means that when allowed to repeat a year a sophomore may be required to audit freshman classes or a freshman may be required to audit other classes.
Under this interpretation, the plaintiff has failed to adduce any evidence of a violated contract right. He has also failed to present any facts to show improper motivation or irrational action on the part of the University or any of its officials. On the contrary, all the evidence indicates the University went out of its way to help the plaintiff remain in medical school without compromising its academic standards.
It gave him at least three "second chances." Under these circumstances, the facts necessary to sustain an actionable claim have not been shown. Williams v. Howard Univ., 174 U.S. App. D.C. 85, 528 F.2d 658, cert. denied, 429 U.S. 850, 97 S. Ct. 138, 50 L. Ed. 2d 123 (1976). The defendants' motion for summary judgment on the common law claim will therefore be granted.
An Order consistent with this Memorandum Opinion has been entered today.
John H. Pratt United States District Judge
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 428 F. Supp.]
This matter came before the Court on the defendants' motion for summary judgment.
The Court has considered the pleadings, an affidavit, two depositions, and the exhibits. It appearing to the Court that there are no genuine issues of material fact and that the defendants are entitled to judgment as a matter of law for the reasons set forth in the accompanying Memorandum Opinion, it is this 17th day of March, 1977,
ORDERED, that summary judgment be, and hereby is, granted as to all defendants.
John H. Pratt United States District Judge