Appeal from the United States District Court for the District of New Jersey [D.C. Civil Action No. 910-71].
Biggs, Kalodner and Adams, Circuit Judges.
Rothblum and Gilbard and "John Doe", plaintiffs-appellants, allegedly citizens of New York and of the United States and federal taxpayers, filed an amended complaint (complaint) requesting the convening of a three-judge district court pursuant to 28 U.S.C. § 2281 et seq., and seeking to have certain alleged discriminatory admission practices of the New Jersey College of Medicine and Dentistry (College) declared to be unconstitutional. They seek their admission to the College and allege they were denied admittance to the College solely because of their foreign citizenship in violation of Article IV, Section 2(1),*fn1 Article I, Section 8(1),*fn2 and the Equal Protection Clause.*fn3 The amendment to the complaint was for the purpose of creating a class action. On June 18, 1971 a rule to show cause was issued by a single district judge as to why the relief sought should not be granted to the plaintiffs.*fn4 On June 25, June 30, and July 6, 1971, hearings were had before the district court. These hearings seem to have been devoted to the issues of whether or not a preliminary injunction should issue and whether or not a three judge district court should be convened pursuant to 28 U.S.C. §§ 2281 and 2284.
The essential allegations of the complaint which are supported by proof are as follows: "3. The Defendant Board of Trustees of the College of Medicine & Dentistry of New Jersey is the governing body of the Defendant College of Medicine of Dentistry of New Jersey and pursuant to N.J.S.A. 18A:64G-3 and 4 is vested with the government control, conduct, management and administration of Defendant College.
"Defendant Dr. Stanley S. Bergen, Jr., is the President of Defendant College and pursuant to N.J.S.A. 18A:64G-11 is responsible to the Defendant Board of Trustees and has the power of executive management and conduct of the Defendant College in all departments, branches and divisions, and for the execution and enforcement of the bylaws, rules, regulations and orders governing the management, conduct and administration of the Defendant College; This Defendant is sued in his official capacity.
"Defendant College of Medicine & Dentistry of New Jersey is an establishment in the Department of Higher Education of the State of New Jersey for the operation of a program of medical and dental education, created under N.J.S.A. 18A:64G-1-3, and is hereafter referred to as 'The Medical School'.
"Defendant Dr. Arthur J. Kahn is Dean of Admissions of the College of Medicine of New Jersey, and has general supervisory authority over admissions to the Defendant medical school, and is sued in his official capacity.
"4. The Court has jurisdiction over the parties hereto and of the subject matter of the Complaint, and as will fully appear from the facts hereinafter set forth, a justiciable issue is raised which entitles the Plaintiffs, inter alia, to a declaratory judgment under United States Code, Title 28, Section 2201 as to the validity of the State policy hereinafter put in issue.
"6. Defendant 'medical school' is and has been the recipient of vast sums*fn5 of federal funds collected by the Government of the United States under its taxing power (Article I, Section 8(1)) and disbursed by the Government of the United States pursuant to legislation (42 U.S.C. 290, et seq.) passed under the authority to expend money for the general welfare (Article I, Section 8(1)) and to promote the Progress of Science (Article I, Section 8(8)). Upon information and belief, without the said federal funds, it would have been and would presently be economically impossible for the Defendant 'medical school' to perform its statutory functions under N.J.S.A. 18A:64G.
"7. Federal support of state and private health programs and functions issue from a comprehensive federal funding and health promotion plan outlined and authorized by 42 U.S.C., Section 290 et seq. Educational fund allocation provisions and fund use regulations and conditions comprising a massive health spending program are contained in 42 U.S.C., Section 292 -- Section 298c-8. This Congressional undertaking clearly reflects a federal recognition of the national character of problems like public health, health care, and medical education.
"8. The Defendants enumerated hereinabove have established and have implemented a policy of admission to the Defendant 'medical school' whereby applicants who are citizens of the State of New Jersey are given preference to equally qualified or more qualified applicants who are citizens of other States."
The amended complaint prays for injunctive relief against the College authorities' preferential admission policy and seeks to have the ...