Catherine J. Healy v. F. Don James, Individually and as President of Central Connecticut State College

J. JOSEPH SMITH, Circuit Judge

(dissenting):

I respectfully dissent.

In September, 1969 a notice appeared in the school newspaper of Central Connecticut State College announcing an organizational meeting of a local chapter of the Students for a Democratic Society. At this meeting officers were elected and those present voted to request the administration of the College to grant official recognition to- the organization. On September 17, 1969 the students involved submitted a written memorandum setting forth the purposes and goals of the group to the Dean of Students as required by the College’s regulations.

What follows is a brief statement of purpose of the group of students at CCSC who would like to form a local chapter of Students for a Democratic Society:
(1) Because the university is intended to be the arena of education, where there is an unfettered exchange of ideas, SDS would provide a forum of discussion and self-education for students developing an analysis of American society and institutions, including higher education, and the world situation in general.
*1133(2) Because it is felt that ideas without parallel in deeds are empty and ephemeral, and that no area of life exists in a vacuum and unrelated to all other areas of life, SDS would provide an agency for integrating thought with action so as to bring about constructive changes in the university, in American life, and [in] the world.
(3) Because of the responsibility of all peoples for the welfare of others, SDS would provide a coordinating body for relating the problems of leftists students and other groups, such as the student body as a whole, the working class, the black populace or whatever other individuals or groups in fact or potentially in accord with the purposes of the CCSC chapter of SDS.
Officers: Lawrence Stub, Frank Sic-cardi. Procedures: (1) meetings once a week. (2) membership completely open to students and faculty. (3) voluntary dues. (4) elections held regularly. (5) CCSC Students for a Democratic Society are not under the dictates of any National organization.

As the majority opinion relates, after a long series of hearings lasting over some months, the application was finally rejected by the President of the College in May, 1970.

Before examining the important first amendment issues raised by this case, we should be clear as to the precise consequences of the appellee’s actions now approved by this court. Contrary to the repeated assertions in the majority’s opinion, this is not a situation where the question is merely whether or not the students will receive “official” recognition for their organization. The record clearly shows that what is at issue is whether these students will be permitted to use the buildings and grounds of the campus to conduct meetings and discussions and is thus analogous to an attempt by the authorities to prevent a particular group or individual from speaking on the school premises.1 The constitutional problems which this action presents are clearly, therefore, of consequence.

We may well begin with Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). There the three petitioners, ranging in age from thirteen to sixteen, protested the Yiet Nam war by wearing black armbands to school in defiance of a ban on armbands adopted two days earlier by school officials in anticipation of the protest. The petitioners then brought an action pursuant to 42 U.S.C. § 1983 seeking to enjoin on first amendment grounds further discipline of the students for violating the no-armband rule. The Court found for the students holding that their “silent, passive expression of opinion” was an exercise of “primary First Amendment rights” which could be prevented only upon a showing that engaging in this conduct “would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”2

The holding in Tinker articulated for the first time a broad educational philosophy based on the first amendment.3 The Court quoted at length from Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967), where it had struck down a loyalty oath required of all state teachers:

“The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” [Citations omitted.] The classroom is peculiarly the “marketplace of ideas.” The Nation’s future depends upon leaders trained through wide exposure to that robust exchange *1134of ideas which discovers truth “out of a multitude of tongues [rather] than through any kind of authoritative selection.”

School authorities may never merely suppress “feelings with which they do not wish to contend,” nor may they treat students as “closed-circuit recipients” of the dominant views of the community. The Court emphasized that personal communication among students outside the classroom is one of the activities to which the schools are dedicated. Noting that the exercise of fundamental freedoms often entails risk, the Court said a school may not silence its students simply “to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” “In short, the Court adopted the view that the process of education in a democracy must be democratic.” 4

It is perhaps arguable that a college or university might deny the use of its facilities to any political organization, although the courts have in recent years greatly expanded the exercise of first amendment rights on other types of public or even privately owned premises.5 The record below, however, indicates that the College granted recognition, and thus the use of its facilities, to other political groups and organizations. Once approval has been granted to some, it cannot be denied to others “according to orthodoxy or the popularity of their political or social views,” for to do so would be “blatant political censorship.” 6

There are apparently no reported cases in the federal courts dealing with the precise issue raised here.7 As noted above, the closest analogy would appear to be those cases involving attempts to prevent a particular speaker from appearing on the campus. As Professor Wright has pointed out, there is not a single reported case in recent years where a speaker-ban has been upheld.8

The actions of the appellees do, by their very nature, constitute a “prior restraint” upon the freedom of speech and assembly. As the Court noted in Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963): “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” [Cf. Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931); Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 *1135(1971); New York Times v. United States, 403 U.S. —, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).] In order to withstand constitutional attack, prior restraints must be narrowly drawn so as to suppress speech or assembly which presents a “clear and present danger” of a substantial evil. Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1950), or at least in the present context, the likelihood that it would “materially and substantially disrupt the work and discipline of the school.” Tinker v. Des Moines Independent Community School District (supra 393 U.S. at 513, 89 S.Ct. at 740). Contrary to the position taken by the majority, it appears to me to have been established beyond doubt that the burden of providing a justification for this type of prior restraint rests squarely on the shoulders of those who seek to impose it. The appellees have not come forward with any evidence as to a threat of substantial disruption of the operation of the school by the appellants.

When the College President rejected the approval by the Student Affairs Committee of the applicants as a local chapter under the SDS label as an approved campus club, the applicants were effectively denied freedom of on-campus association and speech. It is true, as the majority makes plain, that the applicants’ counsel did try the patience of Dean Judd as hearing officer, but this is not sufficient ground for denying them the right to be heard on campus.

Of course, if these applicants took part in violent or disruptive activities they would be subject to collegiate discipline as well as criminal prosecution, and any recognition could be withdrawn for cause. The record, however, shows no such activity, but only a fear of some such possibility, based on activities of others in other places at other times, and on the suspect “philosophy” of the applicants.

Those charged with the governance of our educational institutions have in recent years been under increasing pressure from forces now at work on the fabric of American society. These conflicting demands have been particularly intense in the state college and university systems where administrators are directly responsible to the political process. Yet one would hope that educators would be among the first to recognize how essential it is in such periods of stress to hold fast to the rule of law. If support for basic constitutional liberties is weakened on the nation’s campuses, they will not long maintain their viability in society as a whole. Misguided, immature, unpopular groups, such as this may be, provide the acid test of the genuineness and strength of our freedoms. The instincts and action of the Student Affairs Committee were quite in accord with our constitutional principles, and might better have been adopted on review.

I would, therefore, reverse and remand the case to the district court with instructions to grant the injunctive relief sought by appellants.

APPENDIX

CENTRAL CONNECTICUT STATE COLLEGE

New Britain, Connecticut

STATEMENT ON RIGHTS, FREEDOMS AND RESPONSIBILITIES OF STUDENTS

PREAMBLE

Academic institutions exist for the transmission of knowledge, the pursuit *1136of truth, the development of students and the general well-being of society. In line with this purpose, the college has the duty to protect the indispensable freedoms of inquiry and expression and furthermore has the responsibility to encourage all of its members in developing the capacity for critical judgment in their sustained and independent search for truth.

The formulation of detailed procedures for securing the student’s freedom to learn is the responsibility of each institution and must be in harmony with the educational purpose of the institution and will vary from campus to campus. The most basic concept of order or government is expressed as policy in order to allow a community to carry out its functions. The responsibility for such government becomes the responsibility of each individual in that community.

I. IN THE CLASSROOM

A. Right to Freedom of Expression

Each student is free to take reasoned and reasonable exception- — without interference — to data and views presented in any course and free from arbitrary dismissal from that course. It shall be understood that part of any course content may involve development of the ability to express scholarly opinions. It shall also involve development of motivation to learn, guidance in independent study and encouragement of the student to develop his fullest potential. The student’s responsibility is to exercise his freedom of expression within orderly procedures consistent with the situation and in a manner that reflects thought, scholarly analysis and knowledge of the course material.

B. Right to Adequate Instruction

Each student has the right to be instructed by a professor who presents course material relevant to his discipline and maintains established standards for academic performance. Moreover, each student has a right to professors who are adequately prepared for class and accessible for individual conferences. It is the responsibility of the student to profit from adequate instruction, seeking individual help when needed and preparing before class so that he may fully understand the nature of the material presented.

C. Right to Proper Academic Evaluation

Each student has the right to be evaluated entirely upon the basis of his academic performance and not on opinion or conduct or matters not related to academic standards. This right shall be guaranteed by orderly, clearly defined procedures. Each student has the right to see and have explained to him evaluated material so that he can know his strong and weak points. It is the student’s responsibility to know the basis for evaluation and to understand the procedures.

II. STUDENT RECORDS AND DISCLOSURE

A. Institutions shall have a carefully considered policy as to the information which should be a part of a student’s permanent educational record and as to the conditions of its disclosure. To minimize the risk of improper disclosure, academic and disciplinary records shall be separate and the conditions of access to each shall be set forth in an explicit policy statement. Transcripts of academic records shall contain only information about academic status. Data from academic, disciplinary, . and counseling files shall not be available to unauthorized persons on campus or to any person off campus without the express consent of the student involved except under legal compulsion.

B. Academic records and recommendations are permanently on file at the college. No records shall be kept *1137which reflect the political activities or political beliefs of students. Provision shall also be made for routine destruction of disciplinary records after seven years from graduation. Administrative staff and student personnel officers shall respect confidential information about students which they acquire in the course of their work.

C. Disciplinary records of students who leave the college without graduating may be saved for no more than seven years for reference in the event a student applies for reentry to the institution.

D. Information about student views, beliefs, and political associations which professors acquire in the course of their work as instructors, advisors, and counselors should be considered confidential. Protection against improper disclosure is a serious professional obligation. Judgments of ability and character may be provided under appropriate circumstances, normally with the knowledge or consent of the student.

III. RIGHTS AND OBLIGATIONS RELATING TO DUE PROCESS

A. Except for reasons related to the physical or emotional safety of students, faculty, or college property, college sanctions against individuals accused of violations of college regulations, local, state or federal laws shall not be applied until the individual is convicted of such violation.

B. The college shall define its own regulations as clearly as possible and publish them in a form which is readily accessible to all students. It is the responsibility of the student to familiarize himself with regulations of the college. The jurisdiction of faculty or student judicial boards, the disciplinary responsibilities of college officials and the legal disciplinary procedures, including the students’ right to appeal a de-cisión, shall be clearly formulated and communicated in advance. The student shall be as free as possible from imposed limitations that have no direct relevance to his education.

C. An individual accused of a breach of college regulations shall be informed of his rights by a college official and presumed innocent until proven guilty. The accusing party shall have the burden of proving such guilt. No form of harassment shall be used by institutional representatives to coerce admissions of guilt or information about conduct of other suspected persons.

D. Except under emergency circumstances, premises occupied by students and the personal possessions of students shall not be searched unless appropriate authorization has been obtained. For premises such as residence halls controlled by the institution, an appropriate and responsible authority shall be designated to whom written application shall be made before a search is conducted. The application shall specify the reasons for the search and the objects or information sought. The student shall be present, if possible, during the search. For premises not controlled by the institution, the ordinary requirements for lawful search shall be followed.

E. The college has the responsibility for establishing adequate judicial procedures for students accused of infractions. The accused has the right to challenge the impartiality of the judicial agent. The judicial process shall be such that students have the right to appeal not only disciplinary action deemed unwarranted but also a college regulation or policy considered unjust. The decision of the appeal court shall be final, subject only to the student’s appeal to the President of the College or ultimately to the Board of Trustees.

F. A student accused of violating college regulations has the right to *1138seek the aid of any member of the college community to aid in his defense.

G. Sanctions shall be fairly and impartially applied and not in violation of the student’s right to proper academic evaluation.

IV. OFF-CAMPUS FREEDOM OF STUDENTS

A. Exercise of Rights of Citizenship —College students are both citizens and members of the academic community. As citizens, students shall enjoy the same freedom of speech, peaceful assembly, and right of petition that other citizens enjoy and, as members of the college community, they are subject to the obligations which accrue to them by virtue of this membership. Faculty members and administrative officials shall insure that institutional powers are not employed to inhibit such intellectual and personal development of students as is often promoted by their exercise of the rights of citizenship both on and off campus.

B. Activities of students may upon occasion result in violation of law. In such cases, college officials shall be prepared to apprise students of sources of legal counsel and may offer other assistance. Students who violate the law may incur penalties prescribed by civil authorities, but college authority shall never be used merely to duplicate the function of civil laws. Only where the college’s interests as an academic community are distinct and clearly involved shall the special authority of the college be asserted. The student who incidentally violates college regulations in the course of his off-campus activity, such as those relating to class attendance, shall be subject to no greater penalty than would normally be imposed. College action shall be independent of community pressure.

V. ON CAMPUS FREEDOM OF STUDENTS

If the individual rights of a student are to be preserved, certain standards must be maintained in student affairs.

A. Care shall be taken in the establishment and organization of campus groups so that the basic rights, freedoms and responsibilities of students will be preserved.

B. Student organizations shall submit a clear statement of purpose, criteria for membership, rules of procedures and a list of officers as a condition of institutional recognition. They shall not be required to submit a membership list as a condition of institutional recognition.

C. Membership in campus organizations shall be limited to matriculated students (day or evening) at the college. Membership shall not be restricted by race, religion or nationality. The members shall have sole power to determine organization policy consistent with the regulations of the college.

D. Each organization is free to choose its own adviser. Advisers to organizations shall advise but not control the organizations and their policies.

E. College students and student organizations shall have the right to examine and discuss all questions of interest to them, to express opinion publicly and privately, and to support causes by orderly means. They may organize public demonstrations and protest gatherings and utilize the right of petition. Students do not have the right to deprive others of the opportunity to speak or be heard, to invade the privacy.of others, to damage the property of others, to disrupt the regular and essential operation of the college, or to interfere with the rights of others.

*1139F. Through the student government organization, college policy committees, or other accepted college procedures, students shall have the right of and responsibility for participating in the formulation and application of college policy. The role of the student government and both its general and specific responsibilities shall be made explicit, and the actions of the student government within the areas of its jurisdiction shall be reviewed only through orderly and prescribed procedures. The procedure for determining college policy shall be clearly defined and made accessible to students in written form.

G. Students shall be allowed to invite and to hear any person of their own choosing. Those routine procedures required by a college before a guest speaker is invited to appear on campus shall be designed only to insure that there is orderly scheduling of facilities and adequate preparation for the event, and that the occasion is conducted in a manner appropriate to an academic community. The college control of campus facilities shall not be used as a device of censorship. It shall be made clear to the academic and larger community that sponsorship of guest speakers does not necessarily imply approval or endorsement of the views expressed, either by the sponsoring group or the institution.

H. Student publications and the student press are a valuable vehicle in establishing and maintaining an atmosphere of free and responsible discussion and of intellectual exploration on the campus. They are a means of bringing student concerns to the attention of the faculty and the institutional authorities and of formulating student opinion on various issues on the campus and in the world at large.

Institutional authorities, in consultation with students and faculty, have a responsibility to provide written clarification of the role of the student publications, the standards to be used in their evaluation, and the limitations on external control of their operation. At the same time, the editorial freedom of student editors and managers entails corollary responsibilities to be governed by the canons of responsible journalism, such as the avoidance of libel, indecency, undocumented allegations, attacks on personal integrity, and the techniques of harassment and innuendo. As safeguards for the editorial freedom of student publications, the following provisions are necessary:

1. Student publications and student press shall be free of censorship and advance approval of copy. Its editors and managers shall be free to develop their own editorial policies and news coverage.

2. Editors and managers of student publications and the student press shall be protected from arbitrary suspension and removal because of student, faculty, administrative, or public disapproval of editorial policy and content.

3. The Editorial Board responsible for the appointment of editors and managers shall be the agency responsible for their removal. An Ad Hoc Publication Board, composed of and elected by students, shall have ultimate jurisdiction over all student publications if and when questions of responsible journalism arise.

4. All college published and financed student publications shall explicitly state on the editorial page that the opinions there expressed are not necessarily those of the college or student body.

The above statement was approved by the faculty May 19, 1969.

. As noted in the majority opinion, the appellees attempted to prevent the students from meeting in the school cafeteria.

. See, Burnside v. Byars, 363 F.2d 744 (5 Cir. 1966).

. Since Tinker was concerned with high school students where the Court has held, in other contexts, that first amendment rights may be more limited (cf. Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), it follows a for-*1134tiori that the scope of first amendment rights guaranteed to college students is at least as great as those accorded to persons of a more tender age. The average college student is more than 21 years old. Soglin v. Kauffman, 295 F.Supp. 978, 988 (W.D.Wisc., 1968).

. Michelman, “The Supreme Court, 1968 Term,” 83 Harv.L.Rev. 1, 159 (1969).

. Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) (grounds of the state capital) ; Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267 (1951) (park) ; Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946) (company town) ; Amalgamated Food Employees v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed .2d 603 (1968). See, Note, “Regulation of Demonstrations,” 80 Harv.L.Rev. 1773 (1967).

. Brooks v. Auburn University, 296 F. Supp. 188, 194 (M.D.Ala., 1969).

. In Saxton v. Board of Regents, No. 123-165, Cir. Ct. Dane County, Wisconsin, May 21, 1968 (unreported), a state trial court upheld the denial of official recognition of an SDS chapter.

. “A speaker cannot be refused permission to speak on campus because he has been convicted of a felony [Brooks v. Auburn University (supra)] or is under indictment for murder [Student Liberal Federation v. Louisiana State University, Civ. No. 69-300, E.D.La., Feb. 15, 1968 (unreported)] or because he urges or advocates violation of the laws [Brooks v. Auburn University (supra)] or because he is an admitted member of the Communist Party. [Egan v. Moore, 20 A.D.2d 150, 245 N.Y.S.2d 622 (1963), aff’d 14 N.Y.2d 775, 250 N.Y.S.2d 809, 199 N.E.2d 842 (1964).] A speaker may not be required to promise that he will not use his speech to publicize the activities of any ‘subversive, seditious, and un-American organization.’ [Snyder v. Board of Trustees, 286 F.Supp. 927 (N.D.Ill., 1968).] A forum cannot be constitutionally denied to ‘subversive elements’ [Danskin v. San Diego Unified School District, 28 Cal.2d 536, 171 P.2d 885 (1946)] nor even to groups seeking overthrow of *1135the government by force and violence [A.C.L.U. v. Board of Education, 55 Cal. 2d 167, 10 Cal.Rptr. 647, 359 P.2d 45 (1961)]. It will not do to limit speakers to those who ‘clearly serve the advantage of education’ or to lease the auditorium only for programs ‘determined to be compatible with the aims of [the college] as an institution of higher learning.’ [Dickson v. Sitterson, 280 F.Supp. 486 (M.D.N.C., 1968).]” Wright, “The Constitution on the Campus,” 22 Vand.L.Rev. 1027, 1051, 1052 (1969).