(dissenting).
I respectfully dissent for the following reasons:
Statutes should be construed to uphold their constitutionality whenever possible. I question whether the majority has approached this case with that precept in mind.
This act is part of a legislative plan to support higher education by delegating powers to an administrative agency. It should not be interpreted as though it were a penal or licensing statute.
The concept of morality is not so vague that reference to a misdemeanor involving moral turpitude denies the protection of due process.
Language referring to disruption and the disturbance, interference with, or prevention of the orderly affairs of an institution of higher learning is not vague in context and when tested by the requirements of due process.
In considering overbreadth, the majority has adopted an overkill response which is unwarranted by the remote possibility of any chilling effect to First Amendment freedoms.
Finally, I believe that this statute is susceptible of a construction that would avoid any constitutional questions. I would therefore abstain from ruling upon it until after the issues here involved have been passed upon by the state courts.
I. Statutes should be construed to uphold their constitutionality
In this case, the majority completely overlooks the “cardinal principle” 1 that whenever possible, statutes should be construed so as to uphold their constitutionality: United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 1298, 28 L.Ed.2d 601 (1971). This is equally true of state legislation, and the Supreme Court has frequently said that it will not assume in advance that a state will construe its laws so as to bring them into conflict with the *1215Federal Constitution: Local No. 8-6, Oil, Chemical and Atomic Workers International Union, AFL-CIO v. Missouri, 361 U.S. 363, 370, 80 S.Ct. 391, 396, 4 L.Ed.2d 373 (1960).
Although a statute should not be invalidated on “slight implication” and “vague conjecture”, Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435 (1960), the majority has taken just the opposite tack. It has stretched language, ignored context, and relied on whimsical hypotheticals to achieve its results.
II. Act is part of a legislative plan to finance higher education, not a penal statute.
The majority opinion holds that subsections (a) (1), (a) (2), and (a) (3) are void because their terms are vague— so vague that they violate the due process clause of the Constitution.
In my judgment the basic mistake which the majority makes is to treat these subsections2 as though they were criminal statutes, subject to a narrow, precise construction. Actually, they are no such thing. These subsections are part of a legislative plan to provide financial assistance for college students. A consideration of due process requirements begins with examining the exact nature of the government function involved as well as the private interest to be affected: Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970).
Pennsylvania’s plan to help provide educational opportunities for its residents began in 1963 with a loan-guarantee program. This was expanded in 1966 to provide scholarship support to able, needy, capable, and deserving students.3 Day to day operations of both programs are managed by a state agency, the Pennsylvania Higher Education Assistanee Agency, usually referred to as PHEAA.
As of September 25,1970, PHEAA had made 80,599 scholarship awards for the 1970-71 academic year amounting to $49,627,840, and there had been 48,349 loans guaranteed totalling $54,384,270. Since the program’s inception, 240,731 student loans amounting to $225,612,683 have been guaranteed. To guide PHEAA, the legislature created guidelines and standards. Thus, there are certain eligibility requirements, including citizenship, residency, educational attainment, continuity, and enrollment. The applicant must meet the qualifications of financial need, character and academic promise, as well as academic achievement, established by PHEAA.4
The statute provides that a scholarship recipient may attend any institution approved by PHEAA. Awards are to be made without regard to race, creed, color, sex, national origin, or ancestry, and the money may be used for tuition, room, board, books, and fees. A student may enroll in either a five-year work-study program or a four-year course. A student who is unable to demonstrate sufficient financial need in one year may apply in subsequent years. Provision is made for PHEAA to allocate funds by categories: one based on potential performance, another on need and actual performance, and a third on the degree of need. PHEAA is allowed discretion in the amount to be awarded to a student and may also adjust the time limits allowed for loan-repayments. The legislature realized that there might be fraudulent applications. It empowered PHEAA to investigate misrepresentations and provided criminal penalties.
Involved in this suit is another section enacted to guide PHEAA in the exercise of its discretion, a section which begins, “The agency may deny all forms *1216of financial assistance * * * ” (emphasis added). Plainly these are not words of proscription, but a grant of discretion. This is not a penal statute. There is no “prohibition” 5 in this section. There is no “heavy penalty” 6 and nothing which will of necessity “trigger” 7 the loss of financial aid. There is no “obvious parallel” between this statute and those which provide fines or jail for breach of the peace and disorderly conduct.8
Rather, the obvious parallel is to Title V of Public Law 90-575 enacted October 16, 1968, 20 U.S.C. § 1060. This act provides that for a period of two years a student shall receive no financial assistance from the federal government if he has been convicted of a crime involving force, disruption, or seizure of institution property so that officials or students are prevented from engaging in their duties or pursuing their studies. The same suspension is provided for students who wilfully refuse to obey a lawful regulation or order of an educational institution if such refusal is of a serious nature and contributes to a substantial disruption of the administration of the institution. It is apparent that the Pennsylvania legislature relied heavily on the prior Congressional enactment although it made the withholding of assistance discretionary rather than mandatory. Even the identical provision, “Nothing in this section shall be construed to limit the freedom of any student to verbal expression of individual views or opinions,” is found in both statutes. Another parallel, but less obvious, is found in Public Law 89-358, enacted March 3, 1966, 38 U.S.C. § 1675. It provides that educational assistance for veterans shall be discontinued if there is unsatisfactory conduct based on the regular standards and practices oí the institution.
• The words which this court says offend due process were intended to guide an administrative agency in determining whether tax dollars should be awarded to a particular student or made available to another student who would otherwise not receive assistance. These words are not penal in nature. The legislature of Pennsylvania demonstrated that it knew perfectly well how to enact penal legislation by doing so with regard to false applications and fraudulent pretenses. Penal statutes and those which make a direct attempt to limit or license the exercise of constitutional freedoms require greater precision than do the guidelines created by a legislative body for an administrative agency. Such legislation should be given a fair meaning, bearing in mind the purpose of the act: Black v. Magnolia Liquor Company, 355 U.S. 24, 26, 78 S.Ct. 106, 109, 2 L.Ed.2d 5 (1957). Courts should not assume that an administrative agency will exercise its discretion improperly: Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 46, 86 S.Ct. 1254, 1261-1262, 16 L.Ed.2d 336 (1966). The validity of delegated discretionary powers does not rest upon the enumeration of precise standards or specific guiding factors: United States v. Baker, 429 F.2d 1344, 1347 (7th Cir., 1970).
PHEAA must dispense millions of dollars of taxpayer’s money and choose which among thousands of applicants are “deserving” and which are most likely to help the Commonwealth of Pennsylvania “achieve its full economic and social potential” because they are persons of “character”. Viewed as a part of a legislative plan to allocate state money, the subsections in question do not offend the requirements of due process.
III. The concept of morality is not vague.
In reaching its decision that almost all of subsection (a) is unconstitutionally vague, the majority considers the various terms in each subparagraph: *1217“moral turpitude”, “disruption”, and “disturbing, interfering with or preventing.”
The first to be analyzed is “moral turpitude,” which is used in the context,
The agency may deny all forms of financial assistance to any student:
1. Who is convicted by any court of record of a criminal offense * * which, under the laws of the United States or Pennsylvania, would constitute a misdemeanor involving moral turpitude * * * ” (emphasis added)
The majority correctly interprets the words “misdemeanor involving moral turpitude” to mean a misdemeanor involving immorality, but then says that the concept of immorality is not one that has the precision which due process requires.
No cases are cited for this holding. Instead, reliance is placed on the dissent in Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951), a ease involving the deportation of an alien. The precise ruling in Jordan, however, was that the term “moral turpitude” was not vague and that its use in the Immigration Act did not offend constitutional requirements. In Ramirez v. United States Immigration and Naturalization Service, 134 U.S.App.D.C. 131, 413 F.2d 405 (1969), the Court of Appeals for the District of Columbia held that any challenge to the term “moral turpitude” on the grounds of vagueness was foreclosed by Jordan. The Supreme Court denied certiorari: 396 U.S. 929, 90 S.Ct. 264, 24 L.Ed.2d 226 (1969).
In Jordan, it was observed that “moral turpitude” has deep roots in the law, has been interpreted in a variety of factual situations, and has' long been part of the statutory language of the United States. In explaining its holding, the Court also said:
We have several times held that difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness. * * * Impossible standards of specificity are not required. * * * The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. * * *
We conclude that this test has been satisfied here. Whatever else the phrase ‘crime involving moral turpitude’ may mean in peripheral cases, the decided cases make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude. We have recently stated that doubt as to the adequacy of a standard in less obvious cases does not render that standard unconstitutional for vagueness. * * *
The term “moral turpitude” was used at common law and has been used in statutes enacted by many of the states. There are a glut of decisions on the subject.9 Although some inconsistencies appear in marginal areas, the sheer weight of eases lends certainty as to many offenses. A random sampling shows that abortion, adultery, conspiracy, embezzlement, extortion, fraud, keeping a disorderly house, larceny, receiving stolen property, tax evasion, and the use of the mails to defraud have been always held to be offenses involving moral turpitude. On the other hand, carrying a concealed deadly weapon and drunken driving have been held not to be.
Of course, we are only concerned with those offenses which would constitute misdemeanors involving moral turpitude under the laws of the United States or *1218Pennsylvania. Pennsylvania, like many other states, has legislated in the field of morals through both criminal10 and licensing laws. The courts of Pennsylvania have found these laws to be constitutional, despite the attack that they were vague. This court has agreed, and the Supreme Court has denied certiorari or affirmed per curiam.
For example, the Act of June 3, 1953, P.L. 277, 18 P.S. § 4532, makes it a misdemeanor to corrupt the morals of any child. In Commonwealth v. Randall, 183 Pa.Super. 603, 133 A.2d 276 (1957), the Superior Court, citing Jordan, rejected the argument that the word “morals” had no definite and well-settled meaning. The Supreme Court of the United States denied certiorari, 355 U.S. 954, 78 S.Ct. 539, 2 L.Ed.2d 530 (1958). More recently in Heard v. Rizzo, 281 F.Supp. 720, 741-742 (1968), a three-judge panel of this court referred to Randall as a “landmark ease,” noted references to “generally accepted moral standards of the community” and “common standards of morality,” and said, “The Pennsylvania Superior Court in Randall concluded that the ‘Corrupting the Morals of a Minor’ statute was sufficiently clear and definite to meet the test of constitutionality. We agree in view of the above interpretation of this statute by the Pennsylvania courts.” This case was affirmed per curiam by the Supreme Court, 392 U.S. 646, 88 S.Ct. 2307, 20 L.Ed.2d 1358 (1968).
Section 493 of the Pennsylvania Liquor Code, the Act of April 12, 1951, P.L. 90, 47 P.S. § 4-493 prohibits “lewd, immoral, or improper entertainment” in establishments licensed by the Pennsylvania Liquor Control Board. In Tahiti Bar, Inc. Liquor License Case, 395 Pa. 355, 150 A.2d 112 (1959), it was held that these terms were not too vague to satisfy the requirements of the Fourteenth Amendment. An appeal to the Supreme Court of the United States was dismissed for want of a substantial federal question, 361 U.S. 85, 80 S.Ct. 159, 4 L.Ed.2d 116 (1959).
Congress has also legislated in the field of morality,11 even to the extent of making it unlawful to place indecent or immoral materials on tobacco packages.12
In view of the many state cases, the Supreme Court’s holding in Jordan, its recent refusal of certiorari in Ramirez, the appellate rulings by Pennsylvania in Randall and Tahiti, the Supreme Court’s refusal of certiorari in both, our holding in Heard and the Supreme Court’s per curiam affirmance of that case, I am hard put to understand how the majority can say that the term “moral turpitude” is vague under the laws of the United States or Pennsylvania.
If we assume for the sake of argument, however, that there might be a question about whether some misdemeanor involves immorality or not, it does not follow that the subsection here questioned is unconstitutional. As set forth in Jordan v. De George, supra,
We have several times held that difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically *1219render a statute unconstitutional for indefiniteness. * * *
More recently, the same idea has been expressed in a concurring opinion in United States v. Vuitch, supra. There, a doctor was charged with violating a District of Columbia statute which makes abortion a crime unless “the same were done as necessary for the preservation of the mother’s life or health.” The District Court, 305 F.Supp. 1032, dismissed the indictment on the grounds that the word “health” was unconstitutionally vague. The Supreme Court reversed, holding the word has been and should be interpreted to refer to both psychological and physical well-being, that physicians routinely are called upon to make decisions concerning a patient’s health, and that the term was therefore not vague. In concurring, Mr. Justice White pointed out no one of average intelligence could believe that under the statute abortions not dictated by health considerations were legal. Thus, even if the term “health” was unconstitutionally vague, the statute would not be void on is face because it reaches a class of cases in which the meaning of “health” is irrelevant, cases in which no possible vagueness problem could arise. He concluded that in the absence of a factual record, the claim of vagueness should be dismissed.
Subsection (a) (1) reaches a class of cases about which persons of reasonable intelligence could not differ.13 Therefore, in the vast majority there will be no possible vagueness, and this subsection should only be held unconstitutional on the basis of some factual application.
IV. “Disruption" is not a vague term.
Subsection (a) (2) provides that PHEAA may deny financial assistance to any student who has been expelled for refusal to obey “a lawful regulation or order of any institution of higher education, which refusal, in the opinion on the institution, contributed to a disruption of the activities, administration or classes of such institution.”
The majority says that (a) (2) is vague because a student will have no way to know what an institution may consider to be a disruption or whether a given course of conduct contributed to a disruption. In addition, the majority states:
“It is perfectly plain that the ap¡plication of (a) (2) frequently will affect protected First Amendment activities, such as demonstrations and rallies.”
Here the majority puts a rabbit into the hat.
While it is true that all First Amendment rights occupy a favored status and that demonstrations and rallies are frequently the forum in which those rights are exercised, the Supreme Court has made it perfectly clear that demonstrations and rallies are not in themselves protected activities: Barker v. Hardway, 394 U.S. 905, 89 S.Ct. 1009, 22 L.Ed.2d 217 (1969).
There is no constitutional right to hold a demonstration near a court house in violation of a statute which proscribes conduct designed to interfere with the administration of justice: Cox v. State of Louisiana, 379 U.S. 559, 562-563, 85 S.Ct. 476, 479-480, 13 L.Ed.2d 487 (1965). Picketing and parading are subject to regulation even though intertwined with expression and association: Cameron v. Johnson, 390 U.S. 611, 617, 88 S.Ct. 1335, 1358, 20 L.Ed.2d 182 (1968).
A demonstration does not throw a cloak of immunity around illegal activity. In United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), the defendant was convicted for burning his draft card during a demonstration against the war in Vietnam. Chief Justice Warren pointed out, “This Court has held that when ‘speech’ and ‘non-speech’ elements are combined in the same course of conduct, a sufficiently *1220important governmental interest regulating the non-speech element can justify incidental limitations on First Amendment freedoms.”
Not all conduct intended to communicate an idea is protected by the Constitution. A speaker may not incite a crowd to riot: Feiner v. New York, 340 U.S. 315, 321, 71 S.Ct. 303, 306, 95 L.Ed. 295 (1951). Abusive epithets, the so-called “fighting words”, are not within the protection of the Constitution: Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Obscenity is not: United States v. Thirty-Seven (37) Photographs, supra.
Subsection (a) (2) is not aimed at demonstrations, rallies or free speech. It is aimed at those who would disrupt the educational process for others, those who would drown out, throw out, or burn out. “ * * * conduct by the student * * * which for any reason * * * materially disrupts class work or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 513, 89 S.Ct. 733, 740, 21 L.Ed.2d 731 (1969). (emphasis added)
Subsection (c) of this statute provides, “Nothing in this section shall be construed to limit the freedom of any student to verbal expression of individual views or opinions.” Therefore, the only inhibition to First Amendment freedoms —if any—from subsection (a) (2) are those which transcend the written and spoken word. Subsection (a) (2) informs a student that if he disrupts (the word that is used in Tinker) by conduct which goes beyond verbal expression the activities of the institution which he has chosen to attend to the extent that it expels him, he may lose his financial support from Pennsylvania. There is nothing vague about expulsion from college. It is definite, drastic, and final.
Most institutions of higher learning have published rules and regulations which will provide a prospective student with a basis for judging the limits of acceptable conduct. To be significant so far as PHEAA is concerned, expulsion must be “lawful.” Among other things, that means that the institution must have followed its own procedures of which the student has full notice.
To expel or not to expel may require a certain amount of subjective judgment on the part of the institution. Subjective decisions, however, have always been the stuff of education. Based on institutional decisions which have no objective standards, some men become artists, while others are directed to commerce or even the law. Disciplinary discretion, that is, the power to decide when activities have been so disrupted that expulsion is warranted, does not seem beyond foreseeable expertise or basic fairness.
So far as six separate federal student assistance programs are concerned,14 Congress has made the educational institution the sole judge of acceptable conduct and behavior. I agree .that to do so is logical. I believe that the institution’s decisions in a high majority of cases will be fair, just, and in accordance with the standards of due process. I would hold that subsection (a) (2) is not facially void. If it is ever applied in an unconstitutional way by PHEAA, a reviewing court can correct the administrative error.
V. “Disturb, interfere with or prevent” are not vague when used in reference to orderly conduct of affairs of institutions of higher education.
Subsection (a) (3) provides that PHEAA may deny financial assistance to any student “who has been convicted in any court of record of any offense committed in the course of disturbing, interfering with or preventing * * * the orderly conduct of the activities, admin*1221istration or classes of an institution of higher education.”
The majority holds that the phrase “any offense committed in the course of disturbing, interfering with or preventing * * * ” is unconstitutionally vague because the language has no special technical or common law meaning. However, the operative words have frequently been construed individually or in other combinations.
“Disturb” means to throw into disorder or confusion: State v. McNair, 178 Neb. 763, 135 N.W.2d 463, 465 (1965). It means to distract, to interfere with the lawful enjoyment of a right. It is a word of common meaning: State v. Davis, 21 Ohio App.2d 261, 257 N.E.2d 79, 81 (1969). The words “interrupt and disturb” have been held not to be unconstitutionally vague. When used in conjunction with activities at a school, they warn a person of ordinary intelligence against substantially interfering with its operation and program: State v. Wiggins, 272 N.C. 147, 158 S.E.2d 37, 42 (1967), cert. denied, 390 U.S. 1028, 88 S.Ct. 1418, 20 L.Ed.2d 285 (1968).
In McAlpine v. Reese, 309 F.Supp. 136 (E.D.Mich.1970) 15 an ordinance prohibited wilfully and maliciously making any noise, disturbance, or improper diversion of school activities. The Court held that disturbance was not a vague word and that like every other term, it gained meaning from context, association and commonly understood usage.
In Cox v. State of Louisiana, supra, the Supreme Court approved as “precise” and “narrowly drawn” a statute which made it an offense to parade or picket with the intent of interfering with, obstructing, or impeding the administration of justice. This same language is used in an act referring to the federal judiciary, 18 U.S.C. § 1507, and a similar law has been adopted in Pennsylvania, the Act of June 24, 1939, P.L. 872, as amended, 18 P.S. § 4327.
The word “interfere” is also used in another federal statute, 29 U.S.C. § 158 (a) (1), referring to unfair labor practices. In that context it has been held to mean to come in collision, to clash, to be in opposition, or to run at cross purposes: NLRB v. Exchange Parts Company, 304 F.2d 368, 374 (5th Cir. 1962).
In Coppedge v. Franklin County Board of Education, 273 F.Supp. 289 (E.D.N.Car.1967), the Court stated appropriate steps should be taken to prevent interference with its order, explaining there was to be no “harassment, intimidation, threats, hostile words or acts, and similar behavior.”
People v. Del Toro, 155 Colo. 487, 395 P.2d 357 (1964), holds that “interfere” is not a vague and uncertain term but is well-defined and generally understood.
The word “prevent” means to hinder, impede, keep from, frustrate, stop, check, thwart or keep from happening or existing : Walker v. Equitable Life Assurance Society of U. S., 123 F.Supp. 306, 308 (E.D.Ill.1954). It is a word of common understanding: International Parts Corporation v. Federal Trade Commission, 133 F.2d 883, 886 (7th Cir. 1943).
In the context of (a) (3), these three words, disturbing, interfering, and preventing, gain certainty from their use with each other, from their connection to a conviction in a court of record, and from their reference to the “orderly” conduct of the activities, administration, or classes of an institution of higher education. Unfortunately, the majority overlooks all that precedes and all that follows the three words in question. These terms were not written in a vacuum, were not intended to be applied in a vacuum, and should not be considered by this court in a vacuum. They refer to the processes of an institution of higher *1222learning which cannot function if its administrators are locked out, its buildings burned down, its students intimidated, and the scholarly works of its faculty destroyed. The words, “disturb, interfere, and prevent,” carry no greater burden of ambiguity than is the lot of language generally. The combination in which they occur, and the context in which they came into being are powerfully suggestive even to the least sophisticated.
The majority holds that these words used with the modifying phrase “in the course of” make this subsection unconstitutionally vague because the language “might” be read to apply to the “planning stages” of an event which “disturbs” university activities.16 This is clutching at a straw. “In the course of” refers to the words that immediately follow, i. e., “disturbing, interfering with or preventing.” This subsection makes no reference to “planning stages.” While it is error to ignore “convicted in any court of record” and “the orderly conduct of the activities, administration or classes of an institution of higher learning,” it compounds the error to add words to the legislation for the purpose of bolstering an argument that it is unconstitutional.
The majority shows concern for the unfortunate student who might commit a traffic violation or fail to carry his draft card during the course of a disturbance, pointing out that such a student could lose his financial assistance if (a) (3) is literally followed. I suppose this is true, and it is exactly for this reason that Pennsylvania placed discretion in PHEAA’s hands. Had the legislature desired the unsparing, fanciful results envisioned by the majority, it would have eliminated the words which have been found to be vague. Thus, the statute could have directed the termination of all benefits to any student who had been convicted in any court of record of any offense, or who had ever been expelled. This language would be definite, and immune to any challenge of overbreadth. It is paradoxical that the legislative effort to protect students from the harsh consequences of their own mistakes brings this case before us.
I would consider all of (a) (3)—not just a part of it. When the words in question are read in context, they are not unconstitutionally vague.
VI. Subsection (a) will not chill First Amendment rights and should not be declared void per se
The majority opinion holds that subsections (a) (2) and (a) (3) are constitutionally overbroad. The doctrine of overbreadth is concerned with statutory language which deals with two classes of conduct: that which properly may be regulated by the state and that which may not be regulated because of constitutional guarantees. Courts strike at the evil in such a law by invalidating the unconstitutional applications as they arise, case by case, or if First Amendment freedoms are threatened, by declaring such a law void on its face and striking it down in toto.
My first criticism of the majority’s reasoning as to overbreadth is its failure to specify exactly which constitutional rights it sees as being endangered by subsections (a) (2) and (a) (3). This is important because not all overbroad statutes should be declared void on their face.17 Only those which threaten First Amendment freedoms should be treated in this summary fashion,18 and subsection (c) provides, inter alia, “ * * * nothing in this section shall be construed to limit the freedom of any student to verbal expression of individual views and opinions.” (emphasis added) Obviously, subsection (c) severely restricts any *1223threat to a student’s freedom of expression.
A declaration that a statute is void on its face is justified only by the favored status afforded First Amendment rights.19 Such holdings recognize that a threat of sanctions may pose as potent a deterrent to the exercise o.f the freedom of expression as the actual application of sanctions. It is this “chilling effect” of an overbroad statute which allows the departure from the more traditional method of judging constitutionality only in the light of an established factual situation at the behest of someone with standing to complain about it.20
Even a perfunctory analysis of the application of subsections (a) (2) and (a) (3) shows the possibility of any chilling effect is remote.
These subsections enable PHEAA to withhold financial support for a student who has been expelled or convicted in a court of record. If they are to be any deterrence, a student must consciously refrain from some conduct protected by the First Amendment in which he would have engaged except for the threat contained in (a) (2) or (a) (3), i. e., the chill must come from the fear that financial aid will be lost, not from the fear of expulsion or conviction.21 As a logical proposition, I find this possibility as difficult to accept as the notion that a swimmer would refrain from jumping into perilous water—not from fear of drowning, but from fear that if he does drown, his bathing suit might be taken from him.22
Three considerations have been suggested23 to guide courts in determining when a law which endangers First Amendment rights should be declared void on its face.
1. “Degree of Overbreadth * * * a law ought not to be struck down for overbreadth unless it lends itself to a substantial number of impermissible applications * * * While it is true that even the most carefully drawn statutes may have some chilling effect on privileged activity, * * * still the presumption must be that only substantially overbroad laws set up the kind and degree of chill that is judicially cognizable. -X * * »
2. “Area of Impact * * *
“ * x x ^ law may be substantially overbroad * * *, yet the area affected by the law taken as a whole may not to a substantial degree involve first amendment activities. For example, while conspiracy laws may affect people seeking to advocate viewpoints in the public forum, the activities affected in the great run of situations bear no color-able claim to first amendment protection. X X X
“Absent a proportionately significant impact on first amendment interests, an overbroad law may be expected to be valid in the great preponderance of applications. * * * ”
3. “Adjudicatory Alternatives—The third guideline concerns the availability of judicial techniques for excising speedily and effectively the potential bad applications of an overbroad law.”
If these guidelines are valid, these subsections should not be declared void on their face. First of all, they do not lend *1224themselves to a substantial number of impermissible applications. By their very nature they can only affect a narrow range of factual situations, i. e., students who have been expelled or convicted, who thereafter continue their studies at an approved institution, and who are otherwise eligible for financial assistance. Secondly, by reason of subsection (c) their area of impact on First Amendment freedoms is limited to conduct which goes beyond the spoken and written word. Finally, Pennsylvania law provides for appeals from adverse administrative agency decisions directly to an appellate court.24 Therefore, in the absence of an indication to the contrary there is a sufficient adjudicatory alternative to holding the act unconstitutional per se.
VII. Subsection (b) does not involve Fourth or Fifth Amendment rights.
Subsection (b) provides:
Each institution * * * shall immediately furnish to the agency, the name and address of any student who is a resident of the Commonwealth of Pennsylvania who is expelled * * * for the reasons set forth in clause (2) of subsection (a) * * *, or of whom the institution * * * has knowledge that he has been convicted of offenses as set forth in clauses (1) and (3) of subsection (a) * * *
Plaintiffs contend that compliance with these requirements would violate a student’s Fifth Amendment rights not to incriminate himself and his Fourth Amendment rights to be secure from unlawful search and seizures.
The majority rejects both arguments on the present state of the record: the Fifth Amendment claim because subsections (a) (2) and (a) (3) and part of (a) (1) have been dissected out earlier in the opinion, and the Fourth Amendment contentions on the basis that sufficient facts are not available to apply a test of reasonableness which the majority feels is appropriate.
While I concur that the plaintiffs’ prayers for relief should be refused as to subsection (b), the expansive implications I find in these portions of the majority opinion compel me to reject its language.
As to the Fifth Amendment, the majority says:
Plaintiffs’ claim that the reporting section violates the students’ Fifth Amendment right not to incriminate themselves must fail. So long as subsection (a) (2) and (a) (3) have been stricken from the statute, the only “compelled” authorization which the student gives the university is to forward information it has regarding his felony convictions to PHEAA. The institution, of course, may report such information whether the student authorizes it or not.
As applicable here, the Fifth Amendment states:
No person * * * shall be compelled in any criminal case to be a witness against himself * * *
I can see no Fifth Amendment problems with this statute. It does not compel a student to report anything to anyone.25 Subsection (b) imposes a duty only upon the institution, and a limited duty at that: to report a student’s name, address, and the fact of expulsion or conviction (if known). Moreover, the information is not required as part of a “criminal case,” 26 but to help PHEAA determine which among thousands of students *1225are deserving of financial support and which are not.
Were the Fifth Amendment to be involved in the considerations of subsection (b), I am mystified as to how the striking of (a) (2) and (a) (3) affects, as the majority implies, the rights it guarantees. If there is no violation of the Fifth Amendment to require the institution to report a conviction for arson, a felony, I do not see how requiring it to report expulsion for burning down a building and thus disrupting activities would violate those self-same rights.
Finally, if the institution “may report the student whether he authorizes it or not,” I wonder how the fact that the statute requires such a report changes anything with regard to the student’s Fifth Amendment rights.
As to the Fourth Amendment, the majority states * * *
We do not have sufficient undisputed facts on which to base a legal judgment * * * [since] resolution of plaintiffs’ claims in this area turn on a determination of whether the seizure of the institution’s records of a student compelled by the statute is reasonable.”
As I understand the majority, it is saying that PHEAA’s interests in knowing that a student has been convicted (and expelled if (a) (2) had not been invalidated earlier) must be balanced against the student’s constitutional rights not to be subjected to search and seizure.
As an abstract proposition, this sounds fair enough—but where is the search and seizure ? That which' is being reported to PHEAA—i. e., name, address, and fact of conviction—is not in the custody of the student, is not his property, and does not come from him. Any test of reasonableness is inapt because there is no constitutionally protected right against which to balance the usefulness to PHEAA of the required information. I consider it an amazing extension of the Fourth Amendment to suggest that a student’s right to be secure in his person, house, papers, and effects gives him a constitutionally protected right as to a college’s house, papers, and effects just because his name and address27 have been recorded there.
VIII. Abstention
Finally, I believe this is a case which we should not pass upon until after the courts of Pennsylvania have been given an opportunity to interpret subsections (a) and (b). They have never had this chance. Although the Supreme Court has made it clear that federal courts should decide federal questions, Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967), one of the “special circumstances” which will justify abstention is the susceptibility of a statute to a construction that would avoid or modify the constitutional question. Recently the Supreme Court has referred to a state court’s “remarkable job of plastic surgery upon the face of the ordinance” as a commendable effort to give the legislation a field of operation within constitutional limits: Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 153, 155, 89 S.Ct. 935, 940, 941, 22 L.Ed.2d 162 (1969).
The majority’s holding that subsection (a) (2) is overbroad turns on the meaning of the words, “lawful regulation or order.” 28 The majority reasons that a *1226private university’s regulations or orders might deny First Amendment freedoms and still be lawful because it has been held that the Fourteenth Amendment does not apply to the edicts of a private institution.
The leap from the proposition that private institutions need not afford Fourteenth Amendment due process to the assumption that First Amendment freedoms would therefore be denied to students by the courts of Pennsylvania spans a broad river of uncertainty, unmarked by any supporting stepping stones from Pennsylvania citations. They would be difficult to imagine. Pennsylvania’s own constitution, Article 1, Section 7, guarantees free press and free spech. The Supreme Court of Pennsylvania has voided legislation which threatened freedom of expression and failed to provide for due process: William Goldman Theatres, Inc., v. Dana, 405 Pa. 83, 173 A.2d 59 (1961). It has maintained that vigorous argument and debate are essential for the existence and preservation of the United States: Clark v. Allen, 415 Pa. 484, 495, 204 A.2d 42 (1964).
It seems to me, if faced with the question, the courts of Pennsylvania might very well construe “lawful” to mean in accordance with law, recognize that the First Amendment is part of the law of the land, and therefore that the phrase, “lawful regulation or order” refers to that which would not contravene constitutional guarantees of free speech.
In view of my belief that this act should not be read as a penal statute, is not vague when its words are viewed in light of the decided cases and in the context of their use, is not overbroad because the possibility of its chilling First Amendment freedoms is remote, and is susceptible to constitutional construction by the state courts, I would dismiss the complaint.
. United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 91 S.Ct. 1400, 1404, 28 L.Ed.2d 822 (1971).
. There are really two acts, but both have the same provisions. One refers to a loan guarantee plan and the other to a scholarship program.
. Act of January 25, 1966, P.L. (1965) 1546, Section 1, 24 P.S. § 5151.
. Act of January 25, 1966, P.L. (1965) 1546, Section 4, as amended, 24 P.S. § 5154.
. See majority opinion, page 1208, footnote 26.
. See pages 1207-1208. Compare analysis, p. 1203.
. See page 1206.
. See page 1204.
. Words and Phrases require more than 22 pages, plus its pocket parts, to list the cases defining the term—and there are cross references to additional uses of the words,
. Article V, Pennsylvania’s Penal Code of 1939, the Act of June 24, 1939, P.L. 872, 18 P.S. § 4501, etc., is entitled Offenses Against Public Morals and Decency. Included are 32 crimes, some of which are felonies and some of which are misdemeanors.
. It is a crime to transport a woman, coerce a woman, or coerce a minor to go from place to place in Interstate Commerce for prostitution, debauchery, or other immoral practice: 18 U.S.C. §§ 2421, 2422, and 2423. There are statutes on obscenity: 18 U.S.C. §§ 1461, 1462, 1463, 1464, and 1465. It is a crime to import immoral articles into the United States: 19 U.S.C. § 1305. The constitutionality of this statute was recently upheld in United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971). Aliens who have been convicted of a crime involving moral turpitude before admission shall be excluded from the United States, 8 U.S.C. § 1182(a) (9) or may be deported for committing such a crime after admission, 8 U.S.C. § 1251(4).
. 26 U.S.C. § 5723(e).
. For example, a conviction for corrupting the morals of a child under Pennsylvania law.
. 20 U.S.C. §, 1060 and 38 U.S.C. § 1675.
. In distinguishing McAlpine, the majority commented that tire statute under consideration in that case used the words “wilfully or maliciously,” thus rendering it more definite. Scienter may be assumed to be implicit if such a reading of a statute will avoid raising difficult constitutional problems which any other application would present: Garner v. Board of Public Works, 341 U.S. 716, 724, 71 S.Ct. 909, 915, 95 L.Ed. 1317 (1951).
. See majority opinion, pages 1208-1209.
. United States v. National Dairy Products Corp., 372 U.S. 29, 32, 36, 83 S.Ct. 594, 597, 600, 9 L.Ed.2d 561 (1963).
. Dissenting opinion, Mr. Justice White, Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 852.
. Cramp v. Board of Public Instruction of Orange County, Florida, 368 U.S. 278, 287, 82 S.Ct. 275, 281, 7 L.Ed.2d 285 (1961).
. Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965).
. There must be a full awareness and some thought process such as this: “I will engage in certain conduct though I know it may mean I will be expelled or convicted in a court of record.”
More thought process must follow, then, “No, I won’t because if I do I may lose my financial aid from PHEAA.”
. In an earlier part of its opinion, the majority cited Falcone v. Dantinne, 420 F.2d 1157 (3rd Cir. 1969), to prove that expulsion from school is a heavy sanction. The same language is relevant in weighing expulsion against possible loss of financial aid.
. The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 858-862.
. Such an appeal would be to the Commonwealth Court: Act of July 31, 1970, P.L. —, Art. IV, § 403, 17 P.S. § 211.403.
. The fact that he supplied his name and address to the institution does not bring the Fifth Amendment into play. Disclosure of name and address is an essentially neutral act: California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 1540, 29 L.Ed.2d 9 (1971).
. The term used in the Fifth Amendment. Witnesses are comxielled to incriminate themselves in non-criminal cases all the time.
. See California v. Byers, note 25, supra.
. (a) (2) authorizes PIIEAA to deny assistance to anyone who lias been expelled for the refusal to obey a lawful regulation or order, which refusal, in the opinion of the institution, contributed to a disruption of its activities, administration, or classes. Tlie report required in subsection (b) refers to expulsions under (a) (2). Thus an expulsion for some other reason need not be reported to PIIEAA.