Board of Higher Ed. of City of New York v. Students for Democratic

Society, Queensborough Community College Chapter,

60 Misc.2d 114, 300 N.Y.S.2d 983 (N.Y.Sup. 1969)

Supreme Court, Queens County, New York, Part III.

BOARD OF HIGHER EDUCATION OF the CITY OF NEW YORK, Plaintiff,

v.

STUDENTS FOR a DEMOCRATIC SOCIETY, QUEENSBOROUGH

COMMUNITY COLLEGE CHAPTER, et al., Defendants.

June 9 ,1969.

Action by board of education against students and student organization to

enjoin 'sit-in' at university library administration building. The Supreme

Court, Special Term, Queens County, Part III, Thomas S. Agresta, J., held

that board of education was entitled to permanent injunction enjoining

students and student organization from conducting 'sit-in' in fourth floor

of university library administration building where students and student

organization caused irreparable injury to the facilities of the university

and the remedy at law was inadequate in that a multiplicity of law actions

would be needed to give university any relief.

Injunction granted in accordance with opinion.

**984 *114

J. Lee Rankin, Corp. Counsel, New York City, for plaintiff (Charles D.

Maurer, Jamaica, Mark L. Palmer, New York City, of counsel).

**985

Alan H. Levine, New York City, for New York Civil Liberties Union and

defendant David Tivoli.

Martin Garbus, New York City, for New York Civil Liberties Union and all

other defendants other than Bruce Earl Aronson.

THOMAS S. AGRESTA, Justice.

This action for a permanent injunction

'1. Restraining and enjoining each and all of the defendants and all other

persons receiving notice of this injunction from congregating or assembling

within or adjacent to or threatening *115 to congregate or assemble within

or adjacent to any of the plaintiff's academic or administrative buildings,

recreation rooms or athletic facilities or in any corridors, stairways, doorways

and entrances thereto on the campus of Queensborough Community College,

in such manner as to disrupt or interfere with normal functions conducted by

plaintiff in such place or to block, hinder, impede or interfere with ingress to

or egress from any such properties by plaintiff's faculty, administrators,

students, employees or guests thereat;

2. Restraining and enjoining each and all of the defendants and all other

persons receiving notice of this injunction from creating or broadcasting

or threatening to create or broadcast on plaintiff's Queensborough

Community College campus or in the streets adjacent thereto, any loud or

excessive noise that hinders, impedes, prevents or interferes with the

conduct of normal activities by members of the College community;

3. Restraining and enjoining each and all of the defendants and all other

persons receiving notice of this injunction from employing force or

violence, against persons or property on plaintiff's Queensborough

Community College campus;

4. Restraining and enjoining each and all of the defendants and all other

persons receiving notice of this injunction from threatening to do or

inciting or counselling others or conspiring with others to do any of the

above-mentioned acts; and

5. Granting plaintiff such other relief as may be proper.'

was tried before me at Special Term, Part III. Plaintiff, Board of Higher

Education of the City of New York, governs and administers Queensborough

Community College (hereinafter called Queensborough). Defendants Auerbach,

Tivoli, Raps, Kanin, Brown, Wininger, Reed, Spiller and Moore are

duly-enrolled students at Queensborough; defendants Faigelman, McDonald

and Silberman, at the time of the institution of this action, were

non-tenured members of the instructional staff at Queensborough; defendant

Leslie Joyce Silberman is the wife of Professor Silberman; defendant

Students for a Democratic Society, Queensborough Community College

Chapter, is a chartered campus organization; **986 and defendant Ad Hoc

Faculty-Student Coalition to End Political Suppression is an unchartered

organization on the campus of Queensborough.

The events that have given rise to this action are but another

manifestation of the unrest on our college campuses today. The facts that

I have adduced after a seven-day trial can be summarized as follows:

On April 18, 1969, shortly after noon, an authorized outdoor rally was

held on the Queensborough campus and immediately *116 thereafter many

of the participants in that rally entered the Library-Administration Building and

began a 'sit-in' on the fourth floor. Thereafter, at about 9:00 P.M. on April 18,

1969 the President of Queensborough informed the students that they were

subject to arrest on criminal trespass charges in the second degree and at about

9:00 P.M. over 100 members of the New York City Police Department,

Tactical Patrol Force, assembled near the campus. On or about that time, the

buildings were vacated.

On April 21, 1969 an order to show cause was signed by a Justice of this

court made returnable on April 23rd which provided, inter alia, that

pending the hearing of the motion for a temporary injunction defendants,

and all other persons receiving notice of the injunction, should cease

from activities which tended to 'disrupt or interfere with normal

functions' on the campus.

Thereafter on April 21st, shortly after the noon hour, anywhere from 400

to 600 people re-entered the Library Administration Building and 'sat in'

in the lounge area located on the fourth floor. At about 5:30 P.M.,

service of the order to show cause, which contained the temporary

restraining order, was made on those who had occupied the lounge. They

left the Library Administration Building but returned at 7:15 P.M. and at

that time the 'sit-in' began in earnest and was to last until May 7th.

After hearing voluminous testimony by Kurt Schmeller, President of

Queensborough Community College, his assistant, Miss Eleanor Pam, and

testimony by many members of the faculty and many of the defendants, I

make the following findings which are material and necessary on the

question of whether an injunction should issue.

I find that those who 'sat in' on the fourth floor of the Librayy Administration

Building remained there after the normal closing hours of the building even

though they were requested to remove themselves and that their motivation

for sitting in in the building was their being informed that an English Professor,

the defendant Donald Silberman, would not be reappointed for the following year.

I find that during the 'sit-in', the students used loud amplification

systems, played guitars and generally disrupted the work being

carried**987 on in the other offices on the fourth floor, which included the

President's office, the Registrar's office, the Bursar's office and the

Admissions office.

I find that even though the students made an effort to keep the area

clear and to keep it clean, cigarette butts often could be found on the

floor and there were burns in the carpet. Furthermore, at certain times

during the course of the 'sit-in', *117 administration personnel were abused

by profanities. The certificate of occupany for the fourth floor area, which

was used by those who 'sat in', limited occupation to 100 people, the number

of people normally employed on that floor, and I find that at many times this

number was exceeded by the participants alone, particularly during performances

by well-knownentertainers brought in by the organizers of the 'sit-in' to 'entertain'

during the course of the occupation of the fourth floor. This excessive number of

people caused building violations to issue against the University.

On April 28, 1969, a decision of a Justice of this court continued the

temporary restraining order which, inter alia, restrained defendants from

disrupting or interfering with the normal functions of the University and

from employing force or violence against persons or property on the

campus. However, despite this order, the 'sit-in' continued and by May 7th

substantial destruction of University property occurred. At that time, the

participants of the 'sit-in' were apprised that the police were assembling

to physically remove them from the buildings and some of the participants

piled office furniture in the stairways, ripped out telephones and caused

substantial other destruction of University property.

The fundamental question presented is whether this court has the power to

issue the injunction sought. I hold that this court does have that power

and that a permanent injunction, limited in its terms as indicated below,

shall issue for the following reasons:

The proven conduct of the defendants constitutes, among other wrongs, a

continuous trespass. It is beyond dispute in this jurisdiction that a court of

equity, under certain circumstances, has jurisdiction to enjoin a continuous

trespass. (Coatsworth v. Lehigh Valley Railway Co., 156 N.Y. 451, 51

N.E. 301; Wheelock v. Noonan, 108 N.Y. 179, 15 N.E. 67; Poughkeepsie

Gas Co. v. Citizens' Gas Co., 89 N.Y. 493; Garvey v. Long Island R.R. Co.,

159 N.Y. 323, 54 N.E. 57; Van De Carr v. Schloss, 277 App.Div. 475,

101 N.Y.S.2d 48; see, also, the following treatises: 4 Pomeroy Equity

Jurisprudence (5th ed.), s 1357; 1 High on Injunctions (4th ed.), s 697;

43 C.J.S. Injunctions s 57, at p. 521.) As was stated by Mr. Justice Chase,

'Where a trespass is of a continuous nature, a person has a right to invoke

the restraining order of a court of equity to prevent the same and in an action

for that purpose the court can, and should, grant all the relief that the nature

of the **988 action and the facts demand.' (Sadlier v. City of N.Y.,

185 N.Y. 408, 413, 78 N.E. 272, 274.) The factors which guide the court

are (1) the irreparability of the injuries; (2) the inadequacy of the remedy at

law *118 and (3) whether injunctive relief will avoid a multiplicity of actions.

(Williams v. N.Y. Central R.R. Co., 16 N.Y. 97, and 1 High on Injunctions,

s 697.)

There can be no question that defendants have caused irreparable

injury both to the facilities of their college and to its normal

educational and administrative procedures and that the remedy at law is

inadequate in that a multiplicity of law actions will be needed to give

plaintiff a remedy and that such a remedy would, in reality, afford no

relief against continued disruption of the campus facilities. The mere

fact that a permanent injunction has never before been sought in this

jurisdiction against such activities does not defeat plaintiff's

application. (See Mendenhall v. School District No. 83, 76 Kan.

173, 90 P. 773.) The rule as set forth in a leading treatise is 'It is not a

fatal objection to the granting of an injunction that the use of the writ for

the particular purpose for which it is sought is novel.' (43 C.J.S.

Injunctions s 18, p. 429; see, also, Unity Contract Bridge Club v.

Wallender, 187 Misc. 23, 63 N.Y.S.2d 455.) The extension of the

doctrine of injunctive relief against continuous trespass to this novel

situation constitutes the adaptation of a traditional remedy to a new

situation which, of course, is in the best tradition of equity jurisprudence.

It is this ability of our law to so adapt that has made it survive over the

centuries.

Defendants contend, however, that injunctive relief does not lie

because (1) a public facility is involved and (2) equity will not enjoin

criminal acts. This court does not agree with the first contention. In

County Court of Harrison v. West Virginia Air Service, 132 W.Va. 1, 54

S.E.2d 1, the Supreme Court of Appeals of West Virginia, in an action by

the County as the owner of a public airport to restrain the defendant

lessee from the further use of the airport after its lease had expired,

held that where an injunction is sought against one who trespasses on a

public facility there is even greater reason for its issuance than when

private facilities are involved. This court agrees with the reasoning of

that opinion.

Defendants also contend that because a public university is involved here,

its students as members of the public somehow possess the right to 'occupy

its facilities'. A similar contention was presented to the court in People

v. Martinez, 43 Misc.2d 94, 250 N.Y.S.2d 28, which was a criminal action

against four defendants who entered police headquarters to see the Police

Commissioner of the City of New York and sat on the floor of the public

corridors and refused to leave when requested. The court stated at page

97, 250 N.Y.S.2d at page 31:

*119

'The Police Headquarters building was thus property owned by the City of

New York. 'Property is ownership; the unrestricted and exclusive**989

right to a thing; the right to dispose of a thing in every legal way, to

possess it, to use it, and to exclude every one else from interfering with

it' (Black's Law Dictionary, Third Edition, p. 1447). A public building is

one 'belonging to or used by the public for the transaction of public or

quasi public business' (Black's Law Dictionary, ibid. p. 1460).

The words 'public property' and 'public building', as interpreted by the

defendants in their brief are ill-defined. Their meanings may not be

distorted into an exercise in semantics. The public owns such property

only in a very broad and general sense. The deed to such property is not

in the name of each individual citizen in this city, either as joint tenants or

tenants in common. The title to Police Headquarters is in a municipal

corporation known as the City of New York. Such so-called public

building, especially one which houses so vital a functioning department as

the Police Department, may not be used in a manner which suits the whim

or caprice of every citizen, without reducing our government to chaos

(Bi-Metallic Invest. Co. v. State Board of Equalization of Colorado, 239

U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372). There is no blanket right to

every citizen in his use of this type of property. The rights of others must

always be considered (Johnson v. May, 189 App.Div. 196, 204,

178 N.Y.S. 742, 748).

In a comparable situation, the Appellate Division, Third Department, said:

'School buildings are not public places in the sense that the use thereof

may be demanded as a matter of right by any individual or organization as

a forum for public or private discussions' (Ellis v. Allen, 4 A.D.2d 343,

344, 165 N.Y.S.2d 624, 626).'

Nor does this court agree with defendants' second contention, i.e.,

that this court has no power to enjoin the acts because 'equity will not

enjoin the commission of a crime.' In the landmark case of People ex rel.

Bennett v. Laman, 277 N.Y. 368, 14 N.E.2d 439, the Court of Appeals of

this State stated at pages 376, 381 and 384, 14 N.E.2d at page 442:

'That a court of equity will not undertake the enforcement of the criminal

law, and will not enjoin the commission of a crime is a principle of

equity jurisprudence that is settled beyond any question. There can

equally be no doubt that the criminal nature of an act will not deprive

equity of the jurisdiction that would otherwise attach. (Cranford v.

Tyrrell, 128 N.Y. 341, 28 N.E. 514; Davis v. Zimmerman, 91 Hun. 489, 492,

36 N.Y.S. 303; Matter of Debs, 158 U.S. 564, 593, 15 S.Ct. 900, 39 L.Ed.

1092.) Whether or not the act sought to be enjoined is a crime, is

immaterial. Equity does not seek to enjoin it simply because it is a

crime; it seeks to protect some proper interest. If the interest sought to

be protected is one of which *120 equity will take cognizance, it will not

refuse to take jurisdiction on **990 the ground that the act which invades that

interest is punishable by the penal statutes of the state. Equity does not pretend

to punish the perpetrator for the act; it attempts to protect the right of the party

(here the People) seeking relief, and to prevent the performance of the

act or acts, which here may injure many.

We have pointed out that the fact that a criminal penalty is imposed for

the performance of such acts will not deprive equity of its jurisdiction.

In equity the court will consider the criminality of the act only to

determine whether, under the particular circumstances, equitable

intervention is necessary to give adequate protection to the interest

invaded or whether justice will be best served by relegating the parties

to the criminal court.

They allege facts showing that the acts of defendant imperil the health of

the people of the community, and will continue to cause irreparable

reparable injury to the health of the people and perhaps to their lives.

The relators invoke only the ordinary powers of a court of equity. The

power of the court to restrain acts which are dangerous to human life,

detrimental to the public health and the occasion of great public

inconvenience and damage is one that is possessed by all courts of equity.

Health Dept. v. Purden, Supra (99 N.Y. 237, 1 N.E. 687). Enough has been

shown here, which if proven upon the trial, will warrant the issuance of

an injunction.'

(See, also, Lanvin Parfums, Inc. v. Le Dans Ltd., 9 N.Y.2d 516, 215

N.Y.S.2d 257, 174 N.E.2d 920.) Here, too, the acts sought to be enjoined

constitute a danger to human life and property and occasion 'great public

inconvenience' and the interest sought to be protected is one of which

equity takes cognizance. Accordingly, equitable jurisdiction attaches even

though defendants' acts may be incidentally criminally punishable.

Defendants' final contention is that somehow their activities on

this campus were and are constitutionally protected and, therefore, equity

may not enjoin them. Such a contention, i.e., that one is privileged to

disrupt a college campus was put to rest in Hutt v. Brooklyn College of

the City of N.Y. (an unpublished opinion of the United States District

Court, Eastern District, New York, dated Dec. 28, 1968) where the court

stated:

'That the state may, in some cases, constitutionally punish conduct

intended to express an idea or point of view, is not open to question. See

E.g., United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673 (20 L.Ed.2d

672' (1968). The Supreme Court has often rejected the proposition that

'people who want to propagandize protests *121 or views have a

constitutional right to do so whenever and however and wherever they

please * * *' **991

Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 247 (17 L.Ed.2d 149)

(1966); Cox v. Louisiana, 379 U.S. 599, 85 S.Ct. 476 (13 L.Ed.2d 487)

(1965). The admitted facts of this case indicate a willful trespass on

College property, the exclusion of administrative personnel of the College

and an intentional refusal by the plaintiffs to end their seizure and

adverse holding of College property after being warned that they faced

suspension or dismissal and even arrest for violating the rules of the

College and the New York State trespass laws. Even assuming that the

aforesaid conduct Does combine 'speech' elements with 'nonspeech'

elements, nothing in the First Amendment forbids the State (or College

authorities) from disciplining students who prevent others from access to

College facilities. See Buttny v. Smiley, 281 F.Supp. 280 (D.Colo.1968) A

reasonable balancing of interests must reserve to the State (and the

College) the power to preserve its facilities for their intended uses. The

right to communicate does not include the right to confiscate.'

(See, also, Grossner v. Trustees of Columbia University of the City of

N.Y., D.C., 287 F.Supp. 535.)

Accordingly, this court is of the opinion that an injunction is to issue

which is to be perpetual against defendants Students for a Democratic

Society, the Ad Hoc Faculty-Student Coalition to End Political Suppression

and Leslie Joyce Silberman and, as against defendants Donald J. Silberman,

Faigelman, MacDonald and the student defendants, is to last until such

time as they are no longer, as the case may be, faculty members or

students at Queensborough Community College. The defendants and all

others receiving notice of this injunction are enjoined from:

(1) Congregating or assembling within or adjacent to any of the

plaintiff's academic or administrative buildings, recreation rooms or

athletic facilities or in any corridors, stairways, doorways and entrances

thereto on the campus of Queensborough Community College, in such

manner as to disrupt or interfere with normal functions conducted by plaintiff

in such place or to block, hinder, impede or interfere with ingress to or

egress from any such properties by plaintiff's faculty, administrators,

students, employees or guests thereat; and

(2) Employing force or violence against persons or property on plaintiff's

Queensborough Community College campus.

The issuance of such an injunction, limited to those activities

which disrupt the normal activities at the College and to activities that

tend to produce violence on the campus does not in any way offend any of

the constitutional guarantees contained in *122 the First Amendment of the

United States Constitution. This injunction in no way proscribes or circumvents

constitutionally-protected activities. This court is well aware that the right to

peacefully protest and to disseminate even those views that may be abhorrent

to a majority of the populace is the cornerstone **992 upon which our

Constitution rests. However, where that protest, as here, becomes violent and,

in essence, deprives others of their right to pursue their studies in a relatively

tranquil atmosphere, that protest can no longer be privileged or protected if

society itself and the rule of law which governs it is to survive.

The foregoing constitutes the decision of this court and all motions made

at the trial with regard to the action for a permanent injunction are

resolved in a manner consistent with this opinion.