Soglin v. Kauffman, 295 F.Supp. 978 (D.C.Wis. 1968)
United States District Court
W.D. Wisconsin.
Paul R. SOGLIN, Henry W. Haslach, David L. Goldman, William
T. Kaplan,
Richard J. Scheidenhelm, Robert Swacker, James McFadden, Daniel Bernstein,
Robert S. Cohen, William G. Simons, Students for a
Democratic Society (Madison
Chapter), individually and on behalf of those similarly situated, Plaintiffs,
v.
Joseph F. KAUFFMAN, individually and as Dean of Student
Affairs at the
University of Wisconsin (Madison Campus); Ralph Hanson,
individually and as
Chief of the University of Wisconsin (Madison Campus)
Department of
Protection and Security, and as a representative of a class
known as police officers of
the University of Wisconsin; the Regents of the University
of Wisconsin; Wilbur
Emery,individually and as Chief of Police of the City of
Madison, Wisconsin,
and as a representative of a class known as police officers
of the City of
Madison; James Boll, individually and as District Attorney
of Dane County,
Wisconsin; Bronson C. La Follette,individually and as
Attorney General of the
State of Wisconsin; their Agents,Assistants,Successors,
Employees, Attorneys
and all those acting in concert with them or at their direction, Defendants.
No. 67-C-141.
Dec. 13, 1968.
See also, D.C., 286 F.Supp. 851.
*980
Percy L. Julian, Jr., Michael A. Reiter, Madison, Wis.,
William M.
Kunstler, Arthur Kinoy, New York City, Dennis Roberts,
Harriet Van Tassel,
Morton Stavis, Newark, N.J., for plaintiffs.
Bronson C. La Follette, Atty. Gen. of Wis., Arlen C.
Christenson, Deputy
Atty. Gen., Thomas A. Lockyear, Asst. Atty. Gen., Madison,
Wis., for
defendants, Kauffman, Hanson, and Board of Regents.
John P. Koberstein, Madison, Wis., for defendant, Boll.
William A. Jansen, Asst. City Atty., Madison, Wis., for
defendant, Emery.
*981
JAMES E. DOYLE, District Judge.
This opinion deals with that branch of this action in which
plaintiffs
seek declaratory and injunctive relief with respect to
Chapter 11.02 of
the Laws and Regulations of the University of Wisconsin, and
with respect
to disciplinary proceedings based upon alleged 'misconduct'
rather than
upon alleged violations of any express regulation or statute.
Plaintiffs are alleged to be ten students at the Madison
campus of the
University of Wisconsin, and an unincorporated association
known as
Students for a Democratic Society (Madison chapter). They
undertake to sue
on behalf of others similarly situated, as well as for
themselves. Several
of the defendants are alleged to be officials of the
University of
Wisconsin, having duties with respect to discipline.
The complaint alleges that on October 18, 1967, plaintiffs
and members of
their classes engaged in a demonstration on the Madison
campus. The
ensuing events, pertinent to this opinion, as alleged in the
complaint
were as follows:
By letter dated October 19, 1967, certain of the plaintiffs
were advised
by the defendant Dean Kauffman that their conduct on October
18 had
violated Chapter 11.02 of the Laws and Regulations of the
University,
which was quoted in full; that they were being charged with
disrupting the
operations of the University; and that they were suspended
from the
University pending a hearing before the Administrative
Division of the
Committee on Student Conduct and Appeals.
By letter dated October 21, 1967, certain of the plaintiffs
were advised
by the chairman of the said Administrative Division that
they were
authorized to attend classes and write examinations pending
the
disciplinary proceedings; and that
'* * * it is charged that by committing the following acts
you have
disrupted the operation of the University in violation of
Chapter 11.02:
'failing to leave the Commerce Building after being ordered
to do so by
University of Wisconsin Police Chief Ralph Hanson, who had
previously
declared an unlawful assembly. Your action thereby disrupted
the
operations of the Commerce School.'
On or about November 1, 1967, certain of the plaintiffs, and
others,
received a copy of a document described as 'Amended Charges'
and signed by
the chairman of the Administrative Division. The amended
charges were that
the named students:
'I. Intentionally, denied to others their right to interview
for jobs with
the Dow Chemical Corporation and to carry out that purpose
did: 'a.
Intentionally, physically obstruct and block the hall and
doorways of the
first floor of the Commerce Building; 'b. Intentionally deny
to persons
who desired to interview with Dow Chemical Corporation their
right to do
so; 'c. Intentionally deny to others their right of ingress
and egress
through the hallway; 'd. Intentionally deny to other
University students
and other members of the University community their right to
attend and
conduct classes; 'e. Intentionally deny to other University
students and
other members of the University community their right to
carry on
University operations in offices of the Commerce Building. 'II.
Intentionally incited and counselled others to deny to
others their right
to interview for jobs with the Dow Chemical Corporation and
to carry out
that purpose did intentionally incite and counsel others to:
'a.
Physically obstruct and block the hall and doorways of the
first floor of
the Commerce Building; 'b. Intentionally deny persons who
desired to
interview with Dow Chemical Corporation their right to do so;
*982
'c. Intentionally deny to others their right of ingress and
egress through
the hallway; 'd. Intentionally deny to other University
students and other
members of the University community their right to attend
and conduct
classes; 'e. Intentionally deny to other University students
and other
members of the University community their right to carry on
University
operations in Administrative offices of the Commerce
Building. 'III.
Intentionally refused repeated requests to move and to
unblock the hall
and doorways of the first floor of the Commerce Building for
the purpose
of denying to others their right to interview for jobs with
the Dow
Chemical Corporation with the result that: 'a. Other
University students
were denied their right to interview with Dow Chemical
Corporation; 'b.
Other University students and members of the University
community were
denied their right to ingress and egress through the
hallway; 'c. Other
University students and members of the University community
were denied
their right to attend and conduct classes; 'd. Other
University students
and members of the University community were denied their
right to carry
on University operations in the offices of the Commerce
Building. 'All of
the foregoing constituting: '1. Misconduct, as well as '2. A
violation of
Chapter 11.02, and 11.15 of the University Policies on Use
of Facilities
and Outside Speakers.' [FN1]
FN1. Chapter 11.15 of the Laws and Regulations of the
University of
Wisconsin provides:
'Those who attend a speech or program sponsored by student
organizations,
University departments, or other authorized groups, have the
duty not to
obstruct it, and the University has the obligation to
protect the right to
listen or participate.'
Counsel for the defendants have stipulated in this action
that Chapter
11.15 is inapplicable to the circumstances of this case and
that it is not
relied upon as support for disciplinary action with respect
to the events
of October 18.
Also, on or about November 1, 1967, in the course of
proceedings in this
court, defendants filed a brief in which it was stated that
'the
plaintiffs have been charged with misconduct under Section
36.12,
Wisconsin Statutes'; in oral argument counsel for the
defendants asserted
the disciplinary proceedings were grounded in part upon an
alleged
violation of Sec. 36.12, Wis.Stats. Sec. 36.12 provides, in
part:
'* * * the regents shall have the power * * * to confer upon
the faculty
by by-laws the power to suspend or expel students for
misconduct or other
cause prescribed in such by-laws.'
Counsel for the defendants have since stipulated that Sec.
36.12 is
enabling legislation, that the section itself expresses no
command or
prohibition capable of being violated, and that no alleged
violation of
its terms is relied upon as support for disciplinary action
with respect
to the events of October 18.
The complaint alleges that the defendants, or some of them,
have in fact
expelled two of the plaintiffs and 'another member of
plaintiffs' classes
* * * by application of the doctrine of 'misconduct', and
are threatening
suspension, expulsion or other denial of matriculation * * *
to other
members of plaintiffs' classes for alleged violation of the
doctrine of
'misconduct' and by reason of the application of the
doctrine of
'misconduct". [FN2]
FN2. From a pleading other than the complaint (a motion for
a temporary
restraining order, and an affidavit in support of the
motion), it appears
that the expulsions were based on alleged misconduct which
occurred
several seeks subsequent to October 18, 1967.
So far as the present action is concerned, then, the
defendants assert
authority to discipline students: (1) for 'misconduct'; and
(2) for
violations of *983 Chapter 11.02 of the Laws and Regulations of the
University, which provides:
'Scope of Student Freedom. Students have the right, accorded
to all
persons by the Constitution, to freedom of speech, peaceable
assembly,
petition and association. Students and student organizations
may examine
and discuss all questions of interest to them, and express
opinions
publicly as well as privately. They may support causes by
lawful means
which do not disrupt the operations of the University, or
organizations
accorded the use of University facilities.' [FN3]
FN3. In response to an application by plaintiffs at the
commencement of
this action, I restrained the defendants from imposing any
sanction by
reason of alleged violations of Chapter 11.02 based on the
events of
October 18, and from conducting hearings or other similar
steps in
proceedings theretofore commenced for violations of Chapter
11.02. I
declined to restrain the defendants from conducting
disciplinary
proceedings or from imposing sanctions based upon the term
'misconduct' as
a standard for discipline, as distinguished from Chapter
11.02. Defendants
continue to assert their authority to discipline students
for violations
of Chapter 11.02.
Plaintiffs contend that the term 'misconduct', as a standard
for
disciplinary action by the University, violates the First
and Fourteenth
Amendments to the Constitution of the United States because
of its
vagueness and overbreadth. Plaintiffs also contend that
Chapter 11.02 as
written violates the First and Fourteenth Amendments because
of its
vagueness and overbreadth. Pursuant to pretrial order,
defendants have
filed a partial answer to these two contentions, each of
which has been
denied. With respect to these two contentions, the relief
sought is a
declaratory judgment and injunctive relief consistent with
the
declaration. This opinion and the order entered pursuant to
it reach only
these two contentions and the relief sought with respect to
them. [FN4]
FN4. The complaint contains many factual allegations to the
effect that,
assuming that neither Chapter 11.02 nor the term
'misconduct' as a
standard for disciplinary action is fatally vague or overly
broad, each
nevertheless has been applied, and the application of each
is threatened,
'for the purpose of discouraging protected activities'.
Dombrowski v.
Pfister, 380 U.S. 479, 490, 85 S.Ct. 1116, 1122, 14 L.Ed.2d
22 (1965).
Defendants have filed a number of motions for various forms
of relief,
including severance of the claims of the complaint as
against the various
defendants, a determination with respect to the propriety of
the classes
on whose behalf the action is brought, and a requirement of
a more
definite statement. In this opinion and in the order to be
entered
pursuant to it, the court reaches none of the issues raised
by the said
factual allegations of the complaint nor by the defendants'
motions
referred to in this footnote.
Jurisdiction
Jurisdiction of the action with respect to the term
'misconduct' as a
standard for discipline and with respect to Chapter 11.02,
is claimed
pursuant to 42 U.S.C. § 1983, and 28 U.S.C. §§ 1343(3) and
1343(4), among
other statutes. Jurisdiction is present. The complaint
sufficiently
alleges that the defendants, or some of them, under color of
a regulation
or custom or usage of the State of Wisconsin, have subjected
and threaten
to subject the plaintiffs to the deprivation of rights and
privileges
secured to them by the Constitution of the United States.
Defendants have
contended that the court lacks jurisdiction over the subject
matter
because plaintiffs have failed to exhaust the administrative
remedies made
available to them by the state. Such exhaustion is not
required as a
condition to the exercise of jurisdiction in this action
under 42 U.S.C. §
1983. Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19
L.Ed.2d 647
(1967).
'Misconduct' as a Standard
The amended charges of November 1, 1967, set forth in full
above, allege
rather specific behavior on the part of the *984 named students and conclude
with the following:
'All of the foregoing constituting: '1. Misconduct, as well
as '2. A
violation of Chapter 11.02. * * *'
If the term 'misconduct', without more, may serve as a
standard for
disciplinary action, it is not essential to the defendants'
position that
Chapter 11.02 be vindicated as a prohibitory regulation. For
reasons which
will be explained herein, I turn initially to the broader
contention of
the defendants: that the term 'misconduct' may serve as a
standard for
disciplinary action, and that no more specific or definite
substantive
rules are required as a prerequisite for disciplinary
action.
With respect to the imposition of criminal sanctions in the
non-university society, [FN5] such a regime would grossly
violate the
Constitution of the United States.
FN5. 'Non-university society', as used herein, is a
shorthand expression
not intended to be wholly precise. Colleges, secondary
schools, primary
schools, the military, or penal institutions, for example,
may or may not
be comparable to universities for certain constitutional
purposes. Some
implications of these comparisons will be referred to hereinafter.
'(A) statute which either forbids or requires the doing of
an act in terms
so vague that men of common intelligence must necessarily
guess at its
meaning and differ as to its application violates the first
essential of
due process of law.' Connally v. General Construction Co.,
269 U.S. 385,
391, 46 S.Ct. 126, 127, 70 L.Ed. 322.
A federal, state, or local statute, ordinance, regulation,
order or rule,
subjecting one to imprisonment or fine or other serious
sanction for
'misconduct' would surely fall as unconstitutionally vague.
Moreover, it
would not be necessary that a challenger await the outcome
of an attempted
application of so vague a rule to him in a specific judicial
or
administrative proceeding, and then dispute the validity of
the rule only
as applied. He could challenge the prospective application
of a vague rule
and obtain a judicial declaration of its invalidity and
injunctive relief
against attempts to enforce it. Champlin Refining Co. v.
Corporation
Commission of Oklahoma, 286 U.S. 210, 219, 52 S.Ct. 559, 76
L.Ed. 1062
(1932); Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct.
681, 71 L.Ed.
1146 (1927); and Connally v. General Construction Co., supra.
Defendants here contend that, given the opportunity, they
can prove
that with respect to the events of October 18, those
students who were
subsequently subjected to disciplinary action had received
prior warnings
from certain university administrators that they would be
punished if they
performed the acts which they are alleged to have proceeded
nevertheless
to perform. It is not contended that defendants could prove
that those
administrators who issued the warnings were themselves (as
distinguished,
for example, from the board of regents or the faculty, Sec.
36.12,
Wis.Stat.) empowered to promulgate generally applicable
rules of conduct
for university students. Nor could it be contended that the
term
'misconduct' itself prescribes intelligible standards or
criteria by which
these administrators might exercise discretion to issue a
specific warning
or order in a specific case. In the non-university society,
in the absence
of a reasonably clear rule or standard or criterion
promulgated by those
duly empowered to promulgate them, one may not be punished
for violating
the order of an administrator, such as a policeman. Wright
v. Georgia, 373
U.S. 284, 291-292, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963). See
Shuttlesworth
v. City of Birmingham, 382 U.S. 87, 90-91, 86 S.Ct. 211, 15
L.Ed.2d 176
(1965); Cox v. Louisiana, 379 U.S. 536, 579, 85 S.Ct. 453,
13 L.Ed.2d 471
(1965) (separate opinion of Mr. Justice Black); Kunz v. New
York, 340 U.S.
290, 293-295, 71 S.Ct. 312, 95 L.Ed. 280 (1951); *985
Schneider v. State of New Jersey, etc., 308 U.S. 147, 164,
60 S.Ct. 146,
84 L.Ed. 155 (1939).
Moreover, the vagueness doctrine is not to be conceived as
being
limited solely to the concept of fair notice as an element
of substantive
due process. The vagueness doctrine embodies a First
Amendment concept as
well:
'The objectionable quality of vagueness and overbreadth does
not depend
upon absence of fair notice to a criminally accused or upon
unchanneled
delegation of legislative powers, but upon the danger of
tolerating, in
the area of First Amendment freedoms, the existence of a
penal statute
susceptible of sweeping and improper application.' NAACP v.
Button, 371
U.S. 415, 432-433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963).
'Vague laws in
any area suffer a constitutional infirmity. When First
Amendment rights
are involved, we look even more closely lest, under the
guise of
regulating conduct that is reachable by the police power,
freedom of
speech or of the press suffer.' Ashton v. Kentucky, 384 U.S.
195, 200, 86
S.Ct. 1407, 16 L.Ed.2d 469 (1966).
Whether a given rule 'involves' First Amendment rights so as
to require
that it be looked to 'more closely' is often relatively easy
to determine:
a rule against bank robbery does not; a rule regulating
public gatherings
probably does. A rule against 'misconduct' is so grossly
vague that
possible involvement of First Amendment rights cannot be
ignored. It is
not permissible to 'presume that the statute curtails
constitutionally
protected activity as little as possible.' NAACP v. Button,
supra, 371
U.S. at 432, 83 S.Ct. at 337.
For this reason, even if we were to assume, difficult as it
is to do
so, that in non-university society a rule simply prohibiting
'misconduct'
might survive the test of vagueness, it would be doomed as
overly broad.
'* * * When the end can be more narrowly achieved', Shelton
v. Tucker, 364
U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231, a rule
which '* * *
sweeps within its broad scope activities that are
constitutionally
protected free speech and assembly', Cox v. Louisiana, supra
379 U.S. at
552, 85 S.Ct. at 463, violates the First Amendment by reason
of its
overbreadth. Keyishian v. Board of Regents, etc., 385 U.S.
589, 609, 87
S.Ct. 675, 17 L.Ed.2d 629 (1967); Elfbrandt v. Russell, 384
U.S. 11, 86
S.Ct. 1238, 16 L.Ed.2d 321 (1966); Cox v. Louisiana, supra;
Aptheker v.
Secretary of State, 378 U.S. 500, 514, 84 S.Ct. 1659, 12
L.Ed.2d 992
(1964). When one is subjected to prosecution based upon such
an overly
broad regulation, he is not limited to a defensive posture
in resisting
it. He may take the initiative in seeking declaratory and
injunctive
relief. Dombrowski v. Pfister, 380 U.S. 479, 486-487, 85
S.Ct. 116, 14
L.Ed.2d 22 (1965). Moreover, in such a situation the
challenger enjoys an
'exception to the usual rules governing standing. * * *' 380
U.S. at 486,
85 S.Ct. at 1121
'* * * The instant decree may be invalid if it prohibits
privileged
exercises of First Amendment rights whether or not the
record discloses
that the petitioner has engaged in privileged conduct. For
in appraising a
statute's inhibitory effect upon such rights, this Court has
not hesitated
to take into account possible applications of the statute in
other factual
contexts besides that at bar. Thornhill v. Alabama, 310 U.S.
88, 97-98 (60
S.Ct. 736, 741- 742, 84 L.Ed. 1093); Winters v. New York,
(333 U.S. 507),
at 518-520 (68 S.Ct. 665, at 671-672, 92 L.Ed. 840); Cf.
Staub v. City of
Baxley, 355 U.S. 313 (78 S.Ct. 277, 2 L.Ed.2d 302).' NAACP
v. Button,
supra, 371 U.S. at 432, 83 S.Ct. at 337. See Dombrowski v.
Pfister, 380
U.S. at 486-487, 85 S.Ct. 1116; Aptheker v. Secretary of
State, 378 U.S.
500, 516-517, 84 S.Ct. 1659 (1964).
'Possible applications of (a rule simply prohibiting
'misconduct') in
other factual contexts beyond that at bar' are limitless.
With so grossly
broad a standard *986 as 'misconduct', one need not strain to hypothesize
applications which would be realistically predictable as well as 'possible', and
which would demonstrate that the standard 'sweeps within its broad scope
activities that are constitutionally protected free speech
and assembly', Cox v.
Louisiana, supra, 379 U.S. at 552, 85 S.Ct. at 463.
Defendants do not appear to dispute that with respect to the
criminal law
in non-university society the doctrines of vagueness and
overbreadth, and
the availability of these doctrines in prospective attacks
upon criminal
regulations, are substantially as stated above. Rather, it appears
that
their contention may be summarized as follows:
Whether the power is conceived to be inherent or statutory
(Sec. 36.12,
Wis.Stats.), those charged with the governance of the
university are
empowered to discipline students for misconduct. (This proposition
is
conceded by the plaintiffs; conceded or not, I conclude that
it is
correct.)
In exercising this power to discipline for misconduct, the
university is
not bound to promulgate any rules defining misconduct. The
function of
fair notice can be effectuated by means other than the
promulgation of
rules of general application. For example, university
administrators can
inform particular students in advance of a particular
occasion that if the
students behave in a particular manner, they will be
punished. Notice of
this latter type is constitutionally sufficient with respect
to university
disciplinary matters, although the vagueness doctrine might
render it
invalid in certain non-university situations.
With respect to First Amendment guarantees as implemented
both by the
vagueness and overbreadth tests, it is sufficient that
disciplinary action
be reasonably related to the maintenance of that order and
decorum
necessary to performance of the university's function. This
determination
is to be made by the courts by balancing the governmental
interest in the
university's program against the individual student's
interest in his
freedom. This 'balancing' test is sharply to be
distinguished from the
tests of vagueness and overbreadth ('facial invalidity').
Moreover, the
balancing test is not to be judicially applied
prospectively, but case by
case, after the disciplinary proceeding has been completed.
The reason for sparing disciplinary proceedings from the
tests of
vagueness and overbreadth, and particularly from prospective
application
of these tests, lies in the uniqueness of the university as
an institution
and in the university's historically demonstrated attachment
to freedom.
Historically, universities and colleges and schools, both public
and
private, have enjoyed wide latitude in student discipline.
Various
'models' of the relationship between the university and its
students have
been employed by the courts for the purpose of determining
the legal
attributes of the relationship: parent-child (in loco
parentis);
ownertenant; parties to a contract. [FN6] Van Alstyne, 'The
Student as
University Resident', 45 Denver L.J. 582-598 (1968).
Whatever the model or
combination of models employed, the dominant pattern has
been judicial
non-intervention in the discipline of students by faculty,
administrators,
school boards, trustees, or regents. [FN7]
FN6. The trustee-beneficiary model has been suggested.
Goldman, The
University and the Liberty of its Students-- A Fiduciary
Theory', 54
Ky.L.J. 643 (1966).
FN7. The court decisions to this effect are so numerous that citations is pointless.
No controlling decision to this effect by the Court of Appeals for the Seventh Circuit,
however, has been brought to my attention. With respect to decisions of the Supreme
Court of the United States, see particularly the discussion hereinafter of West Virginia
State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628,
147 A.L.R. 674 (1943).
In recent years, however, courts have been increasingly
disposed to
intervene *987 in school disciplinary situations involving major sanctions. This has
been most marked when intervention has appeared necessary to
assure that
procedural due process is observed: for example,
specification of charges,
notice of hearing, and hearing. Woods v. Wright, 334 F.2d
369 (5th Cir.
1964); Dixon v. Alabama State Bd. of Educ., 294 F.2d 150
(5th Cir. 1961),
cert, den., 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193
(1961); Moore v.
Student Affairs Comm. of Troy State Univ., 284 F.Supp. 725
(M.D.Ala.1968);
Schiff v. Hanna, 282 F.Supp. 381 (W.D.Mich.1966) (en banc);
Esteban v.
Central Mo. State College, 277 F.Supp. 649 (W.D.Mo.1967);
Knight v. State
Bd. of Educ., 200 F.Supp. 174 (M.D.Tenn.1961). But judicial
intervention
in school disciplinary cases in more recent years has not
been confined to
matters of procedural due process. The validity of
substantive school
rules has been the subject to judicial scrutiny. Burnside v.
Byars, 363
F.2d 744 (C.A.5th, 1966) (high school regulation prohibiting
students from
wearing 'freedom buttons' held invalid); Hammond v. South
Carolina State
College, 272 F.Supp. 947 (D.S.C., 1967) (rule prohibiting
'parades,
celebrations, and demonstrations' without prior approval of
college
authorities, held invalid); Dickey v. Alabama State Board of
Education,
273 F.Supp. 613 (M.D.Ala., N.D.1967) (rule that no editorial
in school
paper could criticize governor or legislature, held
invalid). See Buttny
v. Smiley, 281 F.Supp. 280 (D.Colo., 1968) (upholding a
regent rule
against a vagueness contention).
Of course, the substantive guarantee of equal protection has
been
consistently applied to educational institutions, and
specifically to
regulations and practices adopted by boards of education and
university
administrators. Brown v. Board of Education, etc., 347 U.S.
483, 74 S.Ct.
686, 98 L.Ed. 873, 38 A.L.R.2d 1180 (1954) (Topeka Board of
Education);
Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, 19
(1958) (Little
Rock School Board); Holmes v. Danner, 191 F.Supp. 394
(M.D.Ga., 1961),
stay denied, 364 U.S. 939, 81 S.Ct. 686 (1961) (university
administrators). Also, loyalty oaths sought to be imposed
upon teachers
and other university personnel have been invalidated as
vague or overly
broad. Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12
L.Ed.2d 377
(1964); Cramp v. Board of Public Instruction, etc., 368 U.S.
278, 82 S.Ct.
275, 7 L.Ed.2d 285 (1961).
Indeed, in numerous contexts, the Supreme Court has assigned
a special
importance to First Amendment guarantees in the educational
setting.
'Judicial interposition in the operation of the public
school system of
the Nation raises problems requiring care and restraint. Our
courts,
however, have not failed to apply the First Amendment's
mandate in our
educational system where essential to safeguard the
fundamental values of
freedom of speech and inquiry and of belief. By and large,
public
education in our Nation is committed to the control of state
and local
authorities. Courts do not and cannot intervene in the
resolution of
conflicts which arise in the daily operation of school
systems and which
do not directly and sharply implicate basic constitutional
values. On the
other hand, 'The vigilant protection of constitutional freedoms
in nowhere
more vital than in the community of American schools,'
Shelton v. Tucker,
364 U.S. 479, 487 (81 S.Ct. 247, 251, 5 L.Ed.2d 231)
(1960).' Epperson v.
Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d
228, Nov. 12,
1968.
Underlying these developments in the relationship of
academic institutions
to the courts has been a profound shift in the nature of
American schools
and colleges and universities, and in the relationships *988
between younger and older people. These changes seldom have
been
articulated in judicial decisions but they are increasingly
reflected
there. The facts of life have long since undermined the
concepts, such as
in loco parentis, which have been invoked historically for
conferring upon
university authorities virtually limitless disciplinary discretion.
[8] I take notice that as of October, 1967, some
33,000 students were
enrolled on the Madison campus; that many graduate schools,
such as those
of law and medicine, are situated on the Madison campus;
that among the
colleges, schools, or departments of the university at
Madison are those
of agriculture, business, engineering, family resources and
consumer
sciences, industrial relations research, journalism,
military science,
naval science, pharmacy, and a school for workers; that
sources of major
portions of its funds, in addition to state tax revenues,
are grants from
federal agencies and departments such as the Department of
Health,
Education and Welfare, and the Department of Defense; that
the university
has close and useful and productive ties to industry,
agriculture, and
organized labor in Wisconsin and elsewhere; that the
university owns or
controls a large area of land; that it owns or controls many
buildings,
some large, which are used as residences, classrooms,
laboratories,
offices, meeting places, restaurants, gymnasiums and playing
fields
(intramural and intercollegiate), and research centers; and
that it
maintains its own police force, hospital, parking lots, and
similar
functions and facilities.
I take notice that for some years the mean age of American
college
and university students has been more than 21 years, and
that among them
are more over 30 years than under 18. [FN8]
FN8. U.S. Bureau of the Census, Department of Commerce,
Current Population
Reports, Series P-20, No. 110, Population Characteristics 12
(1961).
I take notice that particularly in recent years the
universities
have become theaters for stormy and often violent protest
over such
matters as war and peace, racial discrimination in our
cities and
elsewhere, and the quality of American life; that this
phenomenon adds new
and unanticipated dimensions to the regulation of conduct in
the
universities; and that those charged with governance of
these institutions
have been struggling to preserve the many competing values
involved.
I take notice that in the present day, expulsion from an
institution of
higher learning, or suspension for a period of time
substantial enough to
prevent one from obtaining academic credit for a particular
term, may well
be, and often is in fact, a more severe sanction than a
monetary fine or a
relatively brief confinement imposed by a court in a criminal proceeding.
The world is much with the modern state university. Some
find this
regret-table mourning the passing of what is said to have
been the old
order. I do not share this view. But whether the
developments are pleasing
is irrelevant to the present issue. What is relevant is that
the
University of Wisconsin at Madison may continue to encompass
functions and
situations such as those which characterized a small liberal
arts college
of the early 20th century (of which some no doubt exist
today), but that
it encompasses many more functions and situations which bear
little or no
resemblance to the 'models' which appear to have underlain,
and continue
in some cases to underlie, judicial response to cases
involving college or
university discipline. What is relevant is that in today's
world
university disciplinary proceedings are likely to involve
many forms of
misconduct other than fraternity hazing or plagiarism, and
that the
sanctions imposed may involve consequences for a particular
student more
grave than those involved in some criminal court proceedings.
The question here concerns the relationship, in today's world,
between *989
the university board, faculty, and administrators as the
governors, and
students as the governed. Although there is considerable
ferment in the
universities about this very relationship, I see no
constitutional bar to
an arrangement by which the state vests in a board of
regents and the
faculty the power to govern a university and to discipline
its students;
nor do I see any constitutional bar to a prompt and severe
disciplinary
response to violence and rioting and other constitutionally
unprotected
conduct. The more precise question concerns the manner in
which this power
to govern and to discipline is exercised. It concerns
whether the manner
of its exercise is wholly immune to the application of the
standards of
vagueness and overbreadth. Even more precisely, it concerns
whether the
courts may-- and if they may, whether they should-- measure
the
sufficiency of university rules and regulations against
these
constitutional standards.
In West Virginia State Board of Education v. Barnette, 319
U.S. 624, 63
S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674 (1943), the Court
met head-on
the question whether the courts may and should intervene
when the First
Amendment freedoms of students in public elementary and
secondary schools
are threatened by a regulation promulgated by a state board of education.
The regulation in question required the students to salute
the flag by
raising their arms in a certain manner and by reciting the
pledge of
allegiance. Failure to comply was subject to expulsion, and
expulsion
involved related legal consequences. The Court held that the
administrative regulation violated the First Amendment, as
embodied in the
Fourteenth; it took pains to make clear that the issue was
not religious,
and that persons whose scruples were other than religious were
equally
entitled to protection from such a regulation (319 U.S., at
634-635, 63
S.Ct. 1178). It rejected the contention that it should
refrain from
interference with the school board's functions, observing
that school
boards have 'important, delicate, and highly discretionary
functions, but
none that they may not perform within the limits of the Bill
of Rights'
(319 U.S., at 637, 63 S.Ct. at 1185). It rejected the
contention that it
should refrain from entering a field 'where courts possess
no marked and
certainly no controlling competence', Minersville School
District v.
Gobitis, 310 U.S. 586, 597-598, 60 S.Ct. 1010, 1014, 84
L.Ed. 1375, 127
A.L.R. 1493 (1940); it commented that its duty to apply the
bill of rights
to assertions of official authority depends not upon the
Court's
possession of marked competence in the field where the
invasion of rights
occurs, 'but by force of our commissions':
'We cannot, because of modest estimates of our competence in
such
specialties as public education, withhold the judgment that
history
authenticates as the function of this Court when liberty is
infringed.'
319 U.S., at 638-640, 63 S.Ct., at 1186.
The judgment of the district court enjoining enforcement of
the school
board regulation was affirmed.
In Barnette, 319 U.S., at 632, 63 S.Ct., at 1182, the Court
described the
holding in Hamilton V. Regents of University of California,
293 U.S. 245,
55 S.Ct. 197, 79 L.Ed. 343 (1934), as follows: '* * * that
where a State,
without compelling attendance, extends college facilities to
pupils who
voluntarily enroll, it may prescribe military training as
part of the
course without offense to the Constitution. It was held that
those who
take advantage of its opportunities may not on ground of
conscience refuse
compliance with such conditions.' The Court distinguished
Hamilton on two
grounds: (1) in public primary and secondary schools in West
Virginia, in
which Barnette arose, attendance was not optional; and (2)
'* * *
independently of college privileges or requirements, the
State has power
to raise militia and impose the duties of service therein
upon its
citizens.'
The present vitality of Hamilton has been sharply
questioned, *990
School District of Abington Township, Pa. v. Schempp, 374
U.S. 203, at
251-253, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Brennan, J.,
concurring);
the current force of its distinction between state
universities at which
attendance is optional, and public elementary and secondary
schools at
which attendance is compulsory, is difficult to evaluate. It
has not been
expressly overruled. See Zanders v. Louisiana State Board of
Education,
281 F.Supp. 747, 754, n. 14 (W.D.La.1968). It seems
unnecessary here to
invade the thicket of conceptual difficulties involved in
the
'rights-privileges' distinction and in the doctrine of
unconstitutional
conditions. See Van Alstyne, 'The Demise of the
Right-Privilege
Distinction in Constitutional Law', 81 Harv.L.Rev. 1439,
1442-1449 (1968).
It should be sufficient to observe that many courts have now
concluded
that whether the opportunity to attend a state institution
of higher
learning is viewed as a right or as a privilege, it may not
be conditioned
on the student's acceptance of a regime in which procedural
due process is
abdicated (see decisions cited at page 987, above) or in
which substantive
rules flatly restricting free expression are enforced (see
decisions cited
at page 987, above). Thus, it cannot presently be contended
that in order
to enjoy the 'privilege' of higher education, one may be
obliged to
consent that he may be expelled without specification of
charges, notice,
or hearing, or to consent to remain silent on the political
and social
issues of his time. 'A state cannot force a college student
to forfeit his
constitutionally protected right of freedom of expression as
a condition
to his attending a state-supported institution.' Dickey v.
Alabama State
Board of Education, 273 F.Supp. 613, 618 (M.D.Ala., N.D.1967).
Finally, then, the issue is reached whether admission to the
University of Wisconsin as a student, and continued
enrollment there, may
be made to depend upon consent to a regime in which due
process may be
denied by vague prohibitory standards, or freedom of
expression may be
threatened or denied by vague or overly broad prohibitory
standards. For
the reasons I have discussed the answer must be no, unless
there is some
compelling reason why the university should escape this
particular
constitutional stricture, some reason why it should be
wholly free to
refrain from promulgating reasonably definite and narrow rules of conduct.
In Esteban v. Central Missouri State College, 290 F.Supp.
622, 630
(W.D.Mo., W.D., 1968), it was said:
'Judicial notice is taken that outstanding educational
authorities in the
field of higher education believe, on the basis of
experience, that
detailed codes of prohibited student conduct are provocative
and should
not be employed in higher education. See, Brady and Snoxell,
Student
Personnel Work in Higher Education, p. 378
(Houghton-Mifflin, Boston,
1961). For this reason, general affirmative statements of
what is expected
of a student may be preferable in higher education. Such
affirmative
statements should, of course, be reasonably construed and
applied in
individual cases.'
I cannot agree that university students should be deprived
of these
significant constitutional protections on so slender a
showing. The
American Association of University Professors has declared:
'Disciplinary proceedings should be instituted only for
violation of
standards of conduct defined in advance and published
through such means
as a student handbook or a generally available body of
university
regulations. Offenses should be as clearly defined as
possible, and such
vague phrases as 'undesirable conduct' or 'conduct injurious
to the best
interests of the institution' should be avoided. Conceptions
of misconduct
particular to the institution need a clear and explicit definition.'
Statement on The Academic Freedom of Students, 51 A.A.U.P.Bull.,
447, 449 (1965).
See Van Alstyne, 'Student Academic Freedom and the Rule-Making Powers
of *991 Public Universities: Some constitutional
Considerations', 2 Law in
Transition Quarterly 1, 2-6 (1965), and Van Alstyne, 'The
Student as
University Resident', 45 Denver L.J. 582, 592-593, nn. 23,
24 (Special
1968). The subject is discussed extensively in a 'Symposium:
Student
Rights and Campus Rules', 54 Calif.L.Rev. 1 (March, 1966),
and
specifically therein in Linde, 'Campus Law: Berkeley Viewed
from Eugene',
54 Calif.L.Rev. 40, in Which the efforts to develop a
student conduct code
at the University of Oregon are discussed in detail. I am
not persuaded
that the impossibility or inadvisability of the task must be
accepted so
readily when important Fourteenth Amendment and First Amendment
guarantees are at stake.
For the reasons stated, and upon the basis of the entire
record
herein, I conclude that the constitutional doctrines of
vagueness and
overbreadth are applicable, in some measure, to the standard
or standards
to be applied by the university in disciplining its
students, and that a
regime in which the term 'misconduct' serves as the sole
standard violates
the due process clause of the Fourteenth Amendment by reason
of its
vagueness, or, in the alternative, violates the First
Amendment as
embodied in the Fourteenth by reason of its vagueness and overbreadth.
I have said that these doctrines are applicable 'in some
measure'. It is
neither necessary nor wise presently to decide whether they
are applicable
to disciplinary proceedings in which the range of possible
sanctions is
mild, such as the denial of social privileges or a minor
loss of academic
credits or perhaps expulsion from a specific course or
perhaps a brief
suspension. Nor is it necessary or wise presently to decide
whether the
standards of vagueness and overbreadth are to be applied as
stringently to
university regulations of conduct as to criminal statutes in
non-university life. Nor is it necessary or wise presently
to decide
whether these standards are to be applied with equal
stringency in every
phase of the life of the university; in non-university
society, it appears
that they are not applied with equal stringency to economic
regulations,
regulations of speech or assembly, public employment, penal
institutions,
court room decorum, the military establishment, and other
situations; it
may be that within the university community the standards
may permissibly
apply differently to the teacher's control of the classroom, demonstrations,
dormitory life, picketing, parking regulations, and decorum in disciplinary
hearings.
The judgment here declared is that a standard of
'misconduct',
without more, may not serve as the sole foundation for the imposition
of the sanction of expulsion, or the sanction of suspension
for any
significant time, throughout the entire range of student
life in the
university.
Chapter 11.02, Laws and Regulations of the University of
Wisconsin
I turn, then, from the defendants' contention that the term 'misconduct'
alone is sufficient to support the imposition of serious disciplinary sanctions
for the behavior which allegedly occurred on the campus on October 18.
I turn to the only university rule or regulation, then in existence, which
defendants continue to assert as a basis for such disciplinary sanctions. This
is Chapter 11.02 of the Laws and Regulations of the Madison campus of the
University of Wisconsin, which provides:
'Scope of Student Freedom. Students have the right, accorded
to all
persons by the Constitution, to freedom of speech, peaceable
assembly,
petition and association. Students and student organizations
may examine
and discuss all questions of interest to them, and express
opinions
publicly as well as privately. They may support causes by
lawful means
which do not disrupt the operations of the University, or
organizations
accorded the use of University facilities.'
*992
The language of Chapter 11.02 does not lend itself readily
to the
construction that it is a prohibitory regulation. When it
appeared in this
action, nevertheless, that the defendants viewed it as a
prohibition and
that they intended to persist in disciplinary proceedings
for alleged
violations of the prohibition, I considered myself, as the
district judge,
constrained to view it as an 'order made by an
administrative board or
commission acting under State statutes', 28 U.S.C. § 2281.
Viewed as an
'order' I considered it of statewide import. Since an
injunction against
its enforcement was being sought upon the ground that it
violates the
Constitution of the United States, I considered that the
issue required
the convening of a three-judge court. The Chief Judge of the
Circuit
disagreed. In an order entered herein declining to convene a
three-judge
court, the Chief Judge commented in part as follows with
respect to
Chapter 11.02:
'It is not a regulation, but merely a statement of the
rights of students.
It contains no proscriptions or sanctions. Nor is it
compulsory * * *. We
are not concerned here with a statute or University
regulation requiring a
student to perform an act, i.e., enroll in a compulsory
military training
course of instruction, or precluding the admission or
enrollment of a
student because of race. We are reviewing a so-called
regulation which is
merely a broad declaration of rights extended to students of
the
University of Wisconsin, whose support of causes is limited
to the use of
'peaceful means which do not disrupt the operations of the
University, or
organizations accorded the use of university facilities.''
The disposition of the challenge to Chapter 11.02 was left
to the single
district judge.
The resulting situation is anomalous. Under the view
reflected in the
comments of the Chief Judge of the Circuit, Chapter 11.02 is
not available
to the defendants as a basis for disciplinary action.
However, it is
alleged (obviously not frivolously, as appears from the
exhibits attached
to the complaint and from exhibits received at a hearing on
an application
for temporary restraints) that the defendants do in fact
assert that
Chapter 11.02 is a prohibitory regulation which may serve as
a basis for
disciplinary action; counsel for the defendants represent
that defendants
intend so to employ and apply Chapter 11.02. Under the
circumstances, I
will construe Chapter 11.02 as if it forbids students to
'support causes
by means which disrupt the operations of the university, or
organizations
accorded the use of university facilities.' [FN9]
Conceivably, viewed as a prohibition, Chapter 11.02 could be
construed only to forbid students to 'support causes by
unlawful means
which disrupt the operations of the university, or
organization accorded
the use of university facilities.' However, the actual
language is: 'They
may support causes by lawful means which (means) do not
disrupt * * *.'
The most reasonable construction is that it was intended to
view with
disfavor those who support causes by lawful means which do
disrupt. Thus I
conclude that, viewed as a prohibition, Chapter 11.02
forbids students to
support causes by otherwise lawful means if these means
disrupt the
operations of the university. However, even if it were
construed as
prohibiting only 'unlawful' means which disrupt, my
conclusion concerning
the vagueness or overbreadth would be unchanged.
Faculty Document 104, embodying Chapter 11 of the Laws and
Regulations of
the University of Wisconsin (Madison campus), was approved
by the faculty
December 12, 1966 (Defendants' Exhibit 1, received at a
hearing on the
application for a temporary restraining order). Chapter 11
is entitled
'University Policies on Use of Facilities and Outside
Speakers', and it
consists of 15 sections, some of which are entitled:
'University Policy on
Student Freedom', 'Policy of the Board of Regents on Student
Freedom', and
'Regulation of Student Political *993 Activity'. Chapter 11.02 [FN10] is entitled
'Scope of Student Freedom'. Moreover, the language of Chapter 11.02, under
challenge here, expressly deals with the means by which students may 'support
causes'. Therefore, Chapter 11 in general and Chapter 11.02 in particular are
addressed to the area of First Amendment freedoms, as distinguished, for
example, from regulation of automobiles on the campus or from establishing
academic requirements for a degree. In this area, when the
potential for the
imposition of serious sanctions is present, the standards of
vagueness and
overbreadth are unquestionably applicable; whether with a
stringency equal
to that operable in the criminal law it is not necessary to
decide.
FN10. 'Section 11.02' might be a more appropriate
designation that
'Chapter 11.02', since 1u.02 is a section of Chapter 11.
However, it is
referred to in some pleadings and other documents as
'Chapter 11.02' and
so this designation has been employed in this opinion.
Obviously it is not a simple matter to draft a regulation
which deals with
means by which 'causes' are supported or opposed, and which
undertakes to
prohibit those means unprotected by the First Amendment
without impairing
those which are so protected, and which also avoids the vice
of vagueness.
I appreciate that those who drafted and approved Chapter
11.02 may
reasonably have supposed it sufficient to use a general
phrase, such as
'lawful means which do not disrupt the operations of the
university', and
allow its narrower meanings and scope 'to be hammered out
case by case * *
*.' Dombrowski v. Pfister, 380 U.S. 479, at 487, 85 S.Ct.
1116, at 1121,
14 L.Ed.2d 22. But in the view I have taken, expressed in
the preceding
section of this opinion, such vagueness or overbreadth, or
both, are
impermissible in the First Amendment area when the potential
of serious
disciplinary sanctions exists. When the standards of
vagueness and
overbreadth are applied to Chapter 11.02, however mildly, I
am obliged to
find it invalid. Neither the element of intention, nor that
of proximity
of cause and effect, nor that of substantiality, for
example, is dealt
with by its language. Nor does it contain even the most
general
description of the kinds of conduct which might be
considered disruptive
of the operations of the university, nor does it undertake
to draw any
distinctions whatever as among the various categories of
university
'operations'.
I conclude that Chapter 11.02 is unconstitutionally vague.
Assuming, again with difficulty as was true with respect to
'misconduct' as a standard, that the term 'lawful means
which do not
disrupt the operations of the university' is sufficiently
definite to
avoid the vice of vagueness, I conclude that it is overly
broad. As
explained above (at page 985), when the end can be more narrowly
achieved, it is not permissible to sweep within the scope of
a prohibition
activities that are constitutionally protected free speech
and assembly.
And one may attack such an overly broad prohibition although
his own
conduct may have been constitutionally punishable had the
rule been more
narrowly drawn. In such a situation, 'possible applications
of the (rule)
in other factual contexts besides that at bar' may be taken
into account
in appraising the rule's inhibitory effect upon First
Amendment freedoms.
NAACP v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 337, 9
L.Ed.2d 405.
A 'possible application' of Chapter 11.02 in a practical,
realistic
factual context is its application to the organizing of a
mid-day campus
mass meeting, otherwise lawful, as a 'means' of
demonstrating 'support'
for the 'cause' of peace or civil rights. If a substantial
number of
students are attracted to the mass meeting and absent
themselves from
classes scheduled at that hour, the 'operations of the
university' may
well be 'disrupted'.
*994
Another 'possible application' of Chapter 11.02 to a
practical and
realistic factual context is its application to an otherwise
lawful campus
meeting of a group to support a cause which is so offensive
to others that
the latter are moved to physical attack upon those in
attendance. See
Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93
L.Ed. 1131.
The meeting may well be a means which disrupts the
operations of the
university.
I conclude that Chapter 11.02 violates the First Amendment,
as embodied in
the Fourteenth, in that its prohibitory scope is overly broad.
The judgment is to declare that Chapter 11.02 is
unconstitutional and
invalid by reason of its vagueness and overbreadth.
Prayer for Injunctive Relief
I have declared herein that Chapter 11.02 is
unconstitutional and
invalid. I had previously temporarily enjoined its
enforcement. I conclude
now that its enforcement should be permanently enjoined.
I have also declared herein that a standard of 'misconduct',
without
more, may not serve as the sole foundation for the
imposition of the
sanction of expulsion, or the sanction of suspension for any
significant
time, throughout the entire range of student life in the
university. I had
not previously temporarily enjoined its use and, as the
complaint alleges,
it apparently has in fact been used since October 18, 1967,
as the basis
for the imposition of the sanction of expulsion. For reasons
which I am
about to explain, I conclude that I should not presently
prospectively
enjoin the use of 'misconduct' as a standard for the
imposition of
disciplinary sanctions by the university and that, for the
present, the
use of this standard for the imposition of disciplinary
sanctions by the
university should be permitted to await judicial review,
case by case,
following the imposition of the sanction.
At the time I was called upon to determine whether the
defendants should
be temporarily restrained from employing 'misconduct' as a
standard for
the imposition of disciplinary sanctions, I made the
following comments in
an opinion and order entered December 11, 1967:
'If the temporary restraining order is entered, further use
of what the
plaintiffs characterize as 'the common law-type doctrine of
'misconduct'
as part of the inherent power' of the faculty will be stayed
with respect
to the October 18, 1967, incident.
'The significance of such an order cannot be evaluated
without mention of
the pendency herein of another motion for an order for
temporary
reinstatement of three students who are alleged to have been
expelled by
the university on November 30, 1967. The expulsions,
presumably, were an
exercise of the asserted power, whether inherent or
statutory, to
discipline pursuant to 'common law-type doctrine of
'misconduct'. * * *'
'Moreover, although the temporary restraining order
presently to be
decided upon would be limited by its terms to the October
18, 1967,
incident, it would be idle to suppose that its implications
would be
overlooked. The point has not been developed as yet in
pleadings,
exhibits, testimony, briefs, or oral argument, but my
present
understanding is that much regulation of student conduct at
the University
of Wisconsin, entirely apart from the October 18 incident,
rests upon this
assertion of power in the faculty to proceed under a 'common
law-type
doctrine of misconduct.'
'My understanding, further, is that the students who are and
who have been
the subjects of the disciplinary proceedings growing out of
the October
18, 1967, incident enjoy a right of appeal within the
university, and, as
defendants appear to concede, may seek review in an
appropriate court
thereafter. In this opinion, I have expressed doubts
concerning the
constitutional adequacy of these remedies. However, with
respect to the
balancing *995 of immediate interests which would be affected by the
issuance of a temporary restraining order, I conclude that the adverse
effects upon the plaintiffs which would flow from the denial of the
temporary restraint are outweighed by the adverse effects upon the
university as an institution which would flow from granting it.'
Since those words were written, I have had the benefit of
extensive
briefing by counsel. Since the time at which that briefing
was completed,
I have consciously refrained from entering this opinion and
order, in the
hope that all those concerned, including the court, might
gain some
additional insight into the problem.
Logic would seem to require that the declaration of
invalidity with
respect to the standard of 'misconduct' be accompanied by
injunctive
relief. As I have said above (pages 984-985), this
prospective,
anticipatory, wholesale method of attack upon vague and
overly broad
prohibitions has been vindicated by the Supreme Court. The
principal
reason for permitting this method of attack-- as
distinguished from
retrospective, case by case, review of the validity of
prohibitions, as
actually applied-- is said to be that the mere presence or
existence of
such prohibitions in the area of First Amendment freedoms
may have a
'chilling effect' upon the exercise of these freedoms,
Dombrowski v.
Pfister, 380 U.S. 479, 486-487, 85 S.Ct. 1116, 14 L.Ed.2d 22;
NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405,
which are accorded an exalted and prime position in the constellation of
constitutional values.
Whatever the apparent dictates of logic, the same
considerations which
prompted me to withhold the temporary injunctive relief
sought with
respect to the 'misconduct' standard prompt me now to withhold
permanent injunctive relief with respect to this standard.
To hold, as I have held herein, that the university may not
escape the
necessity to formulate reasonably definite and narrow
regulations, at
least in some areas of student life and at least with
respect to the
imposition of serious sanctions, will itself require a
considerable
readjustment within the university. To take a second step--
that is, to
confront the university with a sudden application of the
tests of
vagueness and of overbreadth in a prospective, anticipatory,
and wholesale
manner-- is to impose too radical a transitional strain upon
the
institution. It is not a matter of record in this action
whether the
university has anticipated the judicial declarations
contained herein. But
even assuming that it has done so to a degree, it is
unreasonable to
suppose that there has been sufficient opportunity for it to
review the
framework of its laws and regulations in the light of these
judicial
declarations.
In the non-university society, the regulation of conduct is
reflected in a
complex of legislative enactments, administrative orders and
regulations,
common law rules, and judicial declarations which have
developed over many
years by lawmakers aware or presumably aware that their
handiwork was
subject to constitutional scrutiny. To apply that scrutiny
to a given
statute or ordinance, for example, involving First Amendment
freedoms, to
apply it at the instance of a challenger whose own conduct
is unprotected
by the First Amendment, to find the statute or ordinance
vague or overly
broad, and to declare it invalid and to enjoin its
enforcement, is strong
medicine but it considered to be justified in terms of the
overriding
importance of freedom of expression in our society.
Dombrowski, supra, 380
U.S. at 486-487, 85 S.Ct. 1116. Presumably, the
consequences, though
serious, are reparable. The particular statute or ordinance,
representing
a small part of the total complex of rules, may be redrafted
and
reenacted, and the hole filled.
But historically the regulation of conduct within the
university has been
the handiwork of lawmakers who have had little reason to
suppose that it
would be subjected to constitutional scrutiny, at least in
substantive
terms. Not only to *996 subject it to such scrutiny, as I have held it must be,
but simultaneously to recognize special rules of standing to challengers and
to enjoin enforcement of vague or overly broad regulations, is too strong
medicine. Its effects cannot immediately be perceived. Whether the resulting
holes in the complex of the university's regulations of conduct would be few
and minor and readily filled, or numerous and major and
difficult to fill,
cannot be evaluated by this court on this record. A
reasonable time must
be permitted for the university to review its situation.
Even so, it will
be necessary to compress into a very short interval a
process which has
required many years in non-university society. For the
present, to grant
injunctive relief and to leave the university defenseless,
so far as its
regulation of conduct is concerned, would be to permit, and
possibly to
encourage, a situation in which many values, including the
exercise of
First Amendment freedoms themselves, might be impaired.
I have concluded that injunctive relief with respect to the
application of
the standard of 'misconduct', without more, should be denied
in this
action, and that the plaintiffs and the members of their
classes should be
left to seek judicial review of the validity of this standard
retrospectively, case by case, as it has actually been applied.
In the future and after a reasonable time, depending of
course upon
intervening rulings by superior courts, this court will be
prepared to
afford injunctive relief to parties who may seek it,
consistently with the
judicial declarations contained herein.
Accordingly, it is hereby ordered and adjudged:
1. that a standard of 'misconduct', without more, may not
constitutionally
serve as the sole foundation for the imposition, by the
University of
Wisconsin at Madison, of the sanction of expulsion, or the
sanction of
suspension for any significant time, throughout the entire
range of
student life in the university;
2. that Chapter 11.02 of the Laws and Regulations of the
University of
Wisconsin at Madison is unconstitutional and invalid because
it violates
the Fourteenth Amendment to the Constitution of the United
States by
reason of its vagueness and overbreadth; and
3. that the defendants, and each of them, and their agents,
assistants,
employees and successors are hereby permanently enjoined
from further use,
operation or enforcement of Chapter 11.02 of the Laws and
Regulations of
the University of Wisconsin at Madison.