Corporation of Haverford College v. Reeher

• Decision Date: 19 July 1971
• Docket Number: Civ. A. No. 70-2411.
• Citation: 329 F. Supp. 1196
• Parties: The CORPORATION OF HAVERFORD COLLEGE et al., Plaintiffs, v. Kenneth R. REEHER, individually and as Executive Director of the Pennsylvania Higher Education Assistance Agency, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

329 F. Supp. 1196

The CORPORATION OF HAVERFORD COLLEGE et al., Plaintiffs, v. Kenneth R. REEHER, individually and as Executive Director of the Pennsylvania Higher Education Assistance Agency, et al., Defendants.

Civ. A. No. 70-2411.

United States District Court, E. D. Pennsylvania.

July 19, 1971.

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COPYRIGHT MATERIAL OMITTED

Lawrence Silver, Dilworth, Paxson, Kalish, Levy & Coleman, Louis M. Natali, Jr., Segal, Appel & Natali, Philadelphia, Pa., for plaintiffs.

John D. Killian, Killian & Gephart, Edward Friedman, Counsel Gen., Dept. of Justice, Harrisburg, Pa., J. Shane Creamer, Atty. Gen., for defendants.

Henry W. Sawyer, III, Philadelphia, Pa. (William A. Bradford, Jr., Washington, D. C., with him on brief), for United States National Student Association, Inc., amicus curiae.

Harris L. Wofford, Jr., Bryn Mawr, Pa., for twenty-eight colleges and universities, amicus curiae.

Howard Lesnick, Philadelphia, Pa. (Robert O'Neil, Berkeley, Cal., and Herman I. Orentlicher, Washington, D. C., with him on brief), for the American Association of University Professors, amicus curiae.

Before BIGGS, Circuit Judge, and LORD, and DITTER, District Judges.

OPINION

JOSEPH S. LORD, III, District Judge.

Plaintiffs, two colleges and twelve college or university students, seek a declaratory judgment that two Pennsylvania statutes, 24 Pa.Stat.Ann. ?? 5104.1, 5158.2 (1971),¹ are unconstitutional and an injunction restraining officials of the Pennsylvania Higher Education Assistance Agency (PHEAA) from enforcing or otherwise acting under those statutes. This court has jurisdiction of the controversy pursuant to 28 U.S.C. ?? 1343, 2201, 2281, 2284, and 42 U.S.C. ? 1983. The plaintiffs have moved for summary judgment on all issues of the statutes' unconstitutionality pursuant to Fed.R. Civ.P. 56.

Plaintiffs seek to maintain this as a class action. Plaintiff Goddard College purports to represent 26 institutions which have refused to execute an agreement with PHEAA under the statute. We hold that this class is not so numerous that joinder is impracticable, Fed.R.Civ.P. 23(a), and thus Goddard shall not be treated as representative of a class for the purpose of this action. The other named plaintiffs meet the requirements of Rule 23,² and may maintain this as a class action. Haverford College represents that class of institutions which have executed reporting agreements with PHEAA in order to retain their status as "approved" institutions whose students will be eligible to receive state aid. Plaintiffs O'Shaughnessy, Hutchins, Levine, Goldman, Rabinowitz and Schaefer represent students who have lost their PHEAA loans or scholarships because they attend institutions which have refused to execute reporting agreements with PHEAA. Plaintiffs Goodwin, Sullivan and McLamb represent students at institutions signing a "Haverford" agreement³ with PHEAA who, in order to get financial aid, must disclose in a supplemental form whether they fall within the provisions of subsections (a) (1), (a) (2) or (a) (3), must agree to inform PHEAA promptly if they act so as to fall within those subsections and must authorize their institutions to verify their answers if PHEAA so requests. Plaintiffs Ingram and Casnoff represent students at institutions signing "Haverford" agreements who refuse to execute such supplemental forms and thus have lost their eligibility for financial assistance.

The record before us consists of the complaint and answer, stipulations of fact agreed on by counsel, exhibits introduced into evidence by plaintiffs and evidence offered at a hearing on plaintiffs' motion for partial preliminary relief. The undisputed factual issues in the record are the bases for determination of the merits of plaintiffs' allegations that the statutes are unconstitutionally vague and overbroad and violate the First, Fourth, Fifth, Ninth and Tenth Amendments and the due process and equal protection clauses of the Fourteenth Amendment.

I. ABSTENTION

Although neither party has raised the issue, we must consider whether we should abstain from any decision on grounds of vagueness or overbreadth in order to give the state courts an opportunity to construe the statute. This is not a case like Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), or Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971), where the Supreme Court held improper the issuance of injunctions by the Federal Court against state criminal proceedings. No state court proceedings exist relevant to this case.

Abstention is an equitable doctrine. Younger v. Harris, supra, 401 U. S. 37, 91 S.Ct. 746, 27 L.Ed.2d at 675; Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 328, 84 S.Ct. 1293, 12 L.Ed.2d 350 (1964). In light of the legislative history of the statute and its section (c) saving clause which indicates an intent to permit only verbal expression of views, we do not consider the statute "obviously susceptible of a limiting construction." See Zwickler v. Koota, 389 U.S. 241, 251 n. 14, 88 S.Ct. 391, 397, 19 L.Ed.2d 444 (1967). Where plaintiffs justifiably claim that the statute is vague and overbroad, abstention can defeat the purposes of those doctrines, which exist at least in part to protect the cautious citizen who might be deterred from engaging in conduct which the state either could not or did not intend to punish. See, e. g., Zwickler v. Koota, supra, at 252, 88 S.Ct. 391; Dombrowski v. Pfister, 380 U.S. 479, 486-487, 492, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Appropriate here are the Supreme Court's observations about abstention in the face of a vagueness challenge to a loyalty oath:

"* * * In these circumstances it is difficult to see how an abstract construction by the state courts of the challenged terms * * * in a declaratory judgment action could eliminate the vagueness from these terms. It is fictional to believe that anything less than extensive adjudications, under the impact of a variety of factual situations, would bring the oath within the bounds of permissible constitutional certainty. Abstention does not require this." Baggett v. Bullitt, 377 U.S. 360, 378, 84 S.Ct. 1316, 1326, 12 L.Ed.2d 377 (1964).

The lengthy delay which would occur if we referred this case to the state courts would occasion an equally lengthy period of impingement on the rights plaintiffs seek to protect in this action, assuming their claims to be valid. In addition, our worries about possible friction with state officials arising from failure to abstain are mitigated somewhat by the fact that the attorneys representing the state agency have never raised the abstention issue. For these reasons, in the discretionary exercise of our equity powers, Baggett v. Bullitt, supra, at 375, 84 S.Ct. 1316, we decline to abstain from deciding the merits of plaintiffs' claims.

II. VAGUENESS

Plaintiffs allege that subsections (a) (1), (a) (2) and (a) (3) of the two sections are unconstitutionally vague. They charge that the standards which govern PHEAA's eligibility determinations are so "vague that men of common intelligence must necessarily guess at their meaning" and therefore violate "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 (1926).

While the Connally test has been articulated generally as the guide to judicial determinations of vagueness, its mere recital followed by a conclusion that a statute is or is not unconstitutionally uncertain often produces seemingly inconsistent results⁴ and provides little assistance to legislators concerned with drafting definite statutes. The only reasoned approach is to look at several factors which courts have considered important in relating the rationale for the doctrine to particular statutes. Some statutory definiteness is always necessary; but the pivotal decision as to the degree of certainty depends on several considerations:

(1) The nature of the rights threatened by the uncertainty;

(2) The probability that the threatened right actually will be infringed. This has been seen as a function of what sort of tribunal applies the allegedly uncertain standard;

(3) The potential deterrent effect of the risk of such infringement. This would largely be a function of the nature of the penalty imposed by the statute;

(4) The practical power of the federal courts to supervise the administration of the allegedly vague scheme; and

(5) The extent to which the subject area necessitates verbally imprecise regulation.⁵

The determination of what rights are threatened by the alleged uncertainties in these subsections can be made by asking what it is that students will avoid doing if they are unsure of the statute's meaning.⁶ Under subsections (a) (2) and (a) (3), the student will attempt to avoid conduct which might be termed a disruption or disturbance of university activities. Certainly he would tend to avoid protests and demonstrations, many of which are protected activities under the First Amendment.⁷ A higher degree of certainty is required if a statute has potentially inhibiting effects on free speech. NAACP v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 9 L.Ed. 2d 405 (1963); Cramp v. Board of Public Instruction, 368 U.S. 278, 287, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961); Smith v. California, 361 U.S. 147, 150-151, 80 S. Ct. 215, 4 L.Ed.2d 205 (1959). Under subsection (a) (1), the student will attempt to avoid any misdemeanor. The potential threat to First Amendment freedoms from vagueness there is thus less than in subsections (a) (2) and (a) (3).⁸

The probability that First Amendment rights will be infringed in some manner by (a) (2) and (a) (3) appears substantial. The uncertain standards are being applied in the first place by an administrative agency or even a university,⁹ rather than by the state courts which can be assumed to be more sensitive to the niceties of constitutional law.¹⁰ PHEAA has broad...