Center for Participant Education v. Marshall

• Citation: 337 F. Supp. 126
• Decision Date: 12 January 1972
• Docket Number: Civ. A. No. 1745.
• Parties: CENTER FOR PARTICIPANT EDUCATION, Steve Buchanan, et al., Plaintiffs, v. Stanley MARSHALL, as President of the Florida State University, et al., Defendants.
• Court: U.S. District Court — Northern District of Florida

337 F. Supp. 126

CENTER FOR PARTICIPANT EDUCATION, Steve Buchanan, et al., Plaintiffs, v. Stanley MARSHALL, as President of the Florida State University, et al., Defendants.

Civ. A. No. 1745.

United States District Court, N. D. Florida, Tallahassee Division.

January 12, 1972.

Arnold D. Levine, Tampa, Fla., Kent Spriggs, Tallahassee, Fla., for plaintiffs.

Rivers Buford, Jr., Tallahassee, Fla., Atty. State Bd. of Education, Gene T. Sellers, Tallahassee, Fla., for Board of Regents.

Robert D. Bickel, Gen. Counsel, Tallahassee, Fla., Wilfred C. Varn, Tallahassee, Fla., for Stanley Marshall, President, Florida State University.

MEMORANDUM-ORDER PRELIMINARY STATEMENT OF THE ACTION

MIDDLEBROOKS, District Judge.

On December 13, 1971, after having been denied temporary injunctive relief by this Court on October 1, 1971, plaintiff Lieberman filed a supplemental complaint for injunctive relief seeking, inter alia, a mandatory injunction "directing and requiring defendants to readmit Jack Lieberman as a student in good standing at the Florida State University, Tallahassee, Florida, without any restriction." This cause is before this Court solely for determination of the validity vel non of plaintiff Lieberman's suspension, all other issues raised by the pleadings to be heard and tried at a later time as authorized by Rule 54(b), Federal Rules of Civil Procedure.

The events giving rise to plaintiff Lieberman's suspension have been chronicled in this Court's Opinion-Order of October 1, 1971, but for purposes of this proceeding, this Court will adopt findings of fact and will incorporate them in full as part of this order.

As is pertinent herein, plaintiff alleges that defendant Marshall in suspending and dismissing plaintiff from the Florida State University has denied him certain First Amendment rights and deprived him of procedural due process and equal protection under the law. It is further alleged that the administrative procedures through which plaintiff travelled caused him to be placed in double jeopardy in violation of his Fifth and Fourteenth Amendment rights.

Defendant by answer denied the allegation that plaintiff did not receive sufficient, timely notice of the suspension hearing scheduled before defendant on November 6, 1971. It was further denied that the President of the University was not empowered to conduct a de novo hearing on suspension or to conduct appellate review of university court proceedings. It was also denied that any action by defendant Marshall resulting in plaintiff's suspension was tainted by any constitutional infirmity.

As gleaned from plaintiff's trial memorandum, the issues for determination in this proceeding may be stated as follows:

I

Whether defendant's executive order, postponing commencement of all Center For Participant Education classes until review of course syllabi could be accomplished, and the university penal code read in conjunction therewith, are unconstitutionally vague and overbroad under the First and Fourteenth Amendments to the United States Constitution. Center For Participant Education shall hereinafter be referred to as CPE.

II

Whether defendant violated plaintiff's First Amendment rights by dismissing him for engaging in a speech and assembly activity.

III

Whether due process was violated when the defendant President of the University drew the charges, investigated the case and acted as the ultimate reviewing authority.

IV

Whether the presidential review violated procedural due process in that the notice of hearing was constitutionally deficient and whether defendant in fact possessed authority to conduct such review.

V

Whether reconstruction of the trial record by the University President in the manner accomplished was a constitutional violation.

VI

Whether presidential review and suspension subsequent to university court proceedings exonerating plaintiff violated plaintiff's constitutional right not to be twice put in jeopardy for the same offense.

VII

Whether the suspension of another student at the university for a similar violation and her ultimate reinstatement as a student in good standing denied plaintiff Lieberman his right to equal protection under the law in light of his suspension and dismissal from the university.

Thus, that portion of the complaint as may be relative to this proceeding having been put at issue, this cause came on for final hearing on January 3, 1972, at which time testimony was taken and evidence was received.

FINDINGS OF FACT

(1) The purpose of the CPE program at Florida State University is to provide to the University and Tallahassee communities an academic supplement to the general academic curricula offered on campus. A wide variety of thought-provoking subjects are offered and discussed in these "courses" with the idea of stimulating new centers of interest for students and members of the community and generating broader horizons of learning. Instructors of these various "edu-groups" serve without compensation although each group is eligible for a small sum for reimbursement for materials used as course aids. Classes are conducted on campus at University facilities and under supervision of the University administration.

Plaintiff Lieberman was scheduled to serve as instructor during the fall quarter 1971 in a course entitled "How to Make a Revolution in the USA". Before the first week of CPE classes could be held, however, the defendant Marshall, President of Florida State University, per executive order, postponed commencement of all CPE classes until a review of course syllabi could be accomplished by the Board of CPE and the University administration. This action to postpone classes was concurred in by the board of directors of the CPE program.

On Thursday evening, September 23, 1971, plaintiff Lieberman had originally been scheduled to hold his first "class". Notwithstanding the executive order of defendant, which this Court finds was known to plaintiff Lieberman, plaintiff Lieberman assembled with students in university facilities on that date to hold his class. At this meeting a representative of the administration introduced himself to plaintiff Lieberman and reminded him of defendant's executive order postponing the convocation of CPE classes pending review of course syllabi. Having been given this admonition plaintiff Lieberman continued with his discussion of the course.

On the following day, Friday, September 24, 1971, plaintiff Lieberman was notified that a preliminary hearing would be conducted to determine whether he was in violation of defendant Marshall's executive order for having conducted a class on the evening of September 23, 1971. Plaintiff Lieberman then met on the afternoon of September 24, 1971, with the Judicial Officer of the University to be heard on this charge and was offered an opportunity to give explanation in his behalf. Following this administrative hearing, described in the notice to plaintiff Lieberman as a "preliminary hearing", plaintiff Lieberman was placed on interim suspension effective September 24, 1971. At the date and time of hearing before this Court on application for temporary restraining order plaintiff Lieberman had been scheduled to be heard on his "appeal" of his administrative suspension. This appellate hearing was delayed in deference to the first hearing in this Court on plaintiff Lieberman's application for temporary restraining order. Testimony disclosed that although plaintiff Lieberman had not been afforded a full plenary hearing as contemplated by the rules and regulations of the university, one would be held on short notice at his request.

Following this action the university administration disapproved the teaching of the Lieberman course and at least one other course under the aegis of CPE and Florida State University. In all other respects, however, the CPE program continued to operate.

(2) Following plaintiff's interim suspension, plaintiff requested and was granted a full hearing before the university honor court on October 11, 1971. At this hearing plaintiff was represented by private counsel. These proceedings terminated upon entry of judgment acquitting plaintiff of any violation of university rules and regulations. Thereupon, an appeal was then taken on behalf of the university to the student supreme court, which appeal resulted in affirmance of the decision of the honor court on November 2, 1971. Following the student supreme court hearing the university appealed the decision to the university president as ultimate reviewing authority.

(3) On November 3, 1971, one of plaintiff's advisors, a second year law student, was given oral notice that the defendant Marshall would review plaintiff's case on the afternoon of November 6, 1971. This student advisor in turn notified Lieberman's private counsel. Plaintiff's private counsel was also notified of the hearing by a representative of the university. The following day, a written notice to the same effect was hand delivered to plaintiff's listed place of residence informing plaintiff of the time, place and nature of the hearing and the procedure to be followed at the hearing. On November 5, 1971, plaintiff made a request through his law student advisor that a continuance in the proceedings be granted in view of the unavailability of certain of plaintiff's witnesses and in view of plaintiff's intent to attend a rally in Tampa, Florida, on the date set for hearing. This request was denied in a letter addressed to plaintiff from the university judicial officer.

(4) The president of the university conducted the hearing on November 6, 1971, as scheduled. Testimony was heard and taken and plaintiff was represented throughout the proceedings by counsel. Plaintiff, however, did not choose to attend. At this hearing all parties agreed that a transcript of the proceedings in this court on plaintiff's application for temporary restraining order would be used and in addition counsel fo...