Norton v. Discipline Committee of East Tenn. State Univ., 19107.

• Decision Date: 28 November 1969
• Docket Number: No. 19107.,19107.
• Parties: Marietta NORTON, Oscar Heffner, Richard Crawford, Joseph Garber, David Coker, George Ball, Robert McCall and Mike Haga, Plaintiffs-Appellants, v. The DISCIPLINE COMMITTEE OF EAST TENNESSEE STATE UNIVERSITY, Mack Davis, Ella Ross, Dorman Stout, Willene Paxton, Joan Dressel, John Mercer, Phil Thomas, East Tennessee State University, Delos P. Culp and The State Board of Education of and for The State of Tennessee, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

419 F.2d 195 (1969)

Marietta NORTON, Oscar Heffner, Richard Crawford, Joseph Garber, David Coker, George Ball, Robert McCall and Mike Haga, Plaintiffs-Appellants, v. The DISCIPLINE COMMITTEE OF EAST TENNESSEE STATE UNIVERSITY, Mack Davis, Ella Ross, Dorman Stout, Willene Paxton, Joan Dressel, John Mercer, Phil Thomas, East Tennessee State University, Delos P. Culp and The State Board of Education of and for The State of Tennessee, Defendants-Appellees.

No. 19107.

United States Court of Appeals Sixth Circuit.

November 28, 1969.

Karen D. Ennis, Nashville, Tenn., for appellants; Charles Morgan, Jr., Reber F. Boult, Jr., Atlanta, Ga., on brief; Melvin L. Wulf, Eleanor Holmes Norton, New York City, of counsel.

Thomas E. Fox, Deputy Atty. Gen., Nashville, Tenn., for appellee.

Before WEICK, O'SULLIVAN and CELEBREZZE, Circuit Judges.

WEICK, Circuit Judge.

Appellants, students of East Tennessee State University, were suspended by the University's Discipline Committee after a hearing on charges of distributing on the campus "material of a false, seditious and inflammatory nature." This material was calculated to cause a disturbance and disruption of school activities and to bring about ridicule of and contempt for the school authorities. The students perfected an administrative appeal to the President of the University, who upheld the decision of the Discipline Committee.

The students then instituted the present action in the District Court under the civil rights statutes for a mandatory injunction to compel their reinstatement, claiming that their constitutional rights had been denied them. The District Judge, who had previous experience in cases of this type,¹ granted them an evidentiary hearing. Each of the appellants, the Chairman of the Discipline Committee, and the President of the University testified. A stipulation was admitted in evidence containing the alleged inflammatory literature and an admission that each of the appellants distributed one or both pieces of it. Transcripts of the hearings conducted by the Discipline Committee were received in evidence. The District Judge at the conclusion of the hearing rendered an oral opinion and adopted findings of fact and conclusions of law, in which he denied the injunction. This appeal followed.

Two pieces of the alleged inflammatory literature were distributed, one on May 28, 1968, and the second on May 30, 1968, the latter being only one day before the beginning of final examinations. The Discipline Committee took immediate action and sent three-day notices of a hearing to be held on the charges to all of the students who had distributed the literature except two students who received only one day's notices. Copies of the offensive literature are appended hereto.

Dean Davis, Chairman of the Discipline Committee, testified:

"I felt that the whole idea was designed to disrupt the functioning of the University and to adversely prejudice the students on the campus. I felt that it * * * that the contents of both handouts could conceivably cause an eruption on the campus which would disturb the functioning of the University."

Dr. Culp, the President of the University, testified:

"Q. Dr. Culp, did you think that these handouts tended to disrupt the school program and interfere with the education of people who were concerned about acquiring an education?

"A Yes, I had very definite fears that we might have serious consequences on the campus."

The District Judge was of the view that the inflammatory nature and disruptive characteristics of the literature appeared on its face. He made the following finding of fact:

"XIV

"That the Discipline Committee could properly have found that these documents were abrasive, abrupt and rude in character and that they were calculated to arouse resentment both on the part of the administration and on the part of the students of East Tennessee State University.

"XV

"That at least one document is susceptible of the interpretation that the writer of the article is encouraging demonstrations similar to those which had occurred on other campuses throughout the country; and the article can be reasonably and logically construed to mean that the writer of the article was calling upon the students of East Tennessee State University to engage in the same kind of conduct and activity which had occurred at Columbia University and elsewhere." (202a-203a)

This finding would appear to be supported by the following excerpt from the first sheet:

"And how has the ETSU student body reacted: Have they precipitated a revolution like French students? No. Have they brought about an entirely new and liberal administration like Polish students? — No. Have they been the forerunners of a new democratic spirit like Czech students? — No. Have they seized buildings and raised havoc until they got what they were entitled to like other American students? — No. What then have the ETSU students done? They have sat upon their rears and let the administration crap upon their heads, thats what.

That\'s right folks, in case you\'d not noticed, ETSU students are in the vast majority apathetic — they open their mouths only to yawn, life sic their arms only to stretch, and like unto L\'il Abner\'s Smoes, exist only to serve those who would take advantage of them.

Well, Smoes, what have you to look forward to next year? Maybe the administration will buy some Dean\'s turnip patch for ninety grand. Maybe all the girls will be required to wear chastity belts (the keys to be kept on reserve at the library — check \'em out for an hour at a time). Maybe social hours will be made applicable to males as well as females. Maybe — Maybe — Maybe —

Maybe students will get some sense and learn that this should cease and that the only way to see that it does is to stand up and fight. Maybe students will learn that the Supreme Court has declared that young people do not sacrifice their citizenship and all rights and privileges therewith by enrolling in a university. Maybe students will learn that no matter what the despots who run this school say, students have the constitutional right to protest, demonstrate, and demand their rights; that women students may not constitutionally be campussed; that students may damned well wear what they want and say what they please. And maybe, just maybe, they will discover that there are student leaders, organizers to rally around so as to assault the bastions of administrative tyranny. Maybe students will learn that at least. And remember that when the time comes to fight for what you are justly entitled to, that if you refuse to come along then you have no justification whatsoever for ever complaining again. When you are called to protest and you sit back on your butt, then, baby, that means that whatever the administration does is OK with you. When we move against them, remember, like the man says, `Put up or shut up.\'" (18a)

The language, referring to their fellow students, "Have they seized buildings and raised havoc until they got what they were entitled to like other American students", was obviously intended to call their attention to campus disturbances around the country, and would include such universities as Columbia, Berkeley, Harvard, Cornell, Ohio State and Kent State. The students were urged to "stand up and fight" and to "assault the bastions of administrative tyranny." This was an open exhortation to the students to engage in disorderly and destructive activities.

The University administration was referred to with an obscenity and called "despots". This vicious attack on the administration was calculated to subject it to ridicule and contempt, and to damage the reputation of the University.

The reference to "chastity belts" for girls is a crude, vulgar remark offensive to women students and beyond the dignity of most college students to make.

Reliance was made on the Supreme Court for declaration of the constitutional rights of the students to "damned well wear what they want and say what they please." In our opinion such reliance is misplaced. The students have no constitutional right to misbehave on the college campus.

In the second piece, which impliedly approved the first piece, the school administration was referred to as a "problem child"; and stated that it is a crime for the student to shelter by their silence that "problem child", and that the students should now reprimand "our misguided child" and educate him. "We must now educate the educators" and "teach them the lesson of reality * * * although they may be shocked by it."

Ordinarily students go to college to acquire an education, but these students apparently want to educate the teachers.

It would indeed be difficult to maintain discipline on the campus of an institution of higher learning if conduct of this type were tolerated. We would doubt that parents would send their college-age children to such an institution if they knew that the philosophy as contained in the literature was taught or sanctioned there. We cannot imagine that a student could have confidence in the teachers in a university such as the literature portrays.

Appellants contend that distribution of the two handouts was privileged under the First Amendment to the Constitution as an expression of free speech unaccompanied by acts of violence. They rely principally on Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L. Ed.2d 731 (1969), and cases cited therein. Tinker involved a few high school children who did nothing except wear black arm bands for a few days to publicize their objections to hostilities in Vietnam. These children did not urge a riot, nor were they disrespectful to their teachers.

Mr. Justice Fortas, who wrote the opinion in Tinker, was careful to mention:

"As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material

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