Asher v. Harrington

Decision Date13 April 1972
Docket NumberNo. 71-1075,71-1116.,71-1075
Citation461 F.2d 890
PartiesJames P. ASHER et al., Plaintiffs-Appellants, v. Fred Harvey HARRINGTON et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

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Richard O. Wright, Michael J. Zimmer, John P. Savage, Milwaukee, Wis., Davis, Kuelthau, Vergeront & Stover, Andrus, Sceales, Starke & Sawall, Foley & Lardner, Milwaukee, Wis., of counsel, for plaintiffs-appellants.

Ralph W. Bushnell, Madison, Wis., Stafford, Rosenbaum, Rieser & Hansen, Madison, Wis., of counsel, for defendants-appellees.

Before SWYGERT, Chief Judge, DUFFY, Senior Circuit Judge, and CAMPBELL, Senior District Judge.*

SWYGERT, Chief Judge.

This is a consolidated appeal of two actions by the district court: the dismissal of plaintiffs' complaint for failure to state a federal cause of action, and the denial of leave to file an amended complaint on the grounds that appeal of the initial dismissal divested the district court of jurisdiction. We affirm both holdings.

Plaintiffs are students at the University of Wisconsin; the defendants include the president and the regents of the university and the chancellors of the Madison and Milwaukee campuses. The complaint was precipitated by the defendants' actions, which plaintiffs have characterized as their "failure to reasonably maintain the university in operation for the benefit of the majority of students," during the period of campus demonstrations following reports of American military activities in Cambodia in April 1970. Federal jurisdiction is claimed under 42 U.S.C. § 1983 on the basis of a deprivation of the plaintiffs' civil rights, and was rejected by the district court which dismissed the complaint. Asher v. Harrington, 318 F. Supp. 82 (E.D.Wis.1970). Plaintiffs filed a motion for leave to amend the complaint under Rule 60(b), Fed.R.Civ. P. Before the district court ruled on this motion, plaintiffs appealed the dismissal of the original complaint to this court. Subsequently, the district court held that the appeal of the original complaint divested it of jurisdiction to consider the motion to amend, and plaintiffs challenge that holding.

I

Review of the district court's first action requires a careful evaluation of the plaintiffs' original complaint. In the first count of the complaint plaintiffs aver a denial of rights and privileges under the first and fourteenth amendments. In paragraph 9 they claim that they were entitled to

certain individual rights and privileges including but not limited to the following: to pursue an education at the University; the unencumbered use and enjoyment of the facilities and grounds of the University while pursuing their education at said University; to attend classes in study courses conducted under the tutelage and supervision of qualified faculty and administrator personnel, said classes leading to the award of graduation credits prerequisite to a degree from the University.

In paragraph 11 they charge the defendants with depriving them of the rights described in paragraph 9 by causing the "wholesale misuse" of university facilities and by allowing acts of "physical coercion" and "intimidation" to occur. It is this deprivation—the suspension of the normal educational acitivities they have described—which plaintiffs maintain is equivalent to a violation of their rights of free speech and assembly, equal protection, and due process.

The second count claims a denial of equal protection. It describes regulations adopted by the university which defendants are charged with disregarding. It alleges that these violations also resulted in denying plaintiffs their rights to the normal educational activities outlined in paragraph 9 of the first count, and that this denial amounts to a deprivation of equal protection under the fourteenth amendment.

The third count alleges that the university breached its agreement with the students to provide the educational opportunities specifically described in various university publications. This claim sounds in contract and must qualify for federal jurisdiction on its own merits or be cognizable in federal court under the doctrine of pendent jurisdiction.

The district court held that the first two counts did not qualify as civil rights claims. This determination was not a judgment as to the technical insufficiency of the pleadings. The court was not holding that the complaint failed to allege specific facts to buttress its conclusions where notice to the opposing parties is the principal policy at stake. At the very minimum, the facts pleaded do support the conclusion that normal educational activities were suspended as alleged in both counts. The critical question before the district court and on this appeal is whether the claimed deprivations are of federal constitutional significance. As in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1945), the issue is one of jurisdiction rather than specificity:

Before deciding that there is no jurisdiction, the district court must look to the way the complaint is drawn to see if it is drawn so as to claim a right to recover under the Constitution and laws of the United States. . . . Allegations far less specific than the ones in the complaint before us have been held adequate to show that the matter in controversy arose under the Constitution of the United States. 327 U.S. at 681-682, 66 S.Ct. at 776.

We do not judge the merits of the complaint at this juncture; we must consider only whether the rights claimed to be abridged are rights protected under the first or fourteenth amendments of the Constitution in order to qualify for federal jurisdiction.

Plaintiffs maintain that the continuance of normal educational activities is an aspect of academic freedom protected by the first amendment. Though we agree that first amendment rights are intertwined in the educational process, we find plaintiffs' claim sweeps too broadly. Where courts have been concerned with applying first amendment protection of thought and inquiry to the unique demands of a university, the results have been more limited. They have considered such rights as the right of a university to organize its educational facilities without state intervention, the rights of professors to independently determine research needs and curriculum, and to freely engage in the political activities of citizens, and more recently, the rights of students to free expression within and without the classroom.

Plaintiffs' claim would greatly extend judicial protection since it asks that courts not only guarantee these traditional rights to free expression and inquiry, but also review the particular institutional setting in which they are exercised. Judicial concern is here directed not to whether professors and students were free to speak or to inquire during the months of April and May 1970, but the form in which that inquiry took place. The duty we are asked to acknowledge is not the university officials' duty to protect the speech rights of students since there are no allegations that university decisions during this period, either formally or in their implementation, silenced any political faction or hindered the expression of any views. Rather, the complaint is premised upon the duty of university officials to protect those rights of students which are allegedly embodied in the university's normal educational activities. That these rights relate to curricular form is apparent. They include not only the right "to pursue an education at the university" but also the right "to attend classes in study courses conducted under the tutelage and supervision of qualified faculty and administrator personnel, said classes leading to the award of graduation credits prerequisite to a degree from the university." Indeed, under the terms of the complaint, a university that switched to a tutorial system of education on the English model might be vulnerable to charges of first amendment violations.

Neither the cases cited by the plaintiffs nor the requirements of academic freedom support this extension of the first amendment's protections. In Keyishian v. Bd. of Regents of the Univ. of N. Y., 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), for example, the Court found New York's teacher loyalty laws unconstitutional on the grounds that the first amendment "does not tolerate laws that cast a pall of orthodoxy over the classroom." 385 U.S. at 603, 87 S.Ct. at 683. But in holding that the classroom was entitled to protection as the "marketplace of ideas," the Court was not suggesting that the classroom was the only setting that would so qualify. Indeed, to call upon courts to delineate the specific form in which academic inquiry must occur would itself place an impermissible burden on academic freedom. Respect for the autonomy of educational institutions has resulted in focusing judicial protection of first amendment rights primarily on extra-curricular speech and assembly. Courts have generally hesitated to review purely academic matters, as in cases involving administrative decisions about curriculum, where the danger of impinging upon the authority of the institution to determine educational programs was greatest. Developments in the Law-Academic Freedom, 81 Harv.L.Rev. 1045, 1151-52 (1968).

These considerations are especially compelling in the instant case. We are at a loss to ascertain the standards by which federal courts are to judge the right to continue normal educational activities. We find no guidance in the first amendment itself or in the cases construing it. Clearly, the plaintiffs are not suggesting that we have the power—quite apart from the competence—to evaluate which aspects of a university's functions we consider to be "normal." Rather, plaintiffs are suggesting that we take statements of university officials in catalogues and other publications at face value as defining what constitutes education for that institution. As...

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