464 F.2d 136 (8th Cir. 1972), 71-1338, Papish v. Board of Curators of University of Missouri

Docket Nº:71-1338.
Citation:464 F.2d 136
Party Name:Barbara Susan PAPISH, Appellant, v. The BOARD OF CURATORS OF the UNIVERSITY OF MISSOURI et al., Appellees.
Case Date:June 15, 1972
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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464 F.2d 136 (8th Cir. 1972)

Barbara Susan PAPISH, Appellant,

v.

The BOARD OF CURATORS OF the UNIVERSITY OF MISSOURI et al., Appellees.

No. 71-1338.

United States Court of Appeals, Eighth Circuit.

June 15, 1972

Submitted Jan. 11, 1972.

Rehearing and Rehearing En Banc Denied Aug. 13, 1972.

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David N. Ellenhorn, New York City, Melvin L. Wulf, American Civil Liberties Union Foundation, New York City, Irving Achtenberg, Kansas City, Mo., for appellant.

Dennis J. Stewart, Jackson A. Wright, Marvin E. Wright, Columbia, Mo., for appellees.

Before VAN OOSTERHOUT, Senior Circuit Judge, and ROSS and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

This is a student "rights" case. It provides yet another example of the imaginative and extensive litigation in this area which seems to have as its purpose the attainment of plenary judicial oversight of the administration of tax-supported educational institutions. 1 In the

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present case, the issue arises in the context of a student dismissal, after service of written charges and after a full and fair hearing, for violation of a University rule of conduct.

I

The facts are not in dispute. Barbara Susan Papish, then a 32-year-old graduate student 2 in the University of Missouri School of Journalism, Columbia campus, was, on June 6, 1969, dismissed from the University, effective March 26, 1969, on the ground that she violated paragraph B of Article V of the By-Laws of the University's Board of Curators. The Article reads, in pertinent part, as follows:

"Paragraph B: Students enrolling in the University assume an obligation and are expected by the University to conduct themselves in a manner compatible with the University's functions and missions as an educational institution. For that purpose students are required to observe generally accepted standards of conduct. Obstruction of University teaching, research, administration or other activities, indecent conduct or speech, failure to comply with requests of University officials in the performance of their duties and violations of the laws of the city, state or nation, are examples of conduct which would contravene this standard. (Emphasis supplied).

"This standard applies to all forms of student conduct and activity, and registration as a student constitutes full acceptance of the fundamental standard as well as other standards of conduct which may be adopted in implementation of this standard."

At the time of her dismissal, Miss Papish was on disciplinary 3 and academic 4 probation.

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The facts of significance may be summarized as follows. By letter under date of March 12, 1969 Miss Papish was given notice by the Dean of Students of the University that she was charged with

"violating on, or about February 18 and 19, at Columbia, Missouri, the General Standard of Student Conduct as set forth in Article V, Sections A and B of the By-Laws of the Board of Curators by failing to conduct yourself in a manner compatible with the University's functions and missions as an educational institution, in the following particulars:

"[t]hat while you were on a status of disciplinary probation you distributed or aided in the distribution of the Volume IV, No. 3, February 1969 edition of the Free Press Underground containing forms of indecent speech, on the campus of the University of Missouri-Columbia, with knowledge of the contents of the publication, and with knowledge that the Dean of Students had previously declared the forms of speech, therein appearing, indecent, and distribution thereof improper on the University campus under existing rules and regulations." 5

From the verified affidavit of Miss Papish it is revealed that

"[she] is a member of the staff of the 'Free Press Underground', a newspaper published by the Columbia Free Press Corporation, a non-profit corporation organized under the laws of Missouri. The 'Free Press Underground', which has been published since 1965, disseminates news and opinion of general interest about University, local and world affairs. The paper generally is published monthly during the school year, and is distributed on the University campus and elsewhere. Written permission to distribute the paper on campus was obtained from the Business Officer of the University on April 30, 1967 in accordance with University regulations. 6 "On February 16, 1969, I and a number of other students took part in the distribution of Volume IV, No. 3, February 1969 edition of the 'Free Press Underground' on the Columbia campus of the University, in front of the Memorial Union. Although no disruption

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of the University's functions occurred in connection with the distribution of the newspaper, I and three other students who were involved in its distribution were arrested, at the instigation of the University. 7

"The February 1969 edition of the 'Free Press Underground' contained two features which the University later contended were 'indecent'. The front cover duplicated a political cartoon which appeared in the February 1969 edition of 'The Movement', a liberal paper of national circulation. The cartoon shows helmetted, clubwielding policemen raping the Statue of Liberty and the Goddess of Justice. The cartoon is captioned '. . . With Liberty and Justice for All.' To me, the cartoon depicts and symbolizes the evils of authoritarian brutality. As I said in an article in the 'Free Press Underground', 'Someone might consider the cartoon on the cover of this issue "vulgar". It is not! it is obscene. But it is a social comment concerning a greater obscenity. Chicago cops are obscene; nepalm is the greatest obscenity of the 20th century; and administrators who fear a different view are also obscene.' The theme of the cartoon is purely political, and the University's act of labelling it 'indecent' can be viewed as political censorship. (Emphasis supplied).

"The second feature of the issue which the University objected to was an article concerning the acquittal of a young New Yorker after a trial for assault and battery by means of a dangerous weapon. The article was reprinted from a political newspaper, the 'New Left Notes'. The article, which discussed the trial, the composition of the jury and similar matters, was headlined 'Motherf. . . . . Acquitted.' The subject of the article is Ben Morea, the leader of a group in New York's Lower East Side called 'Up Against the Wall, Motherf. . . . .', also known as 'The Motherf. . . . .s'. This group is an organization purportedly dedicated to the self-defense of the poor people from police and bureaucratic harassment. The headline, 'Motherf. . . . Acquitted', was intended to describe Morea's organizational affiliation. In that context, which should have been understood by our readers, the word 'Motherf. . . . .' has absolutely no sexual or indecent connotations." (Emphasis supplied).

On March 26, 1969 Miss Papish was afforded a hearing by the Student Conduct Committee on the charges stated in the March 12 letter. The Committee made the general finding that Miss Papish, in distributing the February 1969 edition of the Free Press Underground, violated the general standard of student conduct prescribed by paragraph B of Article V and decreed her dismissal effective that date. It appears from the Committee finding that Miss Papish's then existing disciplinary probation status was a factor in its decision. The decision was appealed first to the Chancellor of the University and then to the Board of Curators and affirmed in each instance. Because her dismissal was made effective as of March 26, Miss Papish was denied credit for a ceramics course which she successfully completed subsequent to that date, but it is to be noted that she also was able to avoid the otherwise damaging consequence of recordation of the grade of "F" with regard to the other course in which she was enrolled that term. 8

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In August 1969 Miss Papish brought this action in the United States District Court for the Western District of Missouri against the University Board of Curators and against certain University officials. The complaint sought declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3), on the ground that Miss Papish's dismissal from the University was invalid under the First and Fourteenth Amendments. The District Court denied relief on the grounds (1) that Miss Papish "does not have a federally protected or other right to attend a state university of a state of which she is not a domiciled resident or citizen" 9 and (2) that "the conduct of plaintiff for which she was dismissed is not within First Amendment protections." Papish v. Board of Curators of the University of Missouri, 331 F.Supp. 1321, 1326 (1971). In this court, Miss Papish mounts an attack on these findings along three principal lines. First, she asserts that her dismissal is improper because it rests solely upon her exercise of freedoms which the first amendment guarantees. Second, it is argued that paragraph B of Article V of the by-laws of the University Board of Curators is invalid because it is impermissibly vague and because its language demonstrates a potential for sweeping improper applications posing a substantial likelihood of deterring important First Amendment freedoms. Third, the contention is made that Miss Papish's residence is irrelevant to her claim that University officials acted in violation of her constitutional rights. That being so, it is said that the District Court erred in its finding that Miss Papish was precluded from obtaining relief because, due to her Connecticut residency she did not possess a federally protected right to attend the University of Missouri. 10 For reasons soon to appear, we affirm the judgment of the District Court, but we do so on grounds which depart somewhat from the reasoning followed by the able and...

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