Appelgate v. Dumke

• Decision Date: 03 May 1972
• Citation: 101 Cal.Rptr. 645,25 Cal.App.3d 304
• Court: California Court of Appeals Court of Appeals
• Parties: Kenneth APPELGATE et al., Appellants, v. Glen S. DUMKE, As Chancellor of the California State Colleges, Respondent. Civ. 38655.

Page 645

101 Cal.Rptr. 645

25 Cal.App.3d 304

Kenneth APPELGATE et al., Appellants, v. Glen S. DUMKE, As Chancellor of the California State Colleges, Respondent.

Civ. 38655.

Court of Appeal, Second District, Division 1, California.

May 3, 1972.

Hearing Denied June 29, 1972.

Nathan L. Schoichet, Beverly Hills, A. L. Wirin, Fred Okrand, and Laurence R. Sperber, Los Angeles, for appellants.

Evelle J. Younger, Atty. Gen., and Edmund E. White, Deputy Atty. Gen., for respondent.

THOMPSON, Associate Justice.

This is an appeal from a judgment of the superior court denying a writ of mandate sought pursuant to Code of Civil Procedure section 1085. We affirm the judgment.

Stated, as it must be, in the light most favorable to the findings of fact of the trial court (Lynch v. Spilman, 67 Cal.2d 251, 259, 62 Cal.Rptr. 12, 431 P.2d 636; Griffith Co. v. San Diego Col. for Women 45 Cal.2d 501, 508, 289 P.2d 476), the record reveals the following. In 1968, appellant William Spater was a candidate for a master's degree in art at California State College at Long Beach. The required curriculum for the degree included Art 698, obligating Spater to complete a thesis or an equivalent art project. An unofficial publication of the Art Department of California State College at Long Beach sets forth the 'steps' necessary to obtain a master's degree in art. The portion of that publication entitled 'Step VI. Thesis or Project' states: 'The Art Department requires that Art 698, Thesis or Project, be completed for a total of six units. . . . All students completing a project for Art 698 are required to exhibit the work done for the project. The procedure for scheduling the exhibit is: 1. Early each semester the Graduate Coordinator in Art, with the assistance of the Gallery Director, will publish the dates available for graduate project exhibits. 2. By memorandum, the master of arts degree adviser will request that an exhibit be scheduled for the student and will indicate the nature of the exhibit and possible date. 3. The Graduate Coordinator, working with the student, the adviser, and the Gallery Director, will schedule the exhibit and notify all parties of the exact date.'

No equivalent of 'Step VI' appears in the bulletin of the college which sets forth the official requirements for a master's degree in art. The publication of the Art Department in which 'Step VI' appears is itself not a comprehensive one. The publication requires an 'area of specialization' by the candidate for the degree. It states also: 'The Department of Art master of arts degree program provides specialization in the following: (1) art education; (2) art history; (3) crafts (areas of: ceramics, crafts, metalsmithing, or textiles); (4) design (areas of: graphic design, display, industrial, interior, or theatre); (5) illustration, printmaking, or drawing and painting.' Sculpture is thus not included within the publication's statement of areas of specialization offered by the college.

As part of his academic program leading to a master's degree, Spater enrolled in Art 698. He satisfied the requirements of the course by completing a group of ten pieces of sculpture. The components of the group consist of ten life-size nude figures made from plaster and wax. Some of the sculpture depicts sexual and erotic acts, one of which is cogently described by the trial judge as 'about an inch away from an act of perversion.' The sculpture was completed near the end of the fall semester of the 1967--68 academic year. On January 8, 1968, Dr. Robert E. Tyndall, Dean of the School of Fine Arts at the college, met with Spater and the members of his graduate committee to discuss whether Spater's project should be exhibited at the college. The committee was asked for its recommendation. Dr. Glenn, chairman of the committee, stated that Spater's thesis had been signed by the members of the committee and that a grade for Art 698 had been released which would enable Spater to receive his master's degree. Dr. Glenn expressed his opinion that Spater had met the requirements for the course but that he did not feel that the committee should recommend for or against a showing. Spater did not object to Dr. Glenn's statement.

A special meeting of the school council was convened on January 25 to discuss the Spater project in particular and the subject of 'artistic frankness, the public taste, and the School of Fine Arts' in general. No great enthusiasm was expressed for an exhibition of the Spater project. Immediately after the meeting, Spater told Dean Tyndall that he was anxious to get a 'yes or no answer' on the exhibition but that 'he did not really care one way or the other what the answer was.' Dean Tyndall concluded that 'due to the frankly sexual subject matter of the project and its realistic depiction, it would be inappropriate for there to be an exhibit of . . . (the) . . . project on the campus.' By a memorandum dated January 30, he notified Dr. Carl W. McIntosh and Dr. Donald Simonsen, president and academic vice president of the college, that the Department of Art should immediately release Spater's project to him. Dean Tyndall's decision not to exhibit the project was in accord with a college practice, there having been approximately ten instances in which no exhibition was held of a student project meeting the requirements of Art 689 although normally the Art Department staged an exhibition. Dean Tyndall informed Dr. Joseph Krause, chairman, Department of Art, that there would be no exhibition of the Spater project. On February 1, Dr. Krause informed Spater that the project would not be exhibited on campus and that it would be released to him so that he could seek an exhibition elsewhere. Spater was tendered and accepted his master's degree and ceased to be a student of the college in February 1968.

On April 1, Spater and a group of students entered the building where the project was stored and removed it to the lawn area west of Fine Arts Building number 3. There they set up an unauthorized exhibition of the project surrounding it with a rope or wire guarded by 40 to 50 students. A large crowd gathered. Handbills composed by Spater were distributed identifying the project as having been banned by the college administration. The handouts stated the exhibit would occur 'from 8 a.m. until removed' and that Spater treated the unscheduled showing as satisfying all requirements for his master of arts degree. The crowd reached approximately 2,000. Spater and his cohorts had notified the press and television so that the gathering was well covered. The group noisily shouted, jeered, and booed members of the college administration, disrupting instruction in adjoining classrooms. The exhibit was terminated between 10:30 and 11 a.m.

On April 2, Spater delivered a letter to President McIntosh stating: 'I wish to appeal the denial of my Master's Exhibit.' On April 3, he was notified to remove his sculptures from the campus. On April 15, Spater sought and was granted an extension of time to April 18 to remove the project. On April 19, he notified the college that he had 'deeded full ownership and responsibility' for the sculpture to named persons, members of the faculty and staff of the college. ¹ A number of persons listed had not authorized the use of their names and did not regard themselves as owners of the sculpture.

A faculty meeting was convened on April 24 to consider the decision not to permit a college sponsored exhibition of Spater's project. The meeting was interrupted by approximately 150 students. On April 25, the Graduate Studies Committee of the college, to which the matter of the Spater exhibition had been referred by the Academic Senate, filed its report concluding that a graduate student had no right to an exhibition of his master's degree project and that Dean Tyndall's decision that no exhibition of the Spater project should be sponsored by the college must stand unless officially challenged by the Art Department.

On April 26, the faculty of the Art Department convened a meeting and enacted a resolution requesting that the Spater exhibit be held. On May 1, a joint studentfaculty meeting was convened to discuss the subject. After the meeting, approximately 150 students embarked upon a protest march to President McIntosh's office where they milled about for 30 minutes refusing to leave while demanding a 'last chance' meeting with the president of the college.

On May 2, Dean Tyndall decided to permit the Spater exhibition, limiting persons entitled to view it to students and adults. On May 7, President McIntosh publicly announced that the showing would be held. On May 14, Chancellor Dumke and the chairman and vice chairman of the State College Board of Trustees appeared before the State Senate Rules Committee at its request. They were asked by Senator Hugh Burns, the committee chairman, 'to stop the exhibit.' The subject of the Spater exhibition was discussed at a meeting of the statewide Academic Senate of the state college system on May 23. Respondent Dumke, chancellor of the California State Colleges and four members of the Board of Trustees, reported that it would be difficult if not impossible to display the sculpture in a nonpolitical atmosphere. The statewide Academic Senate adopted a resolution recommending that Chancellor Dumke not interfere with the exhibit. On May 25, Chancellor Dumke determined that the action of the faculty and administration of the college reversing its prior position and allowing the exhibit was not the result of considered deliberation but had been precipitated by confrontation. He also considered the action erroneous and likely to lead to adverse consequences to the state college system. He therefore announced that the exhibit would not be held at the college.

On May 28, a violent demonstration of about 250 persons occurred at the administration building of the college. The demonstrators demanded that the Spater...