Bayless v. Martine

• Decision Date: 24 June 1970
• Docket Number: No. 28865.,28865.
• Parties: David BAYLESS et al., Plaintiffs-Appellants, v. Floyd MARTINE, Dean of Students, Southwest Texas State University, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

430 F.2d 873 (1970)

David BAYLESS et al., Plaintiffs-Appellants, v. Floyd MARTINE, Dean of Students, Southwest Texas State University, et al., Defendants-Appellees.

No. 28865.

United States Court of Appeals, Fifth Circuit.

June 24, 1970.

Mark Z. Levbarg, Brooks Holman, Austin, Tex., for appellants.

Crawford C. Martin, Atty. Gen. of Texas, James C. McCoy, W. O. Shultz, Pat Bailey, Asst. Attys. Gen., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., J. C. Davis, Asst. Atty. Gen., for appellees.

Clark, Thomas, Harris, Denius & Winters, Edward Clark, Austin, Tex., for appellee, Board of Regents, State Senior Colleges.

Before THORNBERRY, DYER and CLARK, Circuit Judges.

CLARK, Circuit Judge:

As a result of participation in a Viet Nam Moratorium demonstration in November 1969, ten students of Southwest Texas State University (SWT) were suspended. The students initiated an action in the district court seeking temporary, preliminary and permanent injunctive relief prohibiting their suspension and other disciplinary measures; a declaratory judgment that the University regulation under which they were suspended was overbroad and a prior restraint on freedom of speech and assembly; and monetary damages. The district court declined to grant the temporary restraining order or a preliminary injunction. This interlocutory appeal ensued.¹ The district court's denial of the preliminary injunction was stayed and the college was enjoined from suspending the appellants by a panel of this court, pending determination of the merits of this appeal. Bayless v. Martine, 430 F.2d 872 (5th Cir. 1969) No. 28865, December 12, 1969. After full briefs and argument we find that the district judge did not abuse his discretion in refusing to grant the preliminary injunction; therefore we vacate the actions previously taken by this court and remand the cause for further proceedings.

The Viet Nam Moratorium, a nationwide movement to provoke and promote demonstrations against the war in Viet Nam, held its first public protest on October 15, 1969. The SWT segment of this October event was to consist of an hour long program of short speeches. Because of the nature of the program it was felt that an auditorium would best meet the needs of the group. The college officials authorized the program to take place in the Fine Arts Auditorium from 11:00 A.M. to 12:00 Noon. Without authorization and contrary to regulations, demonstrations were held from 10:00 A.M. to 11:00 A.M. and from 12:00 Noon to 1:15 P.M. in the Huntington Statue area which is located between two classroom buildings. Both faculty and students subsequently complained that the demonstrations at these hours in the statue area disturbed and disrupted regularly scheduled classes. The Moratorium group's over-all national plan called for successive monthly demonstrations of increasing length until the war in Viet Nam was settled. The November 13, 1969 event for which the SWT appellant-students before us today were suspended was the second of these projected moratoria.

The Students' Rights chapter of the SWT handbook, known as "Hill Hints", contained a regulation governing the holding of meetings on campus which had been adopted by The Student Rights Committee of the Student Senate. The text of the regulation follows:

"STUDENT EXPRESSION AREA

Students and University personnel may use the Student Expression Area located on the grass terraces in front of Old Main between the hours of 12:00 noon to 1:00 p. m., and from 5:00 to 7:00 p. m. Reservations for the Student Expression Area are made through the Dean of Students Office and must be made at least 48 hours in advance.

Rules to be observed by users of the area include:

1. No interference with the free flow of traffic.

2. No interruption of the orderly conduct of University affairs.

3. No obscene materials.

4. Person making the reservation is responsible for seeing that the area is left clean and in a good state of repair.

When a registered student organization plans to invite a non-University person to address a meeting, his name must be submitted to the Dean of Students Office at least 48 hours before the event."

The area specified in the regulation is centrally located on the University campus and is surrounded by classroom buildings. This handbook also contained a detailed chapter entitled, "Student Discipline and Conduct Code."² The appellant-students refused the administrative disposition of their cases and received the full hearing which this Code assured.

The local group sponsoring the SWT moratoria had, on a number of occasions between November 4 and November 13, discussed plans for their November activities with the college administration. The Moratorium group insisted that they again wanted to hold a demonstration at the Huntington Statue area of the campus. The group further adhered to their requirement that the demonstration must take place from 10:00 A.M. until 2:00 P.M. Thus both the place and the time demanded by the Moratorium group were outside of the Hill Hints regulation quoted above.

University personnel endeavored to secure an auditorium so that the demonstration could be held inside but no auditorium was available. The college officials also offered to permit the demonstration to be held at the statue area if it was limited to the hour between 12:00 Noon and 1:00 P.M. Classes were scheduled to be and were in progress on this particular day in the classroom buildings which adjoined the statue area. No attempt was made to show that the student expression area defined in the regulations was not available to the group during the hours provided for therein. With explicit knowledge that they were acting contrary to the University's general regulation and the particular directions of the University officials who worked with them, the second Moratorium demonstration began at the statue area at approximately 9:45 A.M. on November 13. An estimated fifty demonstrators congregated in the area at the outset, but after Appellee Martine, Dean of Students of SWT, arrived and told the demonstrators to leave only ten refused and remained. They are the appellants here. There is no conflict in the evidence nor is any issue raised concerning the demonstrators' conduct. They sat upon the grass. They intended to be and were silent until the time of their suspensions. They had caused no injury to property themselves. They had attracted a crowd of on-lookers.

Despite the initial orderliness of the November demonstration, the officials of SWT testified that based upon their October experience they did not believe that they could preserve order if the demonstration were allowed to continue during the four hours planned in the middle of the academic day at this place on the campus. Some class disruptions had in fact already begun to occur at the time Dean Martine acted. The demonstrating group had been warned in advance that violation of regulations would result in disciplinary action. After the demonstration actually started Dean Martine specifically warned the students that if they continued to violate the University's regulations they would be suspended until the Fall 1970 term. He then gave them a reasonable opportunity to desist. Only those who would not leave the prohibited demonstration site were suspended. The suspensions began on November 13, 1969 and were interdicted by this Court's interim injunctive order.

Plaintiffs have not attacked the procedures by which they were disciplined under the rules laid down in Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961). The sole object of their attack before the court below and on this appeal is the validity of Hill Hints regulation quoted above.

The broad standard applicable to appellate review of a district court's denial of preliminary injunctive relief is measured by a strict test which disregards whether this court would have exercised its discretion to deny the injunction and looks only to determine whether the district judge clearly abused his discretion in acting as he did. Allen v. Mississippi Commission of Law Enforcement, 424 F.2d 285 (5th Cir. 1970); Ferrell v. Dallas Independent School District, 392 F.2d 697 (5th Cir. 1968); Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (5th Cir. 1966); Detroit Football Company v. Robinson, 283 F.2d 657 (5th Cir. 1960); 7 Moore's Federal Practice ¶ 65.04 1 & 2 (2d ed. 1966). In testing this discretion we must take into account the status of each of the parties, the respective effects which the denial or grant of the injunctive relief requested would have on these parties and upon any broader interests which might be affected — particularly public interests, the proof offered in support of and against the grant of such relief and the correct legal standards to be applied. All of these factors play a part in what is basically a balancing of the conveniences of the parties and the possible injuries to them according as they may be affected by the granting or withholding of the injunction. Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944). Some circuits have aptly expressed the equation as "a flexible interplay between the likelihood of irreparable harm to the movant and the court's belief that there is a `reasonable certainty' (or probability) that the movant will succeed on the merits at a final hearing." Packard Instrument Company v. ANS, Inc., 416 F.2d 943, 945 (2nd Cir. 1969); Checker Motors Corporation v. Chrysler Corporation, 405 F.2d 319 (2nd Cir. 1969); Crowther v. Seaborg, 415 F.2d 437 (10th Cir. 1969).

The order denying the preliminary injunction in the case sub judice stated in part: "There is a gravely serious question that the plaintiffs could prevail on the merits as reflected by the record in this hearing." Thus the district judge was, as we are, not convinced after the preliminary hearing that the plaintiffs had made a prima facie...