Brooks v. Auburn University

• Decision Date: 05 February 1969
• Docket Number: Civ. A. No. 791-E.
• Citation: 296 F. Supp. 188
• Parties: Larry BROOKS, Jan C. Pitsenberger, Joseph E. Sanders, Craig Lenhard, Dr. Hermione Shantz, Dr. John C. Frandsen, Dr. Wesley Newton, Charles D. Taylor, Plaintiffs, v. AUBURN UNIVERSITY, Harry M. Philpott, individually and as President of Auburn University, Frank P. Samford, Sr., Chairman, Board of Trustees, Auburn University, Defendants.
• Court: U.S. District Court — Middle District of Alabama

296 F. Supp. 188

Larry BROOKS, Jan C. Pitsenberger, Joseph E. Sanders, Craig Lenhard, Dr. Hermione Shantz, Dr. John C. Frandsen, Dr. Wesley Newton, Charles D. Taylor, Plaintiffs, v. AUBURN UNIVERSITY, Harry M. Philpott, individually and as President of Auburn University, Frank P. Samford, Sr., Chairman, Board of Trustees, Auburn University, Defendants.

Civ. A. No. 791-E.

United States District Court M. D. Alabama, E. D.

February 5, 1969.

COPYRIGHT MATERIAL OMITTED

Morris S. Dees, Jr., Montgomery, Ala., for plaintiffs.

James J. Carter (Hill, Hill, Stovall & Carter), Montgomery, Ala., Thomas D. Samford, III, and William J. Samford (Samford & Samford), Opelika, Ala., for defendants.

MEMORANDUM OPINION

JOHNSON, Chief Judge.

In this class action plaintiffs seek to have this Court issue a preliminary injunction restraining defendants from interfering with a scheduled speaking appearance at Auburn University of the Reverend William Sloan Coffin. Plaintiffs also seek a declaratory judgment of the unconstitutionality of certain regulations, rules, and guidelines concerning inviting speakers to the Auburn University campus. The jurisdiction of this Court is invoked under 28 U.S.C. §§ 1331, 1343 and 42 U.S.C. §§ 1981, 1983. This cause is now submitted on plaintiffs' motion for a preliminary injunction and the hearing held thereon in this Court on February 3, 1969.

Plaintiffs in this action are students and faculty members of Auburn University, and the Human Rights Forum, an officially chartered Auburn University student organization. Defendants are Auburn University, a state-operated institution of higher learning located at Auburn, Alabama, Dr. Harry M. Philpott, individually and as President of Auburn University, and Frank P. Samford, Sr., Chairman of the Board of Trustees of Auburn University.

The events immediately triggering this action commenced November 13, 1968, when the Chairman of the Human Rights Forum, David Jeffers, made a written request to the Public Affairs Seminar Board requesting $650 to pay the Reverend William Sloan Coffin to speak at the University on February 7, 1969. The Public Affairs Seminar Board was chartered by Auburn University for the purpose of "allocating funds to departments or groups for the presentation of seminars, conferences, individual lecturers, or other activities which encouraged the worthwhile discussion of public affairs." The Public Affairs Seminar Board met on November 20 and approved unanimously the Human Rights Forum's request. On November 21 the Public Affairs Seminar Board's chairman informed the Human Rights Forum in writing that its request had been approved.

On November 22 President Philpott told the Chairman of the Public Affairs Seminar Board that the Reverend Mr. Coffin would not be allowed to come to the Auburn University campus because he might advocate breaking the law and because he was a convicted felon. On November 25 President Philpott invited the Human Rights Forum Chairman, David Jeffers, to his office and at that time told Jeffers the invitation to the Reverend Mr. Coffin would have to be withdrawn. President Philpott then laid down what the plaintiffs have termed "the oral Philpott rules" relative to inviting outside speakers. These rules consist of three provisions:

Student organizations could not invite (a) a speaker that could reasonably be expected to advocate breaking a law, (b) a speaker who had been previously convicted of a felony, and (c) a speaker of the type as the Reverend Mr. Coffin because it would be tantamount to Auburn University's sanctioning what the Reverend Mr. Coffin advocated.

On December 4 the Public Affairs Seminar Board met with President Philpott at his request. At this time President Philpott stated he was using his power as President to veto the expenditure of the money and was banning the appearance of the Reverend Mr. Coffin at Auburn University, and he again stated the "oral Philpott rules" upon which he based this action. At this meeting President Philpott handed out "Guidelines for Issuing Invitations to Outside Speakers." He stated these were for study and discussion only and were not being handed out as "rules." These guidelines are attached as Exhibit "A." The most relevant guideline for present purposes is guideline 2 which provides:

"Invitations to speak at Auburn University should not be extended to persons who by prior expression might reasonably be expected to advocate:

a. Disregard for the laws of our society or the breaking of these laws.

b. The violent overthrow of our government."

Several other background facts are worthy of note. The Reverend William Sloan Coffin is the active Chaplain of Yale University and has been an outspoken leader of the opposition to American involvement in the Vietnam war. In connection with these activities, the Reverend Mr. Coffin has been arrested and has been convicted by a United States District Court in Massachusetts for conspiracy to counsel and aid and abet young men in resisting the draft. That conviction is currently on appeal. The Reverend Mr. Coffin has frequently lectured on college campuses in the last twelve months.

Prior to the invitation to the Reverend Mr. Coffin, Auburn University had no written or orally announced policy or guidelines for inviting speakers to the campus. In the last several years speakers have been invited, some at University expense, to speak to student and faculty groups on campus.¹ Among others, these speakers included Whitney Young, George C. Wallace, Admiral John Crommelin, and Lurleen B. Wallace.

President Philpott has made it clear that the fact that the funds of the Public Affairs Seminar Board were to be used to pay the Reverend Mr. Coffin was a significant consideration but was not critical to his decision. It also seems clear that the ban is not based upon the probability of violence, riots, or other disorders accompanying the proposed speech. It is also clear from Dr. Philpott's testimony that the scheduled appearance of the Reverend Mr. Coffin would not unduly interfere with the discipline or the orderly operation of Auburn University. In short, the basic reasons Dr. Philpott advances in support of his decision to ban the Reverend Mr. Coffin's appearance and payment therefor at Auburn University are based upon a "philosophical concept" and his decision in the matter constitutes a "philosophical decision."

Turning to the relevant legal background, it is not considered necessary or even appropriate to a disposition of the issues in this case to deal with or discuss the legal rights of the Reverend Mr. Coffin to speak at Auburn University without an invitation. Rather, this case involves the rights of students and faculty to hear a speaker invited to the campus by them according to the University's authorized procedures. The Supreme Court has recognized that hearers and readers have rights under the First Amendment. Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965). What is implicit in the majority opinion is made explicit in the concurring opinion of Justices Brennan and Goldberg:

"The addressees assert First Amendment claims in their own right: they contend that the Government is powerless to interfere with the delivery of the material because the First Amendment `necessarily protects the right to receive it.' * * *

"It is true that the First Amendment contains no specific guarantee of access to publications. However, the protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful. * * * I think the right to receive publications is such a fundamental right. The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren market place of ideas that had only sellers and no buyers." Lamont v. Postmaster General, supra, at 308, 85 S.Ct. at 1497. See also Snyder v. Board of Trustees of University of Illinois, 286 F.Supp. 927 (N.D.Ill. 1968).

There can no longer be much doubt that constitutional freedoms must be respected in the relationships between students and faculty and their university. As this Court said in Dickey v. Alabama State Board of Education, 273 F.Supp. 613, 618 (M.D.Ala.1967):

"A state cannot force a college student to forfeit his constitutionally protected right of freedom of expression as a condition to his attending a state-supported institution."

In Dickey, this Court relied heavily upon the leading case of West Virginia State Board of Education v. Barnett, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674 in which the Supreme Court stated:

"The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures—Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes."

Auburn University is, of course, a state agency, and in terms of freedom of expression what is true of elementary and secondary education must be true a fortiori of colleges and universities. Indeed, it could be argued that an open forum is even more important on a campus than among the public generally. Chief Justice Warren seemed to be suggesting just that in Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1211, 1 L.Ed.2d 1311 (1957), when he stated:

"The essentiality of freedom in the community of American universities is almost self-evident. * * * Teachers and students must always remain free to

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