Buttny v. Smiley

• Decision Date: 14 February 1968
• Citation: 281 F. Supp. 280
• Parties: John David BUTTNY et al., Plaintiffs, v. Joseph R. SMILEY, President of the University of Colorado, and the Regents of the University of Colorado, Defendants.
• Court: U.S. District Court — District of Colorado

281 F. Supp. 280

John David BUTTNY et al., Plaintiffs, v. Joseph R. SMILEY, President of the University of Colorado, and the Regents of the University of Colorado, Defendants.

Civ. A. C-666.

United States District Court D. Colorado.

February 14, 1968.

COPYRIGHT MATERIAL OMITTED

Walter C. Brauer, III, Denver, Colo., for plaintiffs.

John P. Holloway, Boulder, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

ARRAJ, Chief Judge.

Plaintiffs are students or former students at the University of Colorado who have been subjected to disciplinary action by the University. Their complaint and motion for a preliminary injunction allege violations of rights guaranteed to them by the First and Fourteenth Amendments to the United States Constitution. They have exhausted their available administrative remedies; this Court has jurisdiction under the Civil Rights Act, 42 U.S.C. § 1983; 28 U.S.C. § 1343. At the January 26, 1968 hearing in this Court, the parties stipulated that the hearing would be considered as a trial on the merits. The evidence before the Court is for the most part transcripts of prior administrative hearings and documents which were admitted on stipulation of counsel; additionally, some live testimony was offered and received.

This case arises out of disciplinary action taken by the University against plaintiffs after an October 25, 1967 protest demonstration at the University Placement Service on campus. Individually and collectively (as a group) the plaintiffs have admitted taking part in the protest activity which involved physically blocking and prohibiting entrance to the Placement Service by standing in the doorways to the offices. As a result of this activity students with scheduled interviews, students who desired to schedule interviews, personnel of the Placement Service, University officials and persons recruiting for various concerns were denied access to the offices of this department of the University. The plaintiffs were specifically protesting the recruiter from the Central Intelligence Agency of the United States.

Because of these activities plaintiffs were individually charged with the following:

1. Depriving students of the right of access to the Placement Bureau by physically blocking and prohibiting entrance to the Placement office.

2. Depriving University officials the right of access to the Placement Bureau by physically blocking and prohibiting entrance to Placement offices.

3. Prohibiting Placement office personnel from properly maintaining the University's Placement Service.

4. Depriving recruiters, who were scheduled under current University policies, their right to properly interview students for job placement.

5. Refusing to cease and desist from physically blocking entrance to said offices when requested to do so by University officials.

A full and open hearing was held before the University Discipline Committee. The hearing was conducted in conformity with the procedures set out in a document entitled "University of Colorado Discipline Procedures and Structure" approved by the Board of Regents of the University April 28, 1960. The decision of the University Discipline Committee (U.D.C.) was appealed to the Appellate Subcommittee of the Administrative Council and the decision of that body was further appealed to the Board of Regents. As a result of the hearing and appeals, nine of the plaintiffs have been suspended from the University with the right to apply for re-admission after the 1968 spring semester, nine were suspended and immediately readmitted under probationary status for the remainder of their enrollment, and four were placed on indefinite probation. At each level, the decisions were unanimous.

In their complaint and motion plaintiffs assert that the defendants violated their constitutional right to due process of law in the following particulars:

1. The defendants accepted jurisdiction of the matter based on rules that did not exist.

2. The rules which the plaintiffs allegedly violated are vague and uncertain in that they (a) fail to provide sufficient notice to the plaintiffs of the proscribed conduct, and (b) they fail to provide sufficient standards to guide the University disciplinary bodies in determining if a violation has occurred.

3. The rules are over-broad and sweeping so that they prohibit conduct protected by the First Amendment to the United States Constitution by their chilling effect upon the exercise of the guaranteed right of free speech.

4. The defendants agreed to hear the case of the plaintiffs together, then to act on each case individually in determining culpability and punishment, but they violated their own rule by acting on the plaintiffs as a group.

Plaintiffs further allege that their constitutional right to equal protection of the law was encroached upon by defendants in the following manner: (1) The U.D.C. imposed upon the plaintiffs differential punishment, discriminatory because there was no evidence to substantiate any differential treatment, and (2) the punishment is arbitrary and unrelated to the evidence.

Additionally, plaintiff Brian McQuerrey complains that he was further denied due process and equal protection within the meaning of the Fourteenth Amendment because the punishment imposed upon him (suspension) was founded on evidence of prior disciplinary action which prior action was constitutionally infirm. In the fall of 1962 McQuerrey, then a freshman, pleaded guilty to a charge of "interference" in a Boulder court. At that time he was not advised of his federal constitutional rights to remain silent and to have the advice of counsel. As a result of this conviction he was called before an Assistant Dean of Men and was given a "University warning" which is a form of punishment; if there is an accumulation of these warnings more severe action is taken, possibly probation or suspension. In effect, McQuerrey is making a collateral attack on the original conviction; if the conviction is void, so also is the disciplinary action taken by the University. In October 1963 McQuerrey appeared before the University Discipline Committee on a charge of gambling in the residence halls. At that hearing he was not advised of his rights to counsel and to appeal. He was then placed on probation. The two prior proceedings against Mr. McQuerrey were considered by the U.D.C. in setting his punishment in the present action.

We are asked to permanently enjoin defendants from interfering with the pursuit by plaintiffs of their studies and to re-admit the suspended plaintiffs. They also ask that defendants be ordered to strike from their files any reference to the disciplinary action and its results.

Plaintiffs' claim that defendants based jurisdiction on rules that did not exist belies the record. They were advised, in writing, that the University was relying on the following rules:

Students have equivalent responsibility with the faculty for study and learning. They should be judged on the merits of their performance without reference to their political, social, or religious views. The University of Colorado expects its students to obey national, state and local laws; to respect the rights and privileges of other people; and to conduct themselves in such manner that reflects credit upon the University. (From University of Colorado Discipline Procedures and Structure, approved by the Board of Regents April 28, 1960.)

HAZING. Hazing in all forms is prohibited in this University. Students who thus interfere with the personal liberty of a fellow student are rendered liable to immediate discipline. This rule is extended to cover class conflicts, injury to property on the campus or elsewhere and interference in any manner with the public or private rights of citizens. (From Article XIV, Section 2, of the Laws of the Regents, compiled January 1, 1964.)

Both of these rules were promulgated by the Board of Regents, a body created by the State Constitution to govern the University.

Article IX, Section 14, of the Colorado Constitution provides: "The board of regents shall have the general supervision of the university * * *." In Sigma Chi Fraternity v. Regents of University of Colorado, 258 F.Supp. 515 (D.Colo. 1966), the court said, "* * * the University and the Regents as its governing board, can validly impose a wide variety of regulations." Goldberg v. Regents of University of California, Cal.App., 57 Cal.Rptr. 463, holds in substance that reasonable regulation to prevent interference with the conduct of the University's administrative responsibilities is clearly within the rule-making jurisdiction of the University.

These rules are not so vague or uncertain as to require us to declare them invalid. Although they are not in a form of specific prohibitions, such as "Thou shalt not physically prevent other students from using University facilities," nevertheless they do set standards for acceptable conduct which are readily determinable and should be easily understood. As noted by the Administrative Council in its decision, `The University is not required to provide a negative type of behavioral code typical of criminal laws'; we fully agree with that finding.

In Goldberg v. Regents of the University of California, 57 Cal.Rptr. 463, 472 (Cal.Ct.App.1967), the court says:

Broadly stated, the function of the University is to impart learning and to advance the boundaries of knowledge. This carries with it the administrative responsibility to control and regulate that conduct and behavior of the students which tends to impede, obstruct or threaten the achievements of its educational goals. Thus, the University has the power to formulate and enforce rules of student conduct that are appropriate and necessary to the maintenance of order and propriety, considering the accepted norms of social behavior in the community where such rules are reasonably necessary to further the University's educational goals.

The United States Supreme Court has...