Corr v. Mattheis, Civ. A. No. 74-53.

• Decision Date: 20 January 1976
• Docket Number: Civ. A. No. 74-53.
• Citation: 407 F. Supp. 847
• Parties: Charles CORR and Donily Ranns v. Duane J. MATTHEIS, acting U. S. Commissioner of Education, et al.
• Court: U.S. District Court — District of Rhode Island

407 F. Supp. 847

Charles CORR and Donily Ranns v. Duane J. MATTHEIS, acting U. S. Commissioner of Education, et al.

Civ. A. No. 74-53.

United States District Court, D. Rhode Island.

January 20, 1976.

Seth K. Gifford, Providence, R.I., for plaintiffs.

Lincoln C. Almond, U. S. Atty. and Constance Messore, Asst. U. S. Atty., Providence, R.I., for defendant Mattheis.

Julius C. Michaelson, Atty. Gen., R.I., Gregory C. Benik, Sp. Asst. Atty. Gen., R.I., Providence, R.I., for defendant R.I. Bd. of Regents.

OPINION

Before McENTEE, Circuit Judge, PETTINE, Chief Judge, and BOWNES, District Judge.

PETTINE, Chief Judge.

Findings of Fact

During the early morning hours of May 17, 1972, a group of approximately 19 student protestors, including the plaintiffs, Charles Corr and Donily Ranns, and another two to three non-students, were removed from the ROTC offices on the campus of the University of Rhode Island by uniformed members of the URI campus police. Aside from their singing and chanting, the protestors' removal was effected without incident and marked the end of their eightday occupation of the URI-ROTC offices to protest the United States' presence in Viet Nam.

According to Paul Brubacher, URI Dean of Students, the student group had been permitted to occupy the ROTC offices without disturbance or reprisal on the condition that they did not prevent the ROTC personnel from carrying out their duties. During the first seven days of the occupation, this condition had been observed, the protestors constituting no more than an "annoying" presence. However, on the morning of the eighth day, May 17, protestors blocked the entrances to the ROTC offices, forcing ROTC personnel to step over them. Other students sat in office chairs, lounged across desk tops and on top of filing cabinets, thereby obstructing access to files and work areas. When asked by ROTC personnel to move, they simply refused. ROTC personnel thereupon left and reported the situation to the Dean of Students. Concluding that the condition under which the occupation initially was allowed had been broken, Dean Brubacher notified the students to leave the ROTC offices. When they refused to do so, he summoned the campus police and the protestors were removed. In his words, it was "at all times a peaceful demonstration."

By individual letter of May 22, 1972, Dean Brubacher notified each of the plaintiffs that the University had instituted disciplinary proceedings against them and that their cases would be heard by the URI Student Conduct Board (formally known as "Board on Student Conduct and Scholastic Integrity") on May 31, 1972. A copy of the charges against them was sent with the notice and is reproduced in full in the appendix to this Opinion. In essence, plaintiffs were claimed to have "individually and acting in concert as a group" engaged in "disruptive activity" which constituted a violation of specified criminal laws of Rhode Island pertaining to disorderly conduct, disturbance of public assemblies and trespass:

"Specifically on May 17, 1972, they denied ROTC faculty and staff members the lawful use of their offices and facilities; they willfully impeded ROTC faculty and staff members from the lawful performance of their duties by obstructing, disrupting, and interfering with the lawful missions, processes, procedures, and functions of that office and of the University."

Upon a finding of guilt by the Conduct Board, the Board was empowered to affix a penalty consonant with its constituting legislation. The full range of penalties within the Board's power was not presented to the Court, but included suspension and discipline short of suspension. It did not include termination of federal financial aid.

At the students' request, the hearing was postponed until September 18, 1972, at the beginning of the Fall Semester. After two further postponements, the hearing was held on October 3, 1972. Of the original group charged, plaintiff Ranns and two former students did not attend.¹ At the hearing, Dean Brubacher read the charges² (see appendix), which were substantiated by ROTC personnel. None of the students disputed the factual presentation. At the Board's request, Dean Brubacher recommended as an appropriate penalty that each of the students be placed upon a modified form of disciplinary probation for the Fall Semester. On the spectrum of student discipline, disciplinary probation is one step short of suspension. The Board concurred. Plaintiffs were formally notified of the Board's decision by individual letter of October 12, 1972.

Sometime in mid-November, 1972, the URI Director of Student Aid began to explore the possibility that plaintiffs, who were then receiving federal financial aid, were disqualified from receiving further federal assistance by § 305 of the Office of Education Appropriation Act, 1972, Pub.L. 92-48, 85 Stat. 103 (7/9/71), and § 407 of the Departments of Labor and Health, Education, and Welfare Appropriation Act, 1972, Pub.L. 92-80, 85 Stat. 285 (8/10/71), which in identical language provide:

"No part of the funds appropriated under this Act shall be used to provide a loan, guarantee of a loan, a grant, the salary of or any remuneration whatever to any individual applying for admission, attending, employed by, teaching at, or doing research at an institution of higher education who has engaged in conduct on or after August 1, 1969, which involves the use of (or the assistance to others in the use of) force or the threat of force or the seizure of property under the control of an institution of higher education, to require or prevent the availability of certain curriculum, or to prevent the faculty, administrative officials, or students in such institution from engaging in their duties or pursuing their studies at such institution."

An identical restriction has been incorporated in every yearly Labor/HEW appropriation act enacted since March 1970 and is hereinafter referred to as "§ 407." See, e. g., Departments of Labor and Health, Education, and Welfare Appropriation Acts: 1970, Pub.L. 91-204, Tit. 4 § 407, 84 Stat. 23 (3/5/70); 1974, Pub.L. 93-192, Tit. 4 § 407, 87 Stat. 746 (12/18/73); 1975, Pub.L. 93-517, Tit. 4 § 406, 88 Stat. 1634 (12/7/74); 1976, Pub.L. 94-206, Tit. 4 § 405, 90 Stat. 3 (1/28/76).

Pursuant to the agreement between URI and HEW governing the availability of federal financial assistance programs at URI, URI had the primary responsibility to ensure that the terms of § 407 were observed. Upon inquiry of the Office of Education of HEW, the URI Director of Student Aid was advised that:

"It appears that the University has complied with HEW's requirements for fair notice of proposed cessation of payments and has given the students plaintiffs an opportunity to be heard as to whether they engaged in conduct included under the provisions of section 407."

Based upon this advice, the report of an internal auditor concluding that § 407 applied, and the report and proceedings before the Conduct Board, and with the concurrence of the President of URI, the URI Director of Student Aid concluded that plaintiffs Corr and Ranns were no longer eligible for federal financial aid and informed them in January 1973 that:

"Your federal financial aid from this time forward must cease and your ineligibility will continue for as long as these Sections 305 and 407 continue to be included in the pertinent appropriations legislation."

Up to the moment of this notification, plaintiffs were unaware that the University was considering termination of their federal aid in response to their activities on May 17, 1972.³

For the remainder of the 1972-73 academic year, the University replaced plaintiffs' lost federal aid with nonfederal assistance. Plaintiffs received federal assistance in 1973-74 because the University believed Congress had not reenacted § 407, but URI once again terminated federal aid for 1974-75, plaintiffs' senior year. Plaintiff Corr was accepted to the masters program of the URI Department of Economics for 1975-76, but could not enroll because he could not secure financial assistance. Federal financial aid was not available due to § 407. He is presently unemployed. Plaintiff Ranns testified that she is likewise unable to pursue graduate studies due to her ineligibility for federal assistance. It is undisputed that, but for § 407, both plaintiffs presently meet all eligibility requirements for federal financial assistance and that their ineligibility will continue so long as the language of § 407 is incorporated in successive appropriation acts.⁴

Conclusions of Law

In an effort to remove this perpetual disability, plaintiffs commenced this action for declaratory and injunctive relief against various officials of URI and the State Board of Regents, who act under color of state law, 42 U.S.C. § 1983, R.I. G.L. § 16-31-5, and against the Acting United States Commissioner of Education, claiming that § 407 violates the Due Process Clause of the Fifth and Fourteenth Amendments and the free speech and assembly provisions of the First Amendment to the United States Constitution. Since the action challenged the constitutionality of a federal statute, a three-judge court was convened. 28 U.S.C. §§ 2282, 2284. In a separate memorandum and order, the author, sitting as a single judge, concluded that jurisdiction was conferred upon the Court by 28 U.S.C. §§ 1331, 1343, 2201, 2202.

The Court has no occasion to consider plaintiffs' challenge to § 407 as "overbroad" in violation of the First Amendment, or as "void for vagueness" in violation of the Due Process Clause,⁵ since plaintiffs must prevail on the preliminary constitutional issue that the termination of their federal financial aid pursuant to § 407 was not in accordance with the minimum procedures required by the Due Process Clause.

It does not require extensive discussion to conclude that the deprivation of financial aid mandated by § 407 must be preceded by...