Dickson v. Sitterson

• Decision Date: 19 February 1968
• Docket Number: No. C-59-G-66.,C-59-G-66.
• Citation: 280 F. Supp. 486
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Paul DICKSON, III, George E. Nicholson, III, Robert S. Powell, Jr., James A. Medford, Eunice H. Milton, John E. Greenbacker, Jr., Eric E. Van Loon, Ernest S. McCrary, Gary E. Waller, Stuart E. Matthews, John McSween, Henry N. Patterson, Jr., and Frank Wilkinson and Herbert Aptheker, Plaintiffs, v. J. Carlyle SITTERSON, Acting Chancellor of the University of North Carolina at Chapel Hill; William C. Friday, President of the University of North Carolina; the Board of Trustees of the University of North Carolina, a Body Politic and Corporate Known and Distinguished by the Name of the "University of North Carolina," Defendants.

280 F. Supp. 486

Paul DICKSON, III, George E. Nicholson, III, Robert S. Powell, Jr., James A. Medford, Eunice H. Milton, John E. Greenbacker, Jr., Eric E. Van Loon, Ernest S. McCrary, Gary E. Waller, Stuart E. Matthews, John McSween, Henry N. Patterson, Jr., and Frank Wilkinson and Herbert Aptheker, Plaintiffs, v. J. Carlyle SITTERSON, Acting Chancellor of the University of North Carolina at Chapel Hill; William C. Friday, President of the University of North Carolina; the Board of Trustees of the University of North Carolina, a Body Politic and Corporate Known and Distinguished by the Name of the "University of North Carolina," Defendants.

No. C-59-G-66.

United States District Court M. D. North Carolina, Greensboro Division.

February 19, 1968.

McNeill Smith, Greensboro, N. C., for plaintiffs.

T. Wade Bruton, Atty. Gen., of North Carolina, Ralph Moody, Deputy Atty. Gen., of North Carolina, Andrew A. Vanore, Jr., Staff Attorney, Raleigh, N. C., and William T. Joyner, William T. Joyner, Jr., and James M. Kimzey, Raleigh, N. C., for defendants.

Daniel H. Pollitt, Chapel Hill, N. C., R. Mayne Albright, Raleigh, N. C., Lisbon C. Berry, Jr., Wilmington, N. C., Hugh G. Casey, Jr., Charlotte, N. C., Renn Drum, Jr., Winston-Salem, N. C., Charles F. Lambeth, Jr., Thomasville, N. C., James Mattocks, High Point, N. C., and William L. Thorp, Jr., Rocky Mount, N. C., for North Carolina Civil Liberties Union, amicus curiae.

William W. Van Alstyne and J. Francis Paschal, Durham, N. C., for The American Association of University Professors and The North Carolina Conference, amicus curiae.

Before HAYNSWORTH, Circuit Judge, and STANLEY, and BUTLER, District Judges.

EDWIN M. STANLEY, District Judge.

The plaintiff seeks to declare unconstitutional and enjoin the enforcement of § 116-199 and § 116-200, General Statutes of North Carolina, statutes regulating the appearance of visiting speakers at State-supported colleges and universities. Declaratory relief is sought under 28 U.S.C. § 2201 and injunctive relief is sought under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343 and 2281. Since the proceeding involves the constitutionality of State statutes, this three-judge Court was convened pursuant to 28 U.S.C. §§ 2281 and 2284.

The basic facts are not in dispute, and are to be found in the complaint and answer, with exhibits attached, stipulated facts and documents, and depositions.

From the pleadings, and stipulated facts and other documents, the following material facts are found:

FACTS

1. At all times pertinent, the plaintiffs, except Wilkinson and Aptheker, were students duly enrolled and in good standing at the University of North Carolina at Chapel Hill, North Carolina. The student body consisted of approximately twelve thousand students and the plaintiff, Dickson, was the duly elected president of the student body.

2. At all times pertinent, the plaintiff students, except McSween and Patterson, were members and officers of unincorporated associations of students officially recognized by the University. The names of the plaintiff students, the respective organizations of which each was a member and officer, and the office held, were as follows:

(a) Paul Dickson, III, President, Student Government of University of North Carolina;

(b) George E. Nicholson, III, Chairman, Carolina Forum;

(c) Robert S. Powell, Executive Director, Carolina Forum;

(d) James A. Medford, President, Young Men's Christian Association;

(e) John E. Greenbacker, Jr., President, Dialectic and Philanthropic Literary Society;

(f) Eric E. Van Loon, Chairman, Carolina Political Union;

(g) Ernest S. McCrary, Editor, The Daily Tar Heel, student newspaper;

(h) Gary E. Waller, Member of Steering Committee, Students for a Democratic Society;

(i) Stuart E. Matthews, Member of Steering Committee, Students for a Democratic Society.

3. Each of the student organizations designated in the preceding paragraph exists at the University of North Carolina, and each is composed of a number of students.

4. The plaintiff, Frank Wilkinson, is a citizen and resident of the State of California, and is Executive Director of the National Committee to Abolish the House Un-American Activities Committee.

5. The plaintiff, Herbert Aptheker, is a citizen and resident of the State of New York, and is Director of the American Institute for Marxist Studies.

6. When this action was commenced, the defendant, J. Carlyle Sitterson, was the Acting Chancellor of the University of North Carolina, Chapel Hill, and the defendant, William C. Friday, was the President of the University of North Carolina. Since the commencement of this action, the defendant Sitterson has been elected Chancellor. These individual defendants are officers and agents of the State of North Carolina, and in all matters referred to in the pleadings they acted in their capacity as officers and agents of the State of North Carolina, and are sued in their official capacities.

7. The defendant, Board of Trustees of the University of North Carolina, is a corporate body and an agency of the State of North Carolina. At all times pertinent, said Board of Trustees was authorized to make rules and regulations for the management of the University of North Carolina, and the defendants Sitterson and Friday were authorized to implement and carry out the directives of said Board of Trustees.

8. The 1963 General Assembly of North Carolina enacted Chapter 1207 of the Session Laws (codified as G.S. § 116-199 and § 116-200), regulating visiting speakers at State-supported colleges and universities, as follows:

"§ 116-199. No college or university, which receives any State funds in support thereof, shall permit any person to use the facilities of such college or university for speaking purposes, who:

(A) Is a known member of the Communist Party;

(B) Is known to advocate the overthrow of the Constitution of the United States or the State of North Carolina;

(C) Has pleaded the Fifth Amendment of the Constitution of the United States in refusing to answer any question, with respect to Communist or subversive connections, or activities, before any duly constituted legislative committee, any judicial tribunal, or any executive or administrative board of the United States or any state.

§ 116-200. This Act shall be enforced by the Board of Trustees, or other governing authority, of such college or university, or by such administrative personnel as may be appointed therefor by the Board of Trustees or other governing authority of such college or university."

9. Thereafter, on July 8, 1963, the Executive Committee of the Board of Trustees of the University of North Carolina adopted the following regulation and policy statement:

"The facilities of the Consolidated University of North Carolina shall be denied to any visiting speaker who is known to be a member of any Communist Party; or is known to advocate the overthrow of the Constitution of the United States or the State of North Carolina; or is known to have pleaded the Fifth Amendment of the Constitution of the United States in refusing to answer any question, with respect to Communist or subversive connections, or activities, before any duly constituted legislative committee, any judicial tribunal, or any executive or administrative board of the United States or any state.

This policy shall be enforced by student representatives of student organizations authorized to invite visiting speakers and by any member of the faculty or administrative official who invites a visiting speaker to the campus."

10. After the enactment of Chapter 1207 of the Session Laws of 1963, commonly referred to as the "Speaker Ban" law, the statute became a matter of widespread public concern. As a consequence, the 1965 General Assembly, by resolution adopted on June 16, 1965, created a Commission to study the statutes and report the results of its study to the Governor of North Carolina. The Commission members consisted of five lawyers, two industrial manufacturers, one newspaper editor, and one Baptist minister, and their residence was distributed over the several geographical areas of the State.

11. The aforesaid Study Commission filed its report on November 5, 1965, which report included the following recommendations:

"1. Subject to Recommendation No. 2, we recommend that Chapter 1207 of the 1963 Session Laws be amended so as to vest the trustees of the institutions affected by it not only with the authority but also with the responsibility of adopting and publishing rules and precautionary measures relating to visiting speakers covered by said Act on the campuses of said institutions. We submit as a part of this report a proposed legislative bill to accomplish this purpose.

2. We recommend that each of the Boards of Trustees of said institutions adopt the Speaker Policy hereto attached and made a part of this Report.

3. In order that this important matter might be settled forthwith, we recommend that you, The Governor of North Carolina, request the boards of trustees of the affected institutions to assemble as soon as practicable for purpose of giving consideration to the aforementioned Speaker Policy, and at such time as it has been adopted by the said boards of all of said institutions, that you cause to be called an extraordinary Session of the General Assembly for purpose of considering amendments to Chapter 1207 of the 1963 Session Laws as hereinbefore set forth."

12. The Speaker Policy, attached to and made a part of the report of the Study Commission, provided as follows:

"The Trustees recognize that this Institution, and every part thereof, is owned by the people of North Carolina; that it is operated by duly selected representatives and personnel for the benefit of the people of our state.

The Trustees of this Institution are unalterably opposed to Communism and any other ideology or form of government which has as its goal the destruction of our basic democratic institutions.

We recognize that

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