Fox v. Board of Trustees of State University of New York, 117

• Citation: 841 F.2d 1207
• Decision Date: 11 March 1988
• Docket Number: No. 117,D,117
• Parties: , 45 Ed. Law Rep. 990 Todd FOX, Edward R. Detweiler, Stephanie Vaiano, James B. Cullen, Christine Marie Odell, Steven Gawley, Daniel Altman, Philip Jay Botwinik, Jeffrey S. Zellan, Jaclyn Bernstein, and American Future Systems, Inc., Plaintiffs, Todd Fox, Edward R. Detweiler, Stephanie Vaiano, James B. Cullen, Christine Marie Odell, Steven Gawley, Daniel Altman, Philip Jay Botwinik, Jeffrey S. Zellan, and Jaclyn Bernstein, Appellants, v. The BOARD OF TRUSTEES OF the STATE UNIVERSITY OF NEW YORK and Clifton R. Wharton, Jr., Individually and as Chancellor of the Board of Trustees and the State University of New York College at Cortland, and James M. Clark, Individually and as President of the College at Cortland, and the State University of New York at Binghamton, and Clifford D. Clark, Individually and as President of the State University of New York at Binghamton, and the State University of New York at Albany, and Vincent O'Leary, Individually and as President of the State University of New York at Albany, and the State University of New York College of Arts and Sciences at Potsdam, and Humphrey Tomkin, Individually and as President of the College of Arts and Sciences at Potsdam, Appellees. ocket 87-7296.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1207

841 F.2d 1207 56 USLW 2550, 45 Ed. Law Rep. 990 Todd FOX, Edward R. Detweiler, Stephanie Vaiano, James B.
Cullen, Christine Marie Odell, Steven Gawley, Daniel Altman,
Philip Jay Botwinik, Jeffrey S. Zellan, Jaclyn Bernstein,
and American Future Systems, Inc., Plaintiffs,
Todd Fox, Edward R. Detweiler, Stephanie Vaiano, James B.
Cullen, Christine Marie Odell, Steven Gawley,
Daniel Altman, Philip Jay Botwinik,
Jeffrey S. Zellan, and Jaclyn
Bernstein, Appellants,
v.
The BOARD OF TRUSTEES OF the STATE UNIVERSITY OF NEW YORK
and Clifton R. Wharton, Jr., Individually and as Chancellor
of the Board of Trustees and the State University of New
York College at Cortland, and James M. Clark, Individually
and as President of the College at Cortland, and the State
University of New York at Binghamton, and Clifford D. Clark,
Individually and as President of the State University of New
York at Binghamton, and the State University of New York at
Albany, and Vincent O'Leary, Individually and as President
of the State University of New York at Albany, and the State
University of New York College of Arts and Sciences at
Potsdam, and Humphrey Tomkin, Individually and as President
of the College of Arts and Sciences at Potsdam, Appellees. No. 117, Docket 87-7296. United States Court of Appeals,
Second Circuit. Argued Oct. 23, 1987.
Decided March 11, 1988.

Page 1208

Henry T. Reath (Wayne A. Mack, Jr., Duane, Morris & Heckscher, Philadelphia, Pa.; Ronald H. Sinzheimer, Albany, N.Y., of counsel), for appellants.

Daniel Smirlock, Asst. Atty. Gen. (Robert Abrams, Atty. Gen. of the State of N.Y., Peter Schiff, Deputy Sol. Gen.; Nancy A. Spiegel, Asst. Atty. Gen., Albany, N.Y., of counsel), for appellees.

Lanny E. Walter, Walter, Thayer & Long, Albany, N.Y., for amicus curiae Student Ass'n of the State University of New York, Inc.

Lewis B. Oliver, Jr., Oliver & Oliver, Albany, N.Y., for amici curiae Student Ass'n of the University at Albany, University at Albany's Tenant Ass'n, Cortland College Student Ass'n.

Michael Griffinger, Crummy, Deldeo, Dolan, Griffinger & Vecchione, Newark, N.J., for amicus curiae American Future Systems, Inc.

Before OAKES, CARDAMONE and MAHONEY, Circuit Judges.

OAKES, Circuit Judge:

This case commenced when a corporation selling housewares to college students challenged a university regulation barring its access to student dormitory rooms. Initially only one student who wished to host a housewares demonstration joined the suit. He argued that the university regulation impaired his constitutional right to receive information in his dormitory room. The United States District Court for the Northern District of New York, Neal P. McCurn, Judge, granted a preliminary injunction utilizing commercial free speech analysis. American Future Sys., Inc. v. State Univ., 565 F.Supp. 754 (N.D.N.Y.1983). Additional students then joined the suit. After a non-jury trial, the district court turned away from the students' First Amendment rights and focused on the houseware company's efforts to enter the university. Fox v. Board of Trustees, 649 F.Supp. 1393, 1398-1402 (N.D.N.Y.1986). On appeal, the focus of the case shifted. The housewares company dropped out as a party and is now merely an amicus. Numerous students and student organizations joined as amici curiae. The university, however, is still fighting the case as it began, and we note that the lawyers representing the students originally represented the housewares company. Yet, the case no longer involves an effort by outsiders to gain access to university property; rather it concerns only the constitutional rights of students in their dormitories. Accordingly, we reverse and remand for further proceedings in light of this opinion.

BACKGROUND

Appellants are students at various campuses of the State University of New York (SUNY), in particular, at Cortland, Albany, and Binghamton. The appellees are the Board of Trustees of SUNY, the chancellor of SUNY, SUNY colleges at Cortland, Albany, Binghamton, and Potsdam, and their respective presidents.

SUNY requires all freshmen, sophomores, and new transfer students to live in college-operated housing. Only students over twenty-one years of age, married students, students with prior military service, and students living at home with parents are exempt. All students living in SUNY

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housing sign a "license" covering room and board. They agree to pay a specific amount for the academic year (subject to change by the SUNY trustees) in return for room and board "in the residence halls operated by the College subject to the rules and regulations of the College with respect to its students." The rules and regulations are described in the license and in university and college publications. One such publication, known as RALPH, is furnished by the residence life staff to all Cortland students. It sets forth the students' rights and responsibilities. RALPH is replete with assurances that the university will respect students' right to privacy in their dormitory room.

As a member of the residence hall community and as a tenant of the College, you have a right to privacy in your own room. You should in no way be subject to arbitrary entry or searches by College officials or by anyone else. Additionally, you do not have the right at any time to enter another student's room without his or her specific permissions [sic ].

The College cannot, and will not, authorize any person to enter your room without your specific permission. The City Police Department, Campus Public Safety, and other law enforcement agencies are subject to the legal processes which govern entry into any dwelling.

RALPH informs students that law enforcement officials seeking entry to a student's room must have a search warrant which the student has a right to see. No member of the college or residence hall staff can enter a student's room without at least twenty-four hours' advance notice, except in "emergency situations when there is a reasonable fear of imminent danger to life, safety, health, or property."

Most of the campus living situations have unlimited visitation hours, although in a few dormitories visits may occur only from 6:00 a.m. to midnight, Sunday to Thursday, and from 6:00 a.m. to 2:00 a.m. on Friday and Saturday. Any visitor who stays past midnight must register with residence hall staff.

In 1966 the SUNY Board of Trustees adopted Resolution 66-156 which, as amended by Resolution 73-26 in 1973 and by Resolution 79-100 in 1979, reads as follows:

No authorization will be given to private commercial enterprises to operate on State University campuses or in facilities furnished by the University other than to provide for food, legal beverages, campus bookstore, vending, linen supply, laundry, dry cleaning, banking, barber and beautician services and cultural events.

The parties stipulated that the Resolution (hereinafter "the Regulation") prevents SUNY students from inviting into their dormitory rooms commercial enterprises or persons who furnish information, provide a product, or provide a service where a fee is charged or a profit involved. A statement of SUNY's policy prohibiting "selling and soliciting merchandise and services in residence halls" appears in RALPH and other university publications.

The commercial enterprise which precipitated this case and at least one other, see American Future Sys., Inc. v. Pennsylvania State Univ., 752 F.2d 854 (3d Cir.1984), cert. denied, 473 U.S. 911, 105 S.Ct. 3537, 87 L.Ed.2d 660 (1985), is American Future Systems, Inc. ("AFS"). AFS sells cookware, china, crystal, and silverware to college students through group demonstrations arranged by students. It obtains students' names from student directories and referrals, or through a procedure called "chatterbooking." In chatterbooking, an AFS representative invites students to register for a vacation drawing. AFS then promises a free Florida vacation to students who invite friends to an AFS demonstration in their dormitory rooms.

The instant controversy arose when SUNY/Cortland officials told Kathy Rapp, the AFS regional director, to leave a dormitory room where she was giving an AFS presentation. When she refused, she was arrested and ultimately charged with loitering, soliciting without a permit, and trespass. AFS, Rapp, and Todd Fox, a SUNY/Cortland student who had been denied

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permission to...