Garvin v. Rosenau, 71-1473.

• Decision Date: 07 February 1972
• Docket Number: No. 71-1473.,71-1473.
• Parties: Benita GARVIN, as next friend for Peter Link, individually and on behalf of others similarly situated and on behalf of the Redford Student Mobilization Committee, a non-profit unincorporated voluntary association, Plaintiffs-Appellants, v. Arthur ROSENAU, individually and in his capacity as principal of Redford High School, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

455 F.2d 233 (1972)

Benita GARVIN, as next friend for Peter Link, individually and on behalf of others similarly situated and on behalf of the Redford Student Mobilization Committee, a non-profit unincorporated voluntary association, Plaintiffs-Appellants, v. Arthur ROSENAU, individually and in his capacity as principal of Redford High School, et al., Defendants-Appellees.

No. 71-1473.

United States Court of Appeals, Sixth Circuit.

February 7, 1972.

Ronald Reosti, and Gabe Kaimowitz, Detroit, Mich., for plaintiffs-appellants; Lafferty, Reosti, Jabara, Papakhian, James, Stickgold, Smith & Soble, Detroit, Mich., on brief.

Carl H. von Ende, Detroit, Mich., for defendants-appellees; Miller, Canfield, Paddock & Stone, Detroit, Mich., on brief.

Before PHILLIPS, Chief Judge, and PECK and MILLER, Circuit Judges.

WILLIAM E. MILLER, Circuit Judge.

A group of students associating as the Student Mobilization Committee complains that the principal of Redford High School in Detroit, Michigan, infringed upon its First Amendment guarantee of free speech and other constitutional rights. Specifically, the students allege that because their organization espouses a "partisan" idea, it is denied the opportunity to express and promote its point of view within the school. The student association (SMC) desires to have the same benefits accorded to other student groups "recognized" by the school administration. The complaint seeks relief pursuant to 42 U.S.C. § 1983 and asks for a declaratory judgment that the denial of recognition to the organization violates the First, Fourth, and Fourteenth Amendments. It further seeks an injunction restraining the defendants from interfering with the constitutional rights of the students. The defendants in the court below denied that any of the students' rights were violated. In the district court, the parties agreed that all argument and testimony relevant to the issue would be presented at a hearing on a motion for preliminary injunction and that such hearing would be treated as one upon the merits. Following the hearing, the district court entered an order abstaining from a decision and dismissing the complaint. From that order the students appeal.

The student organization involved here is a high school chapter of the nationwide Student Mobilization Committee. The Redford SMC opposes United States intervention in Southeast Asia and wishes to express the club views at Redford High School. The student group sought official school recognition by complying with prescribed conditions and submitted to the defendant principal a statement of its aims and constitution. The principal denied recognition because ". . . the general policy of the school was opposed to recognizing political activity groups representing one point of view."¹ Without official recognition, a school group cannot announce club meetings, cannot use school bulletin boards or put up posters in the school buildings, cannot have a club booth in the school or distribute literature therein, cannot raise funds for the organization within the school, cannot plan assembly programs, and cannot meet in school facilities at all during the school day. Such a group could, however, apply for after-school use of school facilities, with charge, through the Community Use of Schools Division of the Board of Education. Such withholding of privileges is not imposed as to "recognized" clubs which supposedly do not express the proscribed "partisan" ideas.

The justification for the prohibition against clubs which express a "partisan" point of view is that the principal is "very much concerned about the permitting of any one group that represents one idea only carrying the imprimatur of Redford High School," and that the principal is "very much concerned that clubs of this kind could be a very divisive element."² No evidence was presented that the students involved had interfered with school discipline or the rights of others.

The principal stated that, in keeping with the general policy of the school, no other group supporting one point of view, such as the Young Republicans or the Young Democrats, was given recognition. An Ecology Club was, however, recognized. The principal stated that its purpose was to create a better environment. He found a categorical difference between the idea supported by the SMC and the idea supported by the Ecology Club.³ Although the principal indicated that he was unaware of any partisan political position taken by the Ecology Club, a student member of that group testified that the club distributed literature within the school supporting a particular piece of Michigan legislation allowing private citizens to sue polluters. He further testified that the club actively opposed the construction of the Supersonic Transport.

As stated, the district court applied the doctrine of abstention. The order of the court stated:

Having considered the pleadings, briefs, and affidavits in this matter, it is the opinion of this Court that this matter would be more appropriately handled by the state courts. See Wisconsin v. Constantineau 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 39 U.S.L.W. 4128, Chief Justice Burger dissenting at 4129, (1971); Alberda v. Noell 322 F.Supp. 1379, No. 3060 (E.D.M. February 17, 1971). The court wishes to make it clear that it expresses no view as to the merits of this case, and that it expects that the plaintiffs will be able to have a hearing on the merits in the state court. This Court abstains.

In view of the foregoing, it is hereby ORDERED that the case is dismissed.

Because we disagree with the district court's abstention, we shall consider first, the apparent basis for the court's order and second, our conception of the propriety of the abstention doctrine in the particular circumstances of this case.

In concluding that "this matter would be more appropriately handled by the state courts," the court below cited only Chief Justice Burger's dissent in Wisconsin v. Constantineau, 400 U.S. 433, 439-443, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), and Alberda v. Noell, D.C., 322 F.Supp. 1379 (1971). The Chief Justice's dissent and the district court decision (the latter in turn relying upon the Constantineau dissent) express a common concern. Both deplore the congestion of the federal courts and the presence in those courts of "state" cases considered undesirable.

In Constantineau, supra, a state statute was attacked as violating procedural due process. The statute allowed designated persons, without notice or hearing, to cause to be posted, in all retail liquor outlets a notice that sales or gifts of liquor to named excessive drinkers were forbidden. Although the statute had never been construed or challenged in the Wisconsin courts, the Supreme Court held that the three-judge court properly refused to abstain. In dissenting, the Chief Justice states:

This Court has an abundance of important work to do, which, if it is to be done well, should not be subject to the added pressures of non-urgent state cases which the state courts have never been called on to resolve. 400 U.S. at 443, 91 S.Ct. at 513.

The court in Alberda v. Noell, supra, was presented with constitutional challenges to certain school dress and grooming regulations. The plaintiffs had not sought relief in state court. After a lengthy opinion, the district court abstained from a decision. The court's opinion quoted the above-cited portion of the Constantineau dissent and subsequently concluded that the issues were local school matters which would be more appropriately resolved by the state. The Alberda court made clear its dislike of the "hair" cases and other cases involving "local school matters." The court found "no right, considered especially important by the federal judiciary, threatened; we see no irreparable harm flowing from declining federal jurisdiction." It disapproved of those who would "foist these cases upon the severely beset and overburdened federal courts." 322 F.Supp. at 1383-1384.

It would thus appear that the district court's abstention was grounded upon its concern for judicial economy and its belief that "local school matters" should be handled by state courts. We do not find either consideration sufficient for invoking the abstention doctrine. We think the Supreme Court in Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed.2d 444 (1967), effectively responded to the district court's view of abstention:

In thus expanding federal judicial power, Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor\'s choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, ". . . to guard, enforce, and protect every right granted or secured by the Constitution of the United States . . .," Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 28 L.Ed. 542. "We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum." Stapleton v. Mitchell, D.C., 60 F.Supp. 51, 55; see McNeese v. Board of Education, etc., 373 U.S., 668 at 674, n. 6, 83 S.Ct. 1433, 10 L.Ed.2d 622. Cf. Cohens v. Virginia, 6 Wheat. 264, 404, 5 L.Ed. 257.

The Court then stated that "the judge-made doctrine of abstention, first fashioned in 1941 in Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, sanctions such escape only in narrowly limited `special circumstances.'" In concurring in the Zwickler judgment, Mr. Justice Harlan noted that:

This Court has repeatedly indicated that "abstention" is appropriate "where the order to the parties to repair to the state court

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