Gay Students Org. of U. of New Hampshire v. Bonner

• Decision Date: 16 January 1974
• Docket Number: Civ. A. No. 73-279.
• Citation: 367 F. Supp. 1088
• Parties: GAY STUDENTS ORGANIZATION OF the UNIVERSITY OF NEW HAMPSHIRE, et al. v. Thomas N. BONNER, Individually and as President of the University of New Hampshire, et al.
• Court: U.S. District Court — District of New Hampshire

367 F. Supp. 1088

GAY STUDENTS ORGANIZATION OF the UNIVERSITY OF NEW HAMPSHIRE, et al. v. Thomas N. BONNER, Individually and as President of the University of New Hampshire, et al.

Civ. A. No. 73-279.

United States District Court, D. New Hampshire.

January 16, 1974.

COPYRIGHT MATERIAL OMITTED

Richard S. Kohn, New Hampshire Civil Liberties Union, Concord, N. H., for plaintiffs.

Joseph A. Millimet, Devine, Millimet, Stahl & Branch, Manchester, N. H., for defendants.

OPINION

BOWNES, District Judge.

This civil rights action arises out of the denial by University of New Hampshire officials of the right of the Gay Students Organization (hereinafter GSO), a homosexual organization, to hold "social functions." The GSO claims that the denial violates its First and Fourteenth Amendment rights and requests that this court adjudicate and declare its rights to organize and function on the University campus. Although a similar declaratory action has been filed in the state court by the University Trustees,¹ counsel for the University has joined in the request that this court grant declaratory relief. Jurisdiction is based on 42 U.S.C. § 1983, 28 U.S.C. § 1343, and 28 U.S.C. §§ 2201, 2202.

Originally this case was set down for hearing on a petition for a preliminary injunction. After the first hearing on the preliminary injunction, both parties agreed that the hearing could be considered a final hearing on the merits. Rule 65 Fed.R.Civ.P. A short time after the hearing, defendant requested an opportunity to introduce additional evidence. The request was granted, and another hearing was held. At the conclusion of that hearing, counsel for both sides still agreed that a decision on the permanent injunction should be reached and that the court should address itself not only to the immediate question of whether or not the GSO could be prohibited from engaging in social functions, but also to the constitutional aspects of the University's power to regulate the GSO, with particular reference to the circumstances under which recognition and/or access to University facilities could be denied or withdrawn.

I. FACTUAL BACKGROUND

The GSO was organized and officially recognized as a student organization in May of 1973. The normal recognition procedure was followed. Cf. September 9, 1973 Supplement to Student Handbook, Pl.'s Ex. G. At that time the GSO filed a Statement of Purposes, which appears in the margin.² On November 9, 1973, the GSO sponsored a dance on campus. This function was held without incident. There were no official complaints about the dance, and no evidence was adduced to show that improper or illegal activities had taken place. After the dance, there was criticism by the Governor of New Hampshire, who complained to the University about the propriety of allowing such a "spectacle." And on November 10, 1973, the Board of Trustees issued a "Position Statement" which noted the "continuing public and executive committee concern" with the GSO. The Trustees voted to get a conclusive determination of the "legality and appropriateness of scheduling social functions by the Gay Students Organization" and "directed that in the interim the University administration would schedule no further social functions by the Gay Students Organization until the matter is legally resolved." Pl.'s Ex. 1 Emphasis added.

Thereafter, the GSO asked for permission to sponsor an on-campus play on December 7, 1973, and to have a social function following the play. The GSO was granted the right to put on the play, but permission for a social function following the play was denied.³ See letter to Wayne April, President, GSO, from Michael O'Neil, Director, Recreation and Student Activities, dated November 21, 1973. Complaint, Appendix II. On December 3, 1973, the GSO brought a petition for a temporary restraining order asking that the Trustees be enjoined from prohibiting the social function following the play. The temporary restraining order was denied on the ground that there was no evidence of irreparable harm.

The play was presented on December 7th as scheduled. Although the play itself caused little comment, there was some reaction to "Fag Rag Five" and "Fag Rag VI," two "extremist homosexual" publications which were distributed sometime during the evening. Much of the University's three witnesses' testimony centered on the GSO's role in the distribution of these publications. Richard Stevens, Vice Provost of student affairs, testified that, although he attended the play, he arrived too late to observe any distribution of the publications in question. Michael O'Neil, Director of Recreation and Student Activities, testified that the GSO asked his permission to sell the publications. This permission was denied by O'Neil, on the ground that the organization had not received a permit to sell publications. See Student Handbook Rule 11.14(s), Pl.'s Ex. G. The president of the GSO then asked for permission to distribute the two publications. After a cursory examination of the publications, O'Neil denied permission on the ground that the distribution would not be in the best interest of the University. Then, at O'Neil's request, the publications, which were on a table at the entrance to the theatre, were taken away and, according to O'Neil, he saw no further attempts at distribution.

Allen R. Bridle, a student trustee of the University, was the only University witness to observe any distribution of the publications, either by GSO members or others. Bridle testified that he was handed a copy of Fag Rag VI by Louis Kelly, Secretary-Treasurer of the GSO, who was taking tickets and handing out programs when Bridle arrived. Although Bridle testified that he arrived well before the play began, he saw no one else hand out the publications, nor did he see Mr. Kelly hand the literature in question to anyone else. Kelly took the stand and stated that the GSO did not advocate this type of extremist shock literature. He testified that the Fag Rag literature was brought to the play by members of the Fag Rag staff, persons over whom the GSO had no control. Kelly emphatically denied having ever given anyone a copy of Fag Rag VI, but did admit that some copies may have been distributed inside the theatre by members of the Fag Rag Organization who had brought the magazines with them from Boston. In addition, a letter from Philip S. Dunlap to Governor Thompson, dated December 21, 1973, Pl.'s Ex. E, makes it unclear whether Bridle himself was ever handed a copy of the publication.⁴

Aside from the literature which was handed out, very little objectionable activity occurred at the play. There was no evidence that the play was objectionable, although Bridle disagreed with its theme. Bridle testified that he observed "hand-holding" and "hugging" by members of the same sex, but Stevens saw nothing which was violative of Student Handbook Rule 10.2⁵ or which interfered with the University's mission of education. In characterizing the GSO's handling of the distribution incident, O'Neil testified that Wayne April, President of the GSO, had acted responsibly in promptly following his instructions to remove the publications from the theatre. On this view of the evidence, I cannot help but conclude that no University of New Hampshire students were responsible for the distribution of the publications at the play.

After the play, the Governor of New Hampshire wrote an open letter to the Board of Trustees, wherein he stated:

Therefore, after very careful consideration, I must inform you the trustees and administration that indecency and moral filth will no longer be allowed on our campuses.

I am not interested in legalistic hairsplitting that begs these important issues.

Either you take firm, fair and positive action to rid your campuses of socially abhorrent activities or I, as governor, will stand solidly against the expenditure of one more cent of taxpayers' money for your institutions.

Translated simply, that means that unless you take successful corrective action before the capital budget is reconsidered, I shall oppose the inclusion of any money therein for the University and will veto that budget, if necessary. Pl.'s Ex. E dated December 15, 1973.

Shortly thereafter, on December 17, 1973, Dr. Bonner, President of the University, issued a public statement which condemned the distribution of the Fag Rag literature, ordered an "immediate investigation" to establish responsibility for the distribution, and declared:

I am today serving notice on the Gay Students Organization that any repetition of the offending behavior of December 7, 1973 will result in my seeking its immediate suspension as a student organization until the courts have acted on the several issues involving GSO now before them. The organizations will be held fully responsible for any ancillary activities carried on by those attracted from other places to a GSO event.⁶

I have ordered that the current Trustee ban on GSO social functions be interpreted more strictly by administrative authorities than had been the case before December 7, 1973. Pl.'s Ex. F.

This declaration tightened the restrictions on the GSO's activities, specifically indicating that the ban on social functions would henceforth be interpreted more expansively than it had in the past.

II. THE LEGAL SETTING

In recent years students have more militantly asserted their rights, and this case involves yet another confrontation between a group of university students and university officials and trustees. With the lowering of the age of majority to eighteen, the in loco parentis rationale for vesting unbridled discretion in university officials is no longer tenable. Wood v. Davison, 351 F.Supp. 543, 546 (N.D.Ga.1972). One commentator has suggested that the average student is more than twenty-one years old and "is surely an adult," C. A. Wright, The Constitution on the Campus, 22 Vand.L. Rev. 1027, 1052-53 (1971); and Vice Provost Stevens...