Gay Students Organization of University of New Hampshire v. Bonner, Nos. 74--1075

• Decision Date: 30 December 1974
• Docket Number: Nos. 74--1075,74--1076
• Citation: 509 F.2d 652
• Parties: GAY STUDENTS ORGANIZATION OF the UNIVERSITY OF NEW HAMPSHIRE et al., Plaintiffs-Appellees, v. Thomas N. BONNER, Individually and as President of the University of New Hampshire, et al., Defendants-Appellants. GAY STUDENTS ORGANIZATION OF the UNIVERSITY OF NEW HAMPSHIRE et al., Plaintiffs-Appellees, v. Meldrim THOMSON, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 652

509 F.2d 652

GAY STUDENTS ORGANIZATION OF the UNIVERSITY OF NEW HAMPSHIRE

et al., Plaintiffs-Appellees,

v.

Thomas N. BONNER, Individually and as President of the

University of New Hampshire, et al.,

Defendants-Appellants.

GAY STUDENTS ORGANIZATION OF the UNIVERSITY OF NEW HAMPSHIRE

et al., Plaintiffs-Appellees,

v.

Meldrim THOMSON, Jr., Defendant-Appellant.

Nos. 74--1075, 74--1076.

United States Court of Appeals, First Circuit.

Dec. 30, 1974.

Charles G. Douglas, III, Concord, N.H., with whom Michael M. Black, Concord, N.H., was on brief, for Meldrim Thomson, Jr., appellant.

Joseph A. Millimet, Manchester, N.H., with whom Silas Little, III and Devine, Millimet, Stahl & Brahch, Manchester, N.H., were on brief, for Thomas Bonner and others, appellants.

Richard S. Kohn, N.H.Civ.Lib.Union, Concord, N.H., for appellees.

E. Carrington Boggan, New York City, on brief, for Lambda Legal Defense and Education Fund, Inc., amicus curiae.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

The Gay Students Organization (GSO) was officially recognized as a student organization at the University of New Hampshire in May, 1973, ¹ and on November 9, 1973 the group sponsored a dance on campus. The dance itself was held without incident, but media coverage of the event and criticism by Governor Meldrim Thomson, Jr., led the University's Board of Trustees to reconsider its treatment of the organization. The next day, November 10, 1973, the Board issued a 'Position Statement' which indicated that the University would attempt to have determined the 'legality and appropriateness of scheduling social functions by the Gay Students Organization' and which '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.' The University subsequently filed a declaratory judgment action in Strafford County Superior Court on November 21, 1973.

When the GSO requested permission to sponsor a play on December 7 and have a social function afterward, the University permitted the play but denied permission for the social function. The play was given as scheduled, and the GSO held a meeting following it. Sometime during the evening copies of two 'extremist' homosexual publications were distributed by individuals over whom the GSO claims it had no control. Governor Thomson wrote an open letter to the trustees after the play, warning that if they did not 'take firm, fair and positive action to rid your campuses of socially abhorrent activities' he would 'stand solidly against the expenditure of one more cent of taxpayers' money for your institutions.' Dr. Thomas N. Bonner, President of the University, then issued a public statement condemning the distribution of the homosexual literature and announcing that a repetition of the behavior would cause him to seek suspension of the GSO as a student organization. Bonner also revealed that he had '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.'

The lawsuit which is the subject of this appeal was filed in federal district court by the GSO on November 29, 1973. The complaint alleged First and Fourteenth Amendment violations giving rise to a cause of action under 42 U.S.C. § 1983, and sought injunctive and declaratory relief. A hearing was held on December 10 on the GSO's request for a preliminary injunction, and the parties agreed that the hearing would serve as a final hearing on the merits. Defendants, hereinafter 'appellants', requested that the proceeding be reopened for the submission of additional evidence, and a second hearing was held on December 28. On January 16, 1974, the district court held for the GSO (sometimes hereinafter referred to as 'appellees') on the ground that its members had been denied their First Amendment right of association. 367 F.Supp. 1088, 1095 (D.N.H.1974). The court found no direct impairment of the GSO's 'more traditional First Amendment rights', presumably the freedoms of speech, assembly and petition from which the right of association is derived. See Healy v. James, 408 U.S. 169, 181, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). The court also indicated that in its view substantial equal protection questions were raised by defendants' policy, and that, First Amendment considerations aside, the state could not demonstrate that the classification rationally furthered a legitimate state interest. 367 F.Supp. at 1098. The court enjoined appellants 'from prohibiting or restricting the sponsorship of social functions or use of University facilities for such functions by the Gay Students Organization' and 'from treating the Gay Students Organization differently than other University student organizations.'

Before considering the merits of the appeal, we must deal with several procedural issues raised by appellants. Governor Thomson claims, first of all, that the district court was without jurisdiction to hear the case under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 because appellants are not 'persons' within the ambit of § 1983. In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Supreme Court held in an action for damages that a municipal corporation is not a 'person' within the meaning of the statute, and City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), authoritatively rejected the argument that a different result is called for in cases involving requests for injunctive relief. In light of these cases, we would be inclined to hold, were the question before us, that the University of New Hampshire, 'a body politic and corporate' established by state statute and supported by state funds, is not subject to suit under § 1983. See, e.g., Blanton v. State University of New York, 489 F.2d 377, 382 (2d Cir. 1973); Adamian v. University of Nevada, 359 F.Supp. 825 (D.Nev.1973); Note, the Supreme Court, 1972 Term, 87 Harv.L.Rev. 1, 258 (1973). But here the action was brought, not against the University or its Board of Trustees as a body, but against a number of the University's officials. The defendants are Bonner, President and an ex officio member of the Board of Trustees; Stevens, Vice Provost for Student Affairs; O'Neil, Director, Recreation and Student Activities; Governor Thomson, an ex officio member of the Board; and the other members of the Board, including Dunlap, the Chairman. These persons were originally sued both individually and in their official capacities, but the action against them as individuals was later dismissed, with the approval of the GSO. They remain defendants only as officials of the University, but we do not read Bruno to hold that officials, as opposed to state instrumentalities, are not § 1983 'persons', at least so far as injunctive or declaratory relief is concerned. Ybarra v. City of Town of Los Altos Hills, 503 F.2d 250 (9th Cir. 1974); Rochester v. White, 503 F.2d 263 (3d Cir. 1974), rev'g, Rochester v. Baganz, 365 F.Supp. 179 (D.Del.1973); The Supreme Court, 1972 Term, supra, at 258--60. We cannot accept the conclusion that § 1983, directed specifically and exclusively at misconduct carried out under the color of state law, is not available to challenge the actions of persons who are acting in their capacities as state officials. ²

The other preliminary issues which must be dealt with arise out of appellees' failure to timely serve several appellants. Bonner, Stevens and O'Neil were properly served, and attorney Joseph Millimet was authorized to and did accept service on behalf of Dunlap, Chairman of the Board of Trustees. The other members of the Board, however, were not served in advance of the hearings before the district court. Some were served on January 15, 1974, others on January 19, and Trustee Spanos was not served at all. The trustees who were not served before the hearings (hereinafter referred to as 'the trustees') contend that the district court's opinion, filed on January 16, is not binding on them. The district court held a hearing on this matter on January 29, and on January 31 filed a Memorandum Opinion on Motions to Dismiss. The court, with the agreement of the GSO, dismissed the action as to the trustees in their individual capacities, but denied the motions to dismiss as they related to the trustees in their official capacities.

Deferring for the moment the status of Governor Thomson, we note first that there is no challenge to the district court's finding that the trustees had actual knowledge of the pendency of the lawsuit. See Adams v. School Board, 53 F.R.D. 267 (M.D.Pa.1971). Indeed, they also knew that the court contemplated a speedy decision. As to the court's finding of waiver of defects in service, the sequence of relevant events is as follows. The Board, through its Executive Committee, had earlier authorized the bringing of the state court proceeding against the GSO in order to obtain a resolution of what was seen as a troublesome legal issue. On December 17, a motion to reopen the proceedings in this case to take further evidence was filed on behalf of 'the University of New Hampshire (sic) and the other defendants'; the motion also demanded from appellees a copy of the literature distributed at the December 7 performance of the play and the appearance of GSO's president at the hearing. This was granted on December 20, and the reopened hearing was held on December 28, in which three University officials and a GSO member testified. Among those testifying was Allen Bridle, one of the trustees now challenging service and apparently the only trustee with personal knowledge relevant to the subject matter of the hearing.

At the January 29 hearing in the district court, Millimet stated that in the state court action he was representing the University and 'the trustees in so far as they are the...