Goldberg v. Regents of University of Cal.

• Decision Date: 28 February 1967
• Court: California Court of Appeals Court of Appeals
• Parties: Arthur L. GOLDBERG, Michael L. Klein, David A. Bills and Nicholas Zvegintzov, Plaintiffs and Appellants, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendants and Respondents. Civ. 23556.

Page 463

57 Cal.Rptr. 463

248 Cal.App.2d 867

Arthur L. GOLDBERG, Michael L. Klein, David A. Bills and Nicholas Zvegintzov, Plaintiffs and Appellants, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendants and Respondents.

Civ. 23556.

Court of Appeal, First District, Division 2, California.

Feb. 28, 1967.

Hearing Denied April 26, 1967.

Garry, Dreyfus & McTernan, Donald L. A. Kerson, San Francisco, for appellants.

Thomas J. Cunningham, John P. Sparrow, Milton H. Gordon, Donald L. Reidhaar, Berkeley, for respondents.

TAYLOR, Associate Justice.

In this action, plaintiffs, Arthur L. Goldberg, Michael L. Klein, David A. Bills and Nicholas Zvegintzov (hereafter referred to by their last names), challenge, upon constitutional grounds, their suspension and dismissal from the University of California on April 20, 1965. This appeal is from a judgment of dismissal entered on an order sustaining the general demurrer of defendants, The Regents of the University of California (hereafter University), without leave to amend, to plaintiff's petition for a writ of mandate seeking reinstatement to the University. Plaintiffs contend that their petition states a cause of action as the action of the University, through its disciplinary committee, was an unconstitutional limitation of their First Amendment Rights, was taken pursuant to a constitutionally vague regulations, deprived them of procedural due process, and constituted an invasion of an area exclusively operated by state law. We have concluded that there is no merit in any of these contentions.

The basic facts are not in dispute. Until April 20, 1965, all plaintiffs were students in good standing at the Berkeley campus ¹ of the University of California. Each of them participated in a different manner in rallies held on March 4 and March 5 on the campus to protest the March 3 arrest of John Thomson (hereafter Thomson), a nonstudent who had displayed on campus a sign reading: 'Fuck! Verb.' Three of the plaintiffs (Goldberg, Klein and Bills) were also arrested and charged on March 4, 1965, with violations of the obscenity statutes (Pen.Code, §§ 311, subd. 2, 311, subd. 6) and disturbing the peace (Pen.Code, § 415) on the basis of the same facts that led to the University disciplinary proceedings. These criminal prosecutions were still pending on April 20, 1965.

On March 17, the Dean of Men wrote to each plaintiff that he had been charged with violating the University-wide policy on student conduct and discipline (as set forth below) ² and quoted the pertinent portion of the General Catalogue of the Berkeley campus (quoted below). ³ The letters detailed the acts charged against each plaintiff (likewise set forth below). ⁴

The letters informed plaintiffs that a special Ad Hoc Committee (hereafter Committee) had been appointed to hear the matter; ⁵ that plaintiffs might wish to obtain counsel to represent them at the hearing; and that they should plan to be present at a prehearing conference scheduled for the afternoon of Friday, March 19. Plaintiffs were not personally present at the prehearing conference but were represented by their attorney who raised several objections. The Committee considered and denied these objections, formulated the issues to be considered and procedures to be followed, and indicated that the hearings would begin on Monday, March 29. On Friday, March 26, the Committee was served with an alternative writ of prohibition issued by the Superior Court of Alameda County on behalf of Klein and Bills who were accordingly excluded from the March 29 hearings. The peremptory writ was denied and the temporary restraining orders were dissolved on Friday, April 2, and the hearing resumed as to all plaintiffs on Tuesday, April 6.

After unnecessfully attempting to obtain a stipulation concerning the factual matters charged, the Committee held further hearings. At one of these hearings, plaintiffs' counsel took offense at something said and walked out, followed by plaintiffs. The hearings were continued and resumed on the evening of April 8, when plaintiffs were represented by another counsel as their original counsel was unavailable. Klein became dissatisfied with that representation and after making a short and polite statement of his reasons, withdrew. All later hearings were set for times convenient to plaintiffs' original counsel. The three plaintiffs present did not testify at the hearings but presented witnesses on their behalf. The final hearing was postponed until April 15 so that the Committee could hear the testimony of Lieutenant Chandler, who had made the arrests on March 4 and was personally present at all the events involved.

The Committee's findings of fact acknowledged that the substantial differences between the conduct of the four plaintiffs necessitated separate findings, but noted that the charges against each had been abundantly proved. The Committee concluded that plaintiffs had engaged in a clear pattern of planned and coordinated activity that had as one of its purposes a test of University reaction. The Committee also rejected the contention that the disciplinary hearings should not have proceeded as to Goldberg, Klein and Bills until their court cases were completed, reasoning that both for the good of the students and the University community, student disciplinary matters should be resolved as soon as practicable.

The Committee agreed unanimously that plaintiffs had committed the acts charged and concluded that their actions 'did constitute violations of the University's Regulations on Student Conduct and Discipline. (Quoted above, fn. 2.) Whether motivated by social protest or not, the members (of the Committee) agreed that the loud use and prominent display of the words in question in a public place such as the Sproul-Student Union Plaza is a violation of the regulation.'

Because of the substantial differences between the seriousness of the individual offenses, the Committee recommended different disciplinary measures as to each plaintiff. Goldberg was dismissed from the University, effective April 20, 1965; Klein and Zvegintzov were suspended until September 13, 1965; and Bills suspended until June 10, 1965. ⁶ The disciplinary actions were reviewed by the Acting Chancellor of the Berkeley campus and the President of the University, and on August 6, 1965, plaintiffs were informed that there would be no interference with the discipline imposed.

Preliminarily, we note that mandate is the appropriate remedy in the instant case (Munns v. Stenman, 152 Cal.App.2d 543 at 546, 314 P.2d 67; Miller v. Dailey, 136 Cal. 212, 68 P. 1029; Code Civ.Proc. § 1094.5). As the appeal is from an order sustaining a general demurrer, we look only to the petition to determine whether, as a matter of law, a cause of action is stated on any theory (McDonell v. American Trust Co., 130 Cal.App.2d 296, 279 P.2d 138). The answer, made a part of the record on appeal by the University, cannot be considered and is hereby stricken from the record (Calif. Rules of Court, rule 12).

Article IX, section 9 of the state Constitution, provides that the University of California shall constitute a public trust to be administered by the existing corporation known as The Regents of the University, with full powers of organization and government, subject only to such legislative control as may be necessary to insure compliance with the terms of the endowment of the University and the security of its funds. Accordingly, the University is a constitutional department or function of the state government (Williams v. Wheeler, 23 Cal.App. 619, 138 P. 937; Newmarker v. Regents of Univ. of Cal., 160 Cal.App.2d 640, 325 P.2d 558). The Regents have the general rule-making or policy-making power in regard to the University (Estate of Royer, 123 Cal. 614, 56 P. 461, 44 L.R.A. 364), and are (with exceptions not material here) fully empowered with respect to the organization and government of the University (Williams v. Wheeler, 23 Cal.App. 619, 138 P. 937; Wallace v. Regents, etc., 75 Cal.App. 274, 242 P. 892), including the authority to maintain order and decorum on the campus and the enforcement of the same by all appropriate means, including suspension or dismissal from the University. Pursuant to this authority, the previously quoted regulations concerning student conduct were adopted. Also pertinent are the particular resolutions set forth below. ⁷

The parties agree that the University's rule-making powers and its relationship with its students are subject to federal constitutional guarantees. Before discussing the contentions raised, we will briefly describe our approach to the application of these guarantees. The case is one of first impression in this state and requires the drawing of fine lines of demarcation between matters that involve the legitimate interests of the University and those that involve constitutionally protected rights. ⁸ The facts here presented relate to on-campus conduct expressing criticism and disapproval by highly visible and provocative means.

The more recent federal cases stress the importance of education to the individual and conclude that attendance in a state university is no longer considered a privilege as in Hamilton v. Regents of University of California (1934) 293 U.S. 245, 55 S.Ct. 197, 79 L.Ed. 343, ⁹ but is now regarded as an important benefit. ^{10 10} (Dixon v. Alabama State Board of Education (5 Cir., 1961) 294 F.2d 150, cert. denied 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193; Knight v. State Board of Education (D.C.1961) 200 F.Supp. 174.)

In the Dixon and Knight cases, it was held that procedural due process required a hearing before students who participated in demonstrations violating laws concerning the separation of the races in public places could be dismissed or suspended from the state university. As stated in Dixon: 'The precise nature of the private interest involved in this case is the right to remain ast a...