Lee v. Board of Regents of State Colleges

• Decision Date: 15 December 1969
• Docket Number: No. 68-C-61.,68-C-61.
• Parties: Jack K. LEE, Gordon W. Riley, and the Reverend Leonard R. Scharmach, Plaintiffs, v. The BOARD OF REGENTS OF STATE COLLEGES et al., William Lee Carter, James Demeter, Pennelope Muehl, Michael Nickodem, Dennis Thornton, Brian W. Townsend, Mary Mills, Janette Bohl, Joseph Hlavacek, Ronald Merrell, Donald L. Power, and Edwin E. Thele, William Armstrong, John Beilfuss, Ellen Dreger, James Frey, Lance Hill, Pamela Johnson, Hartley M. Masler, John McIntyre, Susan Santeler, David Soleau, Mary E. Struckmeyer, Thomas Watts, and Robert Zuck, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

306 F. Supp. 1097

Jack K. LEE, Gordon W. Riley, and the Reverend Leonard R. Scharmach, Plaintiffs, v. The BOARD OF REGENTS OF STATE COLLEGES et al., William Lee Carter, James Demeter, Pennelope Muehl, Michael Nickodem, Dennis Thornton, Brian W. Townsend, Mary Mills, Janette Bohl, Joseph Hlavacek, Ronald Merrell, Donald L. Power, and Edwin E. Thele, William Armstrong, John Beilfuss, Ellen Dreger, James Frey, Lance Hill, Pamela Johnson, Hartley M. Masler, John McIntyre, Susan Santeler, David Soleau, Mary E. Struckmeyer, Thomas Watts, and Robert Zuck, Defendants.

No. 68-C-61.

United States District Court W. D. Wisconsin.

December 15, 1969.

Louis D. Gage, Jr., Janesville, Wis., Charles Hoornstra, Madison, Wis., for plaintiffs.

Robert W. Warren, Atty. Gen., Charles A. Bleck, Asst. Atty. Gen., Madison, Wis., for defendant Board of Regents.

Thomas Godfrey, Elkhorn, Wis., for individual defendants.

JAMES E. DOYLE, District Judge.

This is an action brought under the Civil Rights Act of 1871, 42 U.S.C. § 1983, in which plaintiffs seek a declaration that they have been deprived of rights secured to them by the First and Fourteenth Amendments of the United States Constitution. Jurisdiction of this court is asserted under 28 U.S.C. § 1343 and 28 U.S.C. § 2201.

Plaintiffs allege that under chapter 37 of the Wisconsin Statutes, the defendant Board of Regents of State Colleges now known as the Board of Regents of State Universities is empowered to govern and manage "the branch of higher education in the State of Wisconsin known as the State University System which includes Wisconsin State University-Whitewater." Plaintiffs further allege that defendant William Lee Carter is the president of Wisconsin State University-Whitewater and acts under a delegation of authority from the Board of Regents; that other defendants are members of the Student Publications Board at Whitewater and, by authority delegated to them by the Board of Regents and the president, set policy and make rules and regulations for a campus newspaper known as the Royal Purple owned by the University; and that the remaining defendants are members of the staff of the newspaper and, by authority delegated to them by the Student Publications Board, set policy and make rules and regulations for the newspaper.

Plaintiffs allege that on October 6, 1967, and again on October 9, 1967, plaintiff Riley submitted an "editorial advertisement" concerning a university employees union to the Royal Purple and was informed by a staff member that the paper would not publish it; that the staff member said that it was the paper's policy not to publish such advertisements; and that the staff member sent plaintiffs a copy of this policy entitled "Royal Purple Policies—Types of Advertising Accepted" (Exhibit "C" attached to complaint).

It is further alleged that on October 6, 1967, plaintiff Scharmach submitted an advertisement entitled "An Appeal to Conscience", which dealt with alleged discrimination, and that this advertisement was refused in a like manner.

On November 6, 1967, plaintiff Lee allegedly submitted an advertisement to the Royal Purple concerning race relations and the Viet Nam war; the paper is alleged to have refused to accept this advertisement for publication.

Plaintiffs state that on several occasions they have requested a change in this policy by appeals to both the Student Publications Board and President Carter. Both refused to change the policy. Plaintiffs claim that these actions amount to a deprivation, under color of state law, of their rights of freedom of speech and of press guaranteed to them by the First and Fourteenth Amendments.

On August 30, 1968, defendants' motions to dismiss were denied. Plaintiffs then moved for summary judgment. Affidavits, briefs and documentary exhibits were submitted to the court.

Defendants then moved to strike the affidavit of one Ruth Miner. This affidavit sought to establish the accuracy and veracity of numerous documents submitted by affiant Miner. Defendants did not, however, object to the admissibility of all of these documents. Since the documents objected to are not necessary to a determination whether summary judgment should be granted, I find it unnecessary to rule on defendants' motion to strike the affidavit of Ruth Miner.

On the basis of the pleadings, the affidavits and the entire record herein, I find that there is no dispute as to the following material facts: that the Royal Purple is a campus newspaper at Whitewater State University which is staffed by volunteer student help, both paid and unpaid; that the staff of the Royal Purple is supervised by the faculty and administration of Whitewater State University; that a faculty-student committee at Whitewater entitled the Student Publications Board has the function of reviewing general policies governing student publications and making recommendations when needed; that at all times material hereto the Student Publications Board and the staff of the Royal Purple had adopted a policy of not accepting "editorial advertisements," i. e., advertisements which express a view on "political" issues, in the broad sense of the word; that during October and November of 1967 plaintiffs submitted editorial advertisement copy of the kind alleged in their complaint to the Royal Purple; that this editorial advertisement copy was not accepted for publication by the staff of the Royal Purple because of the Royal Purple's policy against printing such material as advertisements; that some of the plaintiffs have asked the Royal Purple staff, the Student Publications Board and defendant William L. Carter, President of Whitewater State University, to modify the policy of not accepting editorial advertisements; and that each of these entities has refused to modify such policy and that defendant Carter has expressly approved the continued enforcement of this policy.

There does appear to be some dispute as to the role of the defendant Board of Regents in this controversy. Plaintiffs allege that defendant Carter and the Student Publications Board have been delegated authority by the Board of Regents to set policy and make rules and regulations for the Royal Purple and that the staff of the Royal Purple in turn has been delegated authority by the Student Publications Board to set policy and make rules and regulations for the newspaper. The affidavit of Eugene R. McPhee, secretary of the Board of Regents, contradicts these and other allegations by plaintiffs. Affiant McPhee avers "that the defendant Board of Regents has not delegated any authority to the faculty at Whitewater State University by which the faculty may create or delegate authority to the Student Publications Board"; that the Board of Regents has not delegated authority in regard to the making of rules, policies or regulations in the matter of the student newspaper to either the publications board or the staff members of the newspaper; that the Board of Regents "has never specifically authorized the president of the Wisconsin State University—Whitewater to make rules, regulations or policy for the student newspaper"; that the defendant Board of Regents did not have any knowledge of the advertising policies of the Royal Purple, was unaware of the Royal Purple's refusal to print plaintiffs' advertisements, and was "completely without knowledge as to the alleged facts in support of the plaintiffs' claim of denial of constitutional rights"; that plaintiffs never brought the advertising policies of the Royal Purple to the attention of the Board of Regents or requested the Board to review or change such policies; and that neither defendant Carter, the Student Publications Board or the Royal Purple staff ever submitted such advertising policies to the Board of Regents for approval or action of any kind.

Defendant Board of Regents argues that because it did not have knowledge of the facts complained of, because it delegated no authority to the other defendants and because the record shows no misuse or abuse of state power on its part, declaratory judgment as to it is improper.

Under § 37.11, Wis.Stats., the Board of Regents is empowered to govern the university, to appoint and remove its president and to prescribe his duties. The president is an employee of the Board of Regents. Martin v. Smith, 239 Wis. 314, 1 N.W.2d 163, 140 A.L.R. 1063 (1941). It is undisputed that the president of Whitewater State University, defendant Carter, has supported the advertising policies here in question (Exhibit "G" attached to the complaint). These facts, plus the fact that the Board of Regents may have the power to enforce the policies in question, make the Board a proper party to an action for a declaration of rights. Williams v. Virginia State Bd. of Elections, 288 F.Supp. 622 (E.D.Va.1968), aff'd 393 U.S. 320, 89...