Marin v. University of Puerto Rico, Civ. No. 137-72.

• Court: United States District Courts. 1st Circuit. District of Puerto Rico
• Writing for the Court: COFFIN, Circuit , CANCIO and TOLEDO
• Citation: 377 F. Supp. 613
• Parties: Carmen Gloria MARIN, on behalf of Javier Melendez and Ramon Bosque Lugo on behalf of Ramon Bosque Perez, Plaintiffs, v. UNIVERSITY OF PUERTO RICO et al., Defendants.
• Docket Number: Civ. No. 137-72.
• Decision Date: 30 January 1974

377 F. Supp. 613

Carmen Gloria MARIN, on behalf of Javier Melendez and Ramon Bosque Lugo on behalf of Ramon Bosque Perez, Plaintiffs,
v.
UNIVERSITY OF PUERTO RICO et al., Defendants.

Civ. No. 137-72.

United States District Court, D. Puerto Rico.

July 18, 1973.

Opinion on Rehearing September 24, 1974.

Opinion on Post Judgment Motion January 30, 1974.

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COPYRIGHT MATERIAL OMITTED

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COPYRIGHT MATERIAL OMITTED

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Pedro J. Varela, Legal Services, Inc., Rio Piedras, P. R., for plaintiffs

M. Martinez Umpierre, Arecibo, P. R., Alberto Pico, San Juan, P. R., for defendants.

Before COFFIN, Circuit Judge, CANCIO and TOLEDO, District Judges.

OPINION

TOLEDO, District Judge.

This is a three-judge court action filed on February 4, 1972, on behalf of two students¹ of the Arecibo Regional College of the University of Puerto Rico (hereinafter called the Arecibo Regional College), under Section 1981 et seq. of the Civil Rights Act, Title 42, United States Code and under Title 28, United States Code, Section 2281, seeking injunctive and declaratory relief. Plaintiffs pray that we enjoin the University of Puerto Rico and its officials from applying several provisions of the "General Rules and Regulations for the Students of the University of Puerto Rico" (hereinafter called General Rules and Regulations, reproduced in an Appendix hereto), which regulate the conduct of all students in the dependencies of said University.²

Plaintiffs, full time students of the Arecibo Regional College, were suspended for more than one year by the Dean and Director of the Regional College for violating various provisions of the General Rules and Regulations. They claim

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that certain provisions of the General Rules and Regulations are, on their face, and as applied to them, unconstitutional since they, assertedly, violate the First, Fifth, Eighth and Fourteenth Amendments to the Constitution of the United States of America by directly violating or imposing prior restraints, or infringing upon plaintiffs' rights to freedom of speech, association, peaceful assembly, petition the government for the redress of grievances, due process and equal protection of the laws. Plaintiffs further allege that several of the involved sections of the General Rules and Regulations are vague and overbroad and constitute an impairment of constitutionally protected conduct

PROCEDURAL BACKGROUND OF JURISDICTIONAL MATTERS

The defendants moved to dismiss the complaint on various procedural and substantive grounds. The author of this opinion, sitting as a single district judge, entered on May 24, 1972, a Memorandum Opinion, Marín v. University of Puerto Rico (D.C.P.R.1972), 346 F. Supp. 470, denying the motion to dismiss, and also convening the three-judge court, as prayed in the complaint.³

Defendants have raised jurisdictional and pseudo-jurisdictional arguments before the entire panel at the hearing held on July 25, 1972. The Court adopts the Memorandum Opinion of May 24, 1972, as its opinion on the jurisdictional and pseudo-jurisdictional aspects.

After arguments on the merits of the cause were heard and the case was under submission, defendants moved to dismiss for lack of jurisdiction under Title 42, United States Code, Section 1983, relying on the recent decision of District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973). The Court finds the motion without merit. It suffices to say that in Carter the Supreme Court simply held that the District of Columbia was neither a state nor a territory within the meaning of Section 1983, pointing out the unique ability of Congress to observe and supervise the activities of local officials at the seat of the national government. The Court therein carefully distinguished the District of Columbia as being sui generis "unlike either the States or Territories", 409 U.S. at 432, 93 S.Ct. at 610. It is clear to this Court that the rationale of affording a federal right in federal courts where local and distant officials might deny citizens their constitutional rights is as fully applicable to the Commonwealth of Puerto Rico as it is to the states of Virginia or California or to the Virgin Islands.

FACTUAL BACKGROUND

The activities of plaintiffs at the Arecibo Regional College in late 1971 led to three groups of charges, a hearing before the student-faculty Disciplinary Board, and their suspension for the calendar year 1972.

The first group arose from an incident occurring on November 16, 1971 when plaintiff Javier Meléndez, accompanied by plaintiff Ramon Bosque, entered

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the college library at noon and briefly addressed other students opposing the administration's conduct of a campus election and announcing his withdrawal as a candidate for the presidency of the Student Council. The following day both plaintiffs were summarily suspended until December 7, 1971, under Article 16 of the Regulations, for violations of Article 10A(1), (4), (6), (7) and Article 3C(2)(a). On December 3, this suspension was extended to February 4, 1972, because of plaintiffs having entered a conference room on December 2, 1971, where the dean of the college was meeting with members of the Student Council. Plaintiffs twice refused to leave the meeting on request of the dean but later left when the President of the Council explained the nature of the meeting. The extension of summary suspension was based on charges of violations of Article 10A(1), (4), and (6)

The second group of charges arose out of plaintiff Bosque's actions on November 29 and 30 in distributing leaflets to students and denouncing the election proceedings through a loudspeaker at the place of balloting. He was charged with violations of Article 10A(1), (4), (6), and (7). These charges, though not formally filed until December 17, were, however, also relied on in extending plaintiff Bosque's initial suspension.

Finally, on December 23, charges were filed against both plaintiffs for picketing the Administration Building on December 8, protesting their summary suspension. The picketing was non-violent and was held at lunch time in the street. Plaintiff Ramon Bosque used a loudspeaker, urging students to join the picket, and on one occasion used an epithet in referring to the Associate Dean. Both plaintiffs were charged with violations of Article 3C(2)(a) and (b) and Article 10A(1), (6), and (7). Plaintiff Bosque was also charged with a violation of Article 10A(4).

A full hearing, with counsel participating, was held by the Disciplinary Board on January 15, 1972, resulting in a report on January 18. The Board dismissed the first group of charges against plaintiff Ramon Bosque for the library incident, but found proven those against Javier Melendez, as it did the charges against both stemming from the conference room incident of December 2, 1971. As to the second group, plaintiff Ramon Bosque was found to have violated Article 10A(1), in taking part in a university activity, i. e., the election, while under suspension. All charges in the third group were found to have been proven. The dean, acting on these findings on January 21, 1972, thereupon suspended plaintiffs until December 31, 1972.

While this opinion was in preparation, the Court received a motion by the defendants to dismiss the action as moot on the ground that the suspensions were only to remain in force until December 31, 1972, and that they had expired by their own terms on that date. Even assuming that this means the defendants will not impose the suspension even if they are successful here, this contention is without merit. First, there exist possible collateral effects of the suspensions — both the stigma directly suffered and the consequences of the entry of the suspensions on the students' records. See Jones v. Snead, 431 F.2d 1115 (8th Cir. 1970); Esteban v. Central Missouri State College, 415 F.2d 1077 (8th Cir. 1969), cert. denied, 398 U.S. 965, 90 S.Ct. 2169, 26 L.Ed.2d 548 (1970) (decisions which rely on the holding of the United States Supreme Court in Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968)). See also Graham v. Knutzen, 351 F.Supp. 642 (D.Neb.1972). Second, the challenge by politically active students to regulations of the nature of those here involved is bound to be a matter of recurring controversy. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L. Ed.2d 147 (1973); Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Oil Workers Union v. Missouri, 361 U.S. 363, 80 S.Ct. 391, 4 L.Ed.2d 373

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(1960). For these reasons it also makes no difference that, as defendants' motion informs us, one of the plaintiffs has moved to another campus of the University

CONSTITUTIONAL CONSIDERATIONS

A. Preliminary Statement

No one can doubt that today students in institutions of higher education throughout the world are increasingly participating both in the political affairs of their societies and in the determination of the policies of their institutions. Many students have deep-felt views regarding the need for extensive restructuring of our society. This has produced massive student dissent, which has been manifested in street rallies and demonstrations as well as in participation in the normal elective and political processes.⁴

Students have taken their views of the problems in society to the institutions which they attend. There, too, extensive ferment has resulted, as students have pressed to assert and vindicate their rights to participate in the institution governing them. In Puerto Rico, students of the University have long requested full and adequate participation in the determination of the policies of that institution. After an arduous process, encompassing much unrest and turmoil,⁵ they have obtained, effective as of the next academic year (1973-74), representation in most of the policymaking organisms of the University.⁶

These rights...