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

• Court: U.S. District Court — District of Puerto Rico
• Writing for the Court: M. Martinez Umpierre, Arecibo, P. R., and Alberto Picó, San Juan, P. R., for defendants
• Citation: 346 F. Supp. 470
• Parties: Carmen Gloria MARIN, on behalf of Javier Meléndez; Ramon Bosque Lugo on behalf of Ramón Bosque Pérez, Plaintiffs, v. UNIVERSITY OF PUERTO RICO et al., Defendants.
• Docket Number: Civ. No. 137-72.
• Decision Date: 24 May 1972

346 F. Supp. 470

Carmen Gloria MARIN, on behalf of Javier Meléndez; Ramon Bosque Lugo on behalf of Ramón Bosque Pérez, Plaintiffs,
v.
UNIVERSITY OF PUERTO RICO et al., Defendants.

Civ. No. 137-72.

United States District Court, D. Puerto Rico.

May 24, 1972.

346 F. Supp. 471

COPYRIGHT MATERIAL OMITTED

346 F. Supp. 472

COPYRIGHT MATERIAL OMITTED

346 F. Supp. 473

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

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

MEMORANDUM OPINION

TOLEDO, District Judge.

This is an action filed pursuant to the Civil Rights Act, Title 42, United States Code, Sections 1981, 1983 et seq., seeking injunctive and declaratory relief. It seeks to enjoin the University of Puerto Rico and its officials from applying provisions of the General Student Regulations which regulate the conduct, plaintiffs allege, of over sixty thousand students, at four campuses and four regional colleges throughout Puerto Rico and which comprise all public state university students in this jurisdiction.

Plaintiffs represented by their parents and/or custodians, claim that the provisions of the student regulations¹

346 F. Supp. 474

are, on its face and as applied to them, unconstitutional since they violate the First, Fifth, Eighth and Fourteenth Amendments to the Constitution of the United States by directly violating or imposing prior restraints or infringing upon plaintiffs' rights to freedom of speech, association, peaceful assembly, the right to petition the government for the redress of grievances, due process and equal protection of the laws. It is further alleged that the sections of the General Student Regulations are vague and overbroad in such a way as to constitute an impairment of constitutionally protected conduct. Plaintiffs were full-time students of the Arecibo Regional College of the University of Puerto Rico until they were suspended for one year by the Dean and Director after an administrative hearing had taken place in which they had been represented by counsel. They also claim that this is a proper case for determination by statutory three-judge court, as prescribed by 28 United States Code, 2281 et seq., on the ground that the student regulations herein involved, being of statewide applicability, are in violation to the Constitution of the United States

Upon the verified complaint and affidavit of petitioners. Javier Meléndez and Ramón Bosque Pérez, this Court issued on February 9, 1972, an Order to Show Cause under which defendants, the Council of Superior Education, Amador Cobas and José Norberto Morales, were requested to appear on this Court and bring forward reasons on why plaintiffs' request should not be granted.

346 F. Supp. 475

Defendants filed a motion to dismiss the complaint alleging, in substance, that this Court did not have jurisdiction to entertain this action since plaintiffs had not exhausted the available administrative remedies, the case was not ripe for adjudication, the abstention doctrine was applicable in this case, there was no substantial constitutional claim to convene a three-judge court and that the regulations were not of statewide applicability, a three-judge court not being necessary.

During the hearing that took place to argue the motion to dismiss, defendants also expounded the fact that the Consejo de Educación Superior was not a juridical entity, not subjected to be sued. Plaintiffs were in accord to dismiss the complaint against the Consejo de Educación Superior. After the hearing, the parties were requested by the Court to submit memoranda sustaining their positions. Both parties have so done.

I. THE FACTS

The facts of the case as stated in plaintiffs' complaint are the following:

At noon, on November 16, 1971, plaintiff Javier Meléndez entered the reading room of the Regional College's library and very briefly addressed other students there present stating that he would withdraw his candidacy to the presidency of the Student Council since he understood the proceedings to be vitiated by the acts of the administrators in charge of the elections. Plaintiff Ramón Bosque and other students stood by him while he spoke. There is no other place at the Regional College where students habitually congregate. The following day, November 17, both plaintiffs were summarily suspended from the University until December 7, 1971 under section 16 of the Regulations for supposed violations of Article 10A(1), (4), (6), (7) and Article 3 C-2(a).

On December 2, 1971, both plaintiffs entered a conference room where defendant José Norberto Morales was meeting with several members of the Student Council. Plaintiffs had been informed by the President of the Student Council that the student members of the Board of Discipline would be elected at that meeting. Defendant José Norberto Morales refused to answer plaintiffs' questions as to the nature of the meeting and ordered them off the premises on the grounds that they had been summarily suspended from the University. Plaintiffs left the meeting when Pedro Salicrup, the President of the Student Council, informed them that it was an informal exchange of ideas at which no decision concerning the membership of the Board of Discipline would be taken. On December 3, 1971, because of the abovementioned acts the summary suspension of both plaintiffs was extended until February 4, 1972. This extension of summary suspension was based on charges of violations of Article 10A(1), (4) and (6) of the Regulation.

On December 8, 1971, plaintiffs participated together with other students in a picket to protest their summary suspension from the University. The picket was peaceful and orderly and was held at lunchtime on the public thoroughfare in front of the Administration Building of the Arecibo Regional College. Both plaintiffs addressed the public with a loudspeaker and refused to disband the meeting or surrender the loudspeaker to defendant Morales on the grounds that they were speaking at a public meeting on a public thoroughfare. Associate Dean Generoso Trigo asked to be allowed to use the loudspeaker to address the public, plaintiffs allowed him to do so and he spoke for several minutes. On December 23, 1971, plaintiffs were charged with violations 3 C2(a), 3 C2(b) and Article 10A(1) (4) (6) and (7).

On November 29 and 30, 1971, plaintiff Ramón Bosque distributed leaflets to fellow students on their way to vote, denouncing the elections as fraudulent. No disorder or violence was registered. Associate Dean Generoso Trigo was present on both occasions and did not advise plaintiff that his actions were deemed to interrupt the electoral process.

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Plaintiff was charged with violations of Article 10A(1), (4), (6) and (7). A hearing before the Board of Discipline was held on January 15, 1972, at which plaintiffs appeared with counsel. The Board entered its report January 18, 1972 and declared several of the charges to have been proved without stating the specific actions or words which were found to be disruptive or insulting

On January 21, 1972, defendant José Norberto Morales suspended both plaintiffs from the University until December 31, 1972.

II. EXHAUSTION OF STATE REMEDIES

As was expressed hereinbefore, this is an action filed under the Civil Rights Act of 1871, Title 42, United States Code, Section 1983. The purpose of the statute in question was manifold. Namely, to override certain kinds of state laws, to provide a remedy where state law was inadequate, to provide a Federal remedy where the state remedy, though adequate in theory, was not available in practice and, also, to provide a remedy in the Federal Courts supplementary to any remedy any state might have. Monroe v. Pape, 365 U.S. 167, 171 et seq., 81 S.Ct. 473, 5 L.Ed.2d 492.

On the other hand, and until recently, the accepted practice had been that a plaintiff complaining to a Federal Court of the violation of a constitutionally protected right by a state officer, must exhaust state administrative remedies although not judicial ones. See: Note, "Exhaustion of State Remedies under the Civil Rights Act", 68 Colum.L.Rev. 1201, 1206 (1968). However, recent Supreme and Federal Court decisions have been thought to cast serious doubt on the applicability of this important principle in cases brought under the Civil Rights Act. McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed. 2d 647 (1967); King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 Note 4 (1968); Houghton v. Shafer, 392 U.S 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968); Wilwording v. Swenson, 404 U. S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569, No. 70-5082, decision of the Supreme Court entered on April 3, 1972. See also, Eisen v. Eastman, 421 F.2d 560 (2 Cir. 1969); Moreno v. Henckel, 431 F.2d 1299 (5 Cir. 1970), Sostre v. McGinnis, 442 F.2d 178 (2 Cir. 1971); Hobbs v. Thompson, 448 F.2d 456 (5 Cir. 1971), and Vistamar, Inc. v. Vazquez, 337 F.Supp. 375 (D.C.P.R.1971).

In King v. Smith, supra, Alabama's stepfather rule, which denied AFDC payments to children if their mother cohabited with an able-bodied man, was challenged on the grounds that it violated the equal protection clause. Since appellees sought injunctive relief restraining defendants from the enforcement of a statewide regulation on the ground of its unconstitutionality, a three-judge court was convened by the district court. Appellants argued that the three-judge district court erroneously adjudicated the merits of the controversy without requiring appellees to exhaust administrative remedies. The Supreme Court dismissed this argument in a footnote citing Monroe v. Pape, supra; Damico v. California, supra, and McNeese v. Board of Education, supra. See 392 U.S. 309, at 312, 88 S.Ct. 2128. In doing...