Merkey v. Board of Regents of State of Florida

• Decision Date: 11 July 1972
• Docket Number: Civ. A. No. 1598.
• Citation: 344 F. Supp. 1296
• Parties: Brett MERKEY and Young Socialist Alliance, an unincorporated association, Plaintiffs, v. The BOARD OF REGENTS OF the STATE OF FLORIDA, a body corp. of the State of Florida, et al.
• Court: U.S. District Court — Northern District of Florida

344 F. Supp. 1296

Brett MERKEY and Young Socialist Alliance, an unincorporated association, Plaintiffs, v. The BOARD OF REGENTS OF the STATE OF FLORIDA, a body corp. of the State of Florida, et al.

Civ. A. No. 1598.

United States District Court, N. D. Florida, Tallahassee Division.

July 11, 1972.

Michael F. Cycmanick, Law Offices of James M. Russ, Orlando, Fla., for plaintiffs.

Rivers Buford, Jr., Gen. Counsel, Stephen Marc Slepin, Herbert D. Sikes, Counsel, State of Fla. Bd. of Education, Robert D. Bickel, Tallahassee, Fla., for defendants.

MEMORANDUM-ORDER PRELIMINARY STATEMENT OF THE ACTION

MIDDLEBROOKS, District Judge.

On February 22, 1972, following dismissal of the original complaint for failure to state a claim upon which relief could be granted,¹ plaintiffs filed an amended complaint for declaratory and injunctive relief, seeking, inter alia, an order directing defendants to "issue the necessary permits, orders, or authorizations to secure the recognition of Young Socialist Alliance as a recognized and approved student organization at Florida State University to be treated on an equal basis with all the rights, privileges, opportunities and benefits which are provided to other campus organizations so recognized." Plaintiffs also maintained that this action should proceed as a class action as provided by Rule 23, Federal Rules of Civil Procedure.

Specifically, plaintiffs allege that the actions of defendants in denying recognition to plaintiff, Young Socialist Alliance, have denied plaintiffs certain First Amendment rights and rights of procedural due process and equal protection under the law. Plaintiffs further allege that all administrative and procedural steps were followed by them in connection with securing campus recognition for their political organization and that defendants acted arbitrarily and without procedural due process in denying campus recognition to the organization. In sum, plaintiffs complain that defendants exercised state authority to stifle activities protected by the First Amendment to the United States Constitution and that the state action taken is inconsistent with the guarantees of the First, Fifth and Fourteenth Amendments to the Constitution.

Defendants by answer denied the allegations that plaintiffs were deprived of any federal constitutional rights and further denied that plaintiffs had standing to bring this action to obtain recognition by and approval of defendants in order to function as a campus organization. It was also denied that any actions by defendants in denying recognition to plaintiffs were tainted by any constitutional infirmity.

As gleaned from the pleadings, stipulations and trial memoranda of the parties, the issues for determination in this proceeding may be stated as follows:

I

Whether the denial of campus recognition to plaintiff organization violated plaintiffs' rights of freedom of speech, expression and association as guaranteed under the United States Constitution.

II

Whether actions of defendants in denying campus recognition to plaintiff organization violated plaintiffs' Fourteenth Amendment rights by denying them equal application and benefit of the laws and regulations applicable to other persons and organizations seeking recognition on campuses in the state university system of the State of Florida and coerced plaintiffs into a conformity of political beliefs and associations that are prescribed and approved by defendants.

III

Whether there was a sufficient basis in fact for defendants' denial of campus recognition for the Young Socialist Alliance.

Having heard testimony, having received evidence, having considered pleadings, affidavits and pre-trial stipulations of the parties, and having judged the demeanor of witnesses testifying and having resolved the credibility choices to be made, this Court enters the following findings of fact and conclusions of law in conformity with Rule 52(a), Federal Rules of Civil Procedure:

FINDINGS OF FACT

(1) On or about March 3, 1970, plaintiff, Young Socialist Alliance, by and through plaintiff Merkey, applied to Florida State University for recognition as a campus organization. The policies of the State of Florida Board of Regents, published by the university in its student handbook, provide in Section 7.41 that "student organizations may be officially recognized by the university when approved by student governments or appropriate student-faculty committees on campus, provided that an officially recognized organization must not have as a purpose, either in name or in fact, the advocacy of the overthrow of the government by force or by other unlawful means." Pursuant to these regulations, application for recognition was made by plaintiff Merkey and one other applicant, Lieberman, on a form adopted by the University Office of Personnel Records, and specifying the name of the organization, date of application, officers of the organization, faculty consultant, basis of membership, classification of group (by professional, honorary, departmental, religious or other classification), local or national affiliation, purpose of the organization, activities for which the organization is responsible, means of financial support of the organization and date of organization.

(2) At the time application was made, plaintiff Merkey was not a student at the Florida State University but was serving on the staff of the university as an employee. The other named applicant, Lieberman, was at the time application was made, a student at the university but at present is no longer a student in good standing at the university. Presently, plaintiff organization is comprised of both students and non-students. None of the individual plaintiffs to this action are students at the Florida State University.

(3) The application for recognition was tentatively approved by the student senate and ultimately considered by the Florida State University Vice-President for Student Affairs. On March 6, 1970, D. Burke Kibler, III, then Chairman of defendant Board of Regents, issued a letter to the President of the University of Florida, a state university in the State of Florida university system, as is defendant Florida State University, concluding, on the basis of evidence possessed by Chairman Kibler, that the Young Socialist Alliance could not have the sanction of a state university in the State of Florida. The Florida State University Vice-President corresponded with defendant Board of Regents regarding the application of Chairman Kibler's letter relative to recognition of the Young Socialist Alliance, to other universities in the state university system, including the Florida State University. On March 27, 1970, in response to this inquiry, the university Vice-President was informed that the Kibler letter was intended to apply to all universities in the state university system and further that this conclusion was reached after considerable research and discussion with individuals aware of the Young Socialist Alliance's objectives. On the basis of this communication from the Board of Regents, the university Vice-President notified student government and the Young Socialist Alliance that the latter could not be recognized as a student organization at the Florida State University in light of the decision of the Board of Regents set forth in the aforementioned letters dated March 6, 1970, and March 27, 1970.

(4) At final hearing in this cause, defendant Kibler explained at length the reasons calling for the non-recognition of plaintiff Young Socialist Alliance as an approved campus organization. It was his testimony that he was familiar with the constitution of Young Socialist Alliance which characterized the organization as "revolutionary".² Put on notice as to the revolutionary aims of Young Socialist Alliance, this defendant elected to research the etymology of the word "revolutionary" to determine its import as used in the Young Socialist Alliance constitution. Referring to the Oxford English Dictionary defendant Kibler concluded that "implicit" in the term "revolutionary" was the idea of change or reform accomplished by or through the use of force.

Inclined toward this view defendant Kibler then embarked on a course of personal research which consisted of reading various agency reports on activities of Young Socialist Alliance, articles and periodicals published or circulated by Young Socialist Alliance and excerpts of documented studies made of Young Socialist Alliance activities.³ Defendant Kibler stated that his conclusions were based entirely upon personal research and study and that he did not hold any formal hearings to take testimony and receive evidence relative to the activities of Young Socialist Alliance; nor did he personally observe any Young Socialist Alliance activities on any university campuses which had caused disruption of legitimate educational processes.⁴

At trial defendant Kibler recalled several sources which led him to conclude that Young Socialist Alliance had as its aim and ultimate goal the violent overthrow of the government accomplished through disruptive means which necessarily included the use of force. A report by the Committee on Un-American Activities concluded that Young Socialist Alliance was involved in disturbances at the Berkeley and Watts riots. These disturbances were described in that source as caused in part by a "united front effort" consisting of numerous organizations of which Young Socialist Alliance was one. Another report which was contained in the Congressional Record and dated November 4, 1969, stated that the Student Mobilization Committee (S.M.C.) consisted heavily of Young Socialist Alliance members and concluded that S.M.C. aims were not intended to be that of "legitimate protest" but that of disrupting orderly governmental processes in line with the Marxist-Leninist communist philosophy. Another source, the "Boston Labor Forum" described the solidarity of Young...