Molpus v. Fortune

• Decision Date: 31 March 1970
• Docket Number: No. WC 7010-S.,WC 7010-S.
• Citation: 311 F. Supp. 240
• Parties: David L. MOLPUS et al., Plaintiffs, v. Porter L. FORTUNE, Jr., et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

311 F. Supp. 240

David L. MOLPUS et al., Plaintiffs, v. Porter L. FORTUNE, Jr., et al., Defendants.

No. WC 7010-S.

United States District Court, N. D. Mississippi, W. D.

March 31, 1970.

Douglas C. Wynn and J. W. Watkins, III, Eugene M. Bogen, James L. Robertson, of Campbell, DeLong, Keady & Robertson, Greenville, Miss., for plaintiffs.

William A. Allain, Asst.Atty.Gen., of Miss. Ed. D. Noble, Jr., Sp. Asst.Atty. Gen., of Miss., James E. Rankin, Jackson, Miss., Will A. Hickman, Oxford, Miss., for defendants.

OPINION

ORMA R. SMITH, District Judge.

This action has been submitted to the Court on plaintiffs' motion for a temporary restraining order, or temporary or permanent injunction requiring the University of Mississippi to approve plaintiffs' request for permission to invite Tyrone Gettis, President of the Student Body of Mississippi Valley State College, Itta Bena, Mississippi, to speak on the University campus.

The Court afforded the parties a full and complete hearing on the issues involved in the case at the United States Courthouse, in Oxford, Mississippi, on Saturday, March 14, 1970. After the submission of briefs, counsel for the parties were heard in oral argument, at Oxford on Wednesday, March 25, 1970. The hearing was held upon notice to defendants and all interested parties. The parties were represented by counsel at the hearing. Under these circumstances the Court will consider the matter as an application for a preliminary injunction. Rule 65(a) Federal Rules of Civil Procedure.

In a consolidated action pending in this Court, Stacy v. Williams, No. WC 6725-K and Cupit v. Roberts, No. WC 6837-K, a three-judge District Court composed of Honorable William C. Keady, Chief Judge, United States District Court for the Northern District of Mississippi, Honorable James P. Coleman, Circuit Judge for the United States Court of Appeals for the Fifth Circuit, and Honorable Dan M. Russell, Jr., United States District Judge for the Southern District of Mississippi, promulgated rules concerning guest speakers at the various institutions of higher learning in the State of Mississippi. The University of Mississippi is one of the institutions covered by the rules.

The Court provided that the rules should remain effective until repealed by order of the Board of Trustees of the Institutions of Higher Learning of the State of Mississippi. The rules have not been repealed by the board and are now in force and control the acts of the parties in this case. The rules are set forth in an appendix attached to this opinion.¹

Plaintiffs Molpus, Cupit and Webb are members of the University of Mississippi Chapter of the Young Democratic Clubs of Mississippi.² Plaintiff Webb is President of UMYD.

Pursuant to the rules above mentioned, on March 4, 1970, UMYD presented to defendant Fortune, as Chancellor and acting head of the University, a request for permission to invite Tyrone Gettis to speak on the campus on March 18, 1970. The request complied in all respects with the rules adopted by the three-judge District Court. There is no controversy with regard to the sufficiency or timeliness of the request.

Chancellor Fortune, after considering the request, notified UMYD that he would not approve the request. This disapproval was entered the day the request was received.

The evidence at the hearing developed that Chancellor Fortune received a similar request from UMYD on February 19, 1970, for Mr. Gettis to speak on the campus on February 26, 1970. When Chancellor Fortune received the first request he investigated Mr. Gettis and came to the conclusion that his appearance, as a guest speaker on the campus, would constitute a clear and present danger to the institution's orderly operation, because of the likelihood that Mr. Gettis would advocate damage to, or destruction of the institution's buildings and other property, or seizure of the same; or would advocate forcible disruption or impairment of, or interference with the institution's regularly scheduled classes or other educational functions, or, would advocate campus disorder of a violent nature. Having reached this conclusion, Chancellor Fortune entered his disapproval of the request. The request was later withdrawn by UMYD.

When the second request was received, Chancellor Fortune was in the position to act upon the request and he immediately entered his disapproval thereof.

After receiving notice of the disapproval of their request UMYD moved promptly pursuant to paragraph 5 of the Rules, to obtain a review of the denial by the Campus Review Committee. The request for review was in the form of a letter addressed to Chancellor Fortune. The letter suggested a de novo hearing at which certain ground rules would be followed, whereby both sides might have adequate opportunity to be heard.³

The Campus Review Committee, after hearing the matter, voted four to one to disapprove the request. The Committee notified UMYD of its decision on March 7, 1970.

Plaintiffs filed their complaint as a class action with the District Court on March 9, 1970, seeking a temporary restraining order, or temporary or permanent injunction directing the University officials and the Board of Trustees to approve the request to invite Mr. Gettis to speak on the campus, and enjoining said parties from interfering with the speech or those persons who might assemble to hear Mr. Gettis. The plaintiffs also seek an injunction to restrain the defendants from further interference with the rights of the students at the University to assemble peaceably and to hear speeches made by speakers of their choice; provided suitable campus facilities are available for such purposes on the date that such assemblages may be scheduled; and provided reasonable notice of such assemblages shall be given administrative officials of the University in order that adequate security measures may be taken. The plaintiffs request that the Court establish procedural guidelines for the operation of the Campus Review Committee to insure that the rights of plaintiffs and others similarly situated to administrative due process shall be fully protected in all future proceedings of the Campus Review Committee.

At the hearing defendants moved the Court ore tenus to dismiss the action be cause of the absence of indispensable parties, members of the Campus Review Committee. This motion was overruled by the Court as it is clear from the rules adopted by the three-judge District Court that the members of the Campus Review Committee are not indispensable parties to the action. The rules, in paragraph (5), provide that a judicial review of the action of the Campus Review Committee may be had by the sponsoring group "upon application to any court of competent jurisdiction, state or federal, by presenting its verified petition setting forth the grounds of complaint and giving adequate notice of such filing to the head of the institution". Thus, the rules provide that the head of the institution is the only indispensable party to such a review. In the case sub judice Dr. Fortune, the head of the University, is one of the party defendants. The Court is convinced that the motion is not well taken, and his action in overruling the motion was proper.

The defendants also questioned the right of the Court to proceed with the hearing, in view of the pendency of the consolidated action, aforesaid. The three-judge District Court provided in its final decree "that the Court retain jurisdiction for the enforcement of this order and all matters relating thereto".

The issue before the Court at the hearing involved the propriety of the issuance of a preliminary injunction to require University officials to approve the appearance of Mr. Gettis on the campus to speak under the sponsorship of UMYD. For the purpose of the hearing defendants' motion was not well taken, and the motion was overruled. The rules above mentioned provide that "Any sponsoring organization aggrieved by the action of the Campus Review Committee in denying the request may obtain judicial review thereof upon application to any court of competent jurisdiction, state or federal, by presenting its verified petition setting forth the grounds of complaint". Paragraph (5). This provision evidenced the intention of the three-judge District Court that the Court would not retain jurisdiction of applications for review of Campus Review Committee actions.

There are some features of plaintiffs' action which appear to come within the retained jurisdiction of the three-judge District Court. The Court is of the opinion that this Court cannot undertake to amend the rules adopted by the three-judge District Court and establish procedural guidelines for the operation of the Campus Review Committee. Such action would come clearly within the jurisdiction retained by the three-judge District Court.

Neither is the Court authorized to enter an order prohibiting University officials from interference in the future with the rights of the students to assemble peaceably and to hear speakers of their choice, as is requested in the complaint. To assume jurisdiction of such an issue, would be tantamount to revoking the rules adopted by the three-judge District Court. The Court cannot entertain the consideration of such a matter.

The Court finds that the only matter which the Court can consider in the case sub judice is the propriety of the refusal of the University officials to permit UMYD to invite Mr. Gettis to speak on the campus, and allow the speech to be made under the sponsorship of UMYD.

The speech of Mr. Gettis was scheduled for March 18, 1970. It was shown at the hearing that another group of students were holding a meeting on the campus at that time which had overtones similar to those which might be created by the Gettis speech. Plaintiffs made it known to the Court at the first hearing herein that a later date could be arranged for the proposed speech, should it appear unwise to the Court for...