Papish v. Board of Curators of University of Missouri

• Decision Date: 07 May 1971
• Docket Number: Civ. A. No. 1466.
• Parties: Barbara Susan PAPISH, Plaintiff, v. BOARD OF CURATORS OF the UNIVERSITY OF MISSOURI et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

331 F. Supp. 1321

Barbara Susan PAPISH, Plaintiff, v. BOARD OF CURATORS OF the UNIVERSITY OF MISSOURI et al., Defendants.

Civ. A. No. 1466.

United States District Court, W. D. Missouri, C. D.

May 7, 1971.

Irving Achtenberg, of Achtenberg, Sandler & Balkin, Kansas City, Mo., David N. Ellenhorn, of Kronish, Lieb, Shainswit, Weiner & Hellman, New York City, for plaintiff.

Melvin L. Wulf, Legal Director, New York City, for American Civil Liberties Union.

Jackson A. Wright, Gen. Counsel, Columbia, Mo., for defendants.

JUDGMENT DENYING PLAINTIFF DECLARATORY AND INJUNCTIVE RELIEF; JUDGMENT FOR DEFENDANTS

WILLIAM H. BECKER, Chief Judge.

Plaintiff, formerly a graduate student in journalism in the University of Missouri at Columbia, has brought this suit for declaratory and injunctive relief under Section 2201 of Title 28, United States Code, and Section 1983, Title 42, United States Code, as a result of her dismissal from the University of Missouri on a charge of participating in the distribution of indecent publications on and near the University campus. Plaintiff seeks a declaration of this Court that Article V of Sections A and B of the By-Laws of the Board of Curators of the University of Missouri, which relates to "indecent conduct or speech," is invalid on its face and as applied in violation of the First and Fourteenth Amendments to the United States Constitution. Plaintiff further requests injunctive relief permanently to restrain defendants "from interfering with plaintiff's right to remain at the University of Missouri-Columbia campus and to complete her education * * * and directing defendants to reinstate her as a graduate student"; permanently to restrain defendants "from interfering with plaintiff's constitutional right to disseminate literature protected by the First Amendment"; and to direct defendants "to take any and all steps necessary to grant plaintiff her full credit for course work successfully completed in the Spring Term of 1969." Plaintiff was enrolled as a non-resident graduate student in journalism when the acts occurred which led to her dismissal.

On September 22, 1969, a plenary evidentiary hearing de novo was held in this case on the motion for preliminary injunction in accordance with the uniform practice of this Court in student discipline cases.¹ By agreement, the case on the merits was also submitted on this record. Full opportunity for argument and filing of briefs was afforded. On January 5, 1970, before the next semester began, the parties were advised that a decision had been reached to deny the relief sought and that the time for filing postjudgment motions or to appeal would not begin to run until the formal findings of fact and conclusions of law were filed. Because of the pending possible review of the case of Esteban v. Central Missouri State College (C.A.8) 415 F.2d 1077,² in the Supreme Court of the United States, and of Soglin v. Kauffman (W.D.Wis.) 295 F.Supp. 978, disapproved in part in the Esteban case, supra, 415 F.2d at page 1099 (later affirmed in (C.A.7) 418 F.2d 163) and because of other relevant cases pending in the Supreme Court of the United States,³ the entry of final judgment in this case was stayed. Later, certiorari was denied in the Esteban case at 398 U.S. 965, 90 S.Ct. 2169, 26 L.Ed.2d 548. The Soglin case was not reviewed by the Supreme Court of the United States.

Plaintiff was dismissed from the University of Missouri at Columbia for her part in distributing, in and near the Memorial Tower,⁴ on February 19, 1969, Volume IV, No. 3, the February 1969 edition of the Free Press Underground. Plaintiff's accomplice Markham was distributing the publication on University property. Plaintiff was a 32 year old adult member of the staff of the Free Press Underground, a newspaper which had been published since 1965 by the Columbia Free Press Corporation, a non-profit corporation organized under the laws of Missouri, which disseminated news and opinions on University, local and world affairs. The February 1969 edition of Free Press Underground contained two features which the University deemed "indecent" within the terms of its by-laws: (1) the front cover duplicating a political cartoon which appeared in the February 1969 edition of The Movement, a liberal paper of national circulation and depicting policemen raping the Statue of Liberty and the Goddess of Justice; and (2) an article reprinted from New Left Notes concerning the acquittal of a young New Yorker after a trial for assault and battery by means of a dangerous weapon headlined "Mother_____ Acquitted." The word "Mother_____" had no relation to the news story discernible by an ordinary person. The plaintiff knowingly and intentionally participated in distributing the publication to provoke a confrontation with the authorities by pandering the publication with crude, puerile, vulgar obscenities. She admits in her affidavit in support of her motion for preliminary injunction that the cartoon is obscene, stating in part: "It is not vulgar; it is obscene." Earlier, on February 12, 1969, the Dean of Students had specifically directed that distribution of the same publication be discontinued because it violated University regulations against indecent literature. Plaintiff had been placed on disciplinary probation for distributing on University day an equally indecent issue of the same publication. She was also on academic probation for failure to submit portions of her thesis. This failure continued until the date of trial. As a result plaintiff is academically ineligible to continue as a student of the University.

On March 12, 1969, pursuant to Rule 5(c) of the University's rules of procedure in student disciplinary matters, plaintiff received notice of charges against her pending before the Student Conduct Committee, based on the above cited Article V of Sections A and B of the By-Laws, of conducting herself "in a manner not compatible with the University's functions and missions as an educational institution," in the following particulars:

"That, while you were on a status of disciplinary probation, you did distribute, or aid and assist in the distribution of the Volume IV, No. 3, February 1969 edition of the Free Press Underground containing forms of indecent speech, on the campus of the University of Missouri-Columbia, with knowledge that the Dean of Students had previously declared the forms of speech, therein appearing, indecent and distribution thereof improper on the University campus under existing rules and regulations."

A hearing was subsequently conducted before the Student Conduct Committee which concluded in the Committee's recommendation that plaintiff be dismissed from the University. The recommendation was adopted and affirmed by the Chancellor and the Board of Curators. In addition to being dismissed, plaintiff was denied credit for a course in ceramics which she successfully completed during the pendency of the intra-University appeals and disciplinary hearings. She was permitted to finish the semester for which she was enrolled.⁵

Student discipline cases of this type are cognizable in the federal district courts if the dismissal, suspension or other penalty imposed upon the student involves the violation of one or more of his or her federally protected rights under color of state law within the meaning of the Federal Civil Rights Act, Section 1983, Title 42, United States Code. See General Order on Student Discipline in Tax Supported Institutions of Higher Education (W.D.Mo.) 45 F.R.D. 133, 135. In this case, plaintiff does not raise any question that the procedures of notice and hearing leading to her dismissal failed to comply with minimal standards of due process. Further, it appears that plaintiff received fair notice of the charges and the hearing and an opportunity to be heard in a substantially fair disciplinary hearing, and that the findings of fact upon which the disciplinary action was based were supported by substantial evidence. See General Order, supra.

Based on the foregoing facts, it is concluded that judgment must be rendered for defendants in this cause for the separate and independent reasons that (1) plaintiff does not have a federally protected or other right to attend a state university of a state of which she is not a domiciled resident or citizen and (2) the conduct of plaintiff for which she was dismissed is not within First Amendment protections.

Plaintiff was not at any material time a citizen or domiciled resident of Missouri. In basing her claim on Section 1983, Title 42, United States Code, plaintiff asserts that she has been denied a civil right to attend the University of Missouri. It has long been held, however, that one state cannot be held responsible for the education of citizens of another state. In State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 350, 59 S.Ct. 232, 236, 83 L.Ed. 208, 213-214, it was said:

"Manifestly, the obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal right must be maintained. That obligation is imposed by the Constitution upon the States severally as governmental entities,—each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. The separate responsibility of each state within its own sphere is of the essence of statehood maintained under our dual system."

It is well settled that the Federal Civil Rights Act was intended to protect from denial under color of state law only those rights granted to citizens of the United States under the Fourteenth Amendment or laws of the United States. Adickes v. S. H. Kress and Company, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d...