Prostrollo v. University of South Dakota, CIV 73-4063.

• Decision Date: 21 January 1974
• Docket Number: No. CIV 73-4063.,CIV 73-4063.
• Citation: 369 F. Supp. 778
• Parties: Gail PROSTROLLO and Lynn Severson for themselves and in behalf of all others similarly situated, Plaintiffs, v. The UNIVERSITY OF SOUTH DAKOTA et al., Defendants.
• Court: U.S. District Court — District of South Dakota

369 F. Supp. 778

Gail PROSTROLLO and Lynn Severson for themselves and in behalf of all others similarly situated, Plaintiffs, v. The UNIVERSITY OF SOUTH DAKOTA et al., Defendants.

No. CIV 73-4063.

United States District Court, D. South Dakota, S. D.

January 21, 1974.

Michael B. Crew, Vermillion, S. D., for the plaintiffs.

Carleton R. Hoy, Davenport, Evans, Hurwitz & Smith, Sioux Falls, S. D., for the defendants.

MEMORANDUM DECISION

NICHOL, Chief Judge.

Plaintiffs, and the class they represent, are students at The University of South Dakota, a four year, co-educational institution located at Vermillion, South Dakota, and under the general supervision and control of the South Dakota Board of Regents. Plaintiffs seek to have declared unconstitutional and to enjoin enforcement of the University of South Dakota Housing Regulation which requires, with certain exceptions, that all single freshman and sophomore undergraduate students live in University residence halls. It is claimed that this regulation denies plaintiffs 1) their right of personal privacy without due process of law, 2) the equal protection of the laws, and 3) their right to be secure in their persons, house, papers and effects against unreasonable searches and seizures.

This action arises under 42 U.S. C. Sec. 1983. Federal jurisdiction is grounded upon 28 U.S.C. Sec. 1343. Plaintiffs action for declaratory relief is authorized by 28 U.S.C. 2201 and 2202.¹

Based upon the following discussion, this Court concludes that the contested housing regulation, as applied and implemented at the University of South Dakota, establishes an unreasonable and arbitrary classification, having little or no relation to the objective sought to be accomplished by the regulation, and thereby denies plaintiffs and members of their class the equal protection of the laws under the Fourteenth Amendment to the Constitution.

Findings of Fact

The primary factual conclusion drawn from the evidence is that the purpose behind the regulation is financial; that is, the object which the regulation seeks to promote is the retirement of bond indebtedness incurred in constructing the dormitories. Assertions to the contrary, made specifically by University President Richard Bowen in his affidavit and deposition, that the purpose behind the regulation is educational strikes the Court as a mere afterthought, asserted because of previous legal decisions and unsupported by any concrete evidence in the record.

It is obvious from the evidence presented that the concern of the Board of Regents is financial. Quoting from the deposition of Dr. Richard Gibb, South Dakota Commissioner of Higher Education:

The Board of Regents sells bonds to finance the construction of dormitories. Each president is expected to take whatever steps are necessary to see to it the bond indebtedness is paid off. The Board does not have an overall policy for all campuses. They have a policy that says indebtedness must be repaid. p. 4

Similar statements are found throughout Dr. Gibb's deposition. Commissioner Gibb also stated that a resolution passed by the Board of Regents in 1964 was typical of resolutions passed with construction of each new dormitory project. Deposition, p. 9. That resolution provides, in part:

3. That to the extent any surplus space or facilities shall ever become available in the said Project and related facilities while any of the Bonds remain outstanding and unpaid, it shall be the duty of the officers of University of South Dakota to enforce a rule requiring occupancy and use, to the extent practicable, of said project and related facilities by students attending University of South Dakota and this provision shall be considered as a rule for guidance of said officers.

Legislative authorization for the Regents to establish parietals can be found in S.D.C.L. 13-51A-38, adopted in 1971 and stating:

Parietal rules. — In connection with the issuance of any bonds under this chapter, and in order to secure the payment of any such bonds and the interest thereon, the board shall have the power for each such institution to make and enforce and agree to make and enforce parietal rules that shall ensure the use of any project to the maximum extent to which such project is capable of serving students, staff members and others using or being served by, or having the right to use or the right to be served by, or to operate, any project.

That the above section is found in the Compiled Laws Chapter entitled "Board of Regents Revenue Bonds" is further indication of the source and purpose of the parietal regulation in question. University Business Manager, Roy J. Tiede, reinforces the conclusion of financial purpose behind the regulation by statements made in his affidavit to the effect that the Board of Regents has agreed to enforce rules and regulations that will assure maximum dorm occupancy so long as any bonds are outstanding or unpaid.

This Court recognizes there are valid educational objectives behind the construction of dormitories. By providing housing so that more students can attend the University than if such housing were not available, the University can increase its enrollment and its resources, and consequently offer better educational facilities and opportunities to its students, thereby fulfilling its purpose of

providing the best and most efficient means of imparting to young men and women on equal terms a liberal education . . . S.D.C.L. 13-57-2.

While the objective behind dorm construction may be educational, the objective behind the regulation requiring freshmen and sophomores to reside in dormitories is to retire bond indebtedness and it is unreasonable and arbitrary to make only some students pay for a benefit received by all students.

President Bowen states in his affidavit that

it is the responsibility of a state institution of higher education to provide on-campus dining and housing facilities and related activities to broaden and enrich the life of the individual student; that the involvement of a student in this kind of relationship will enhance his formal education by promoting personal and social development in connection with his academic progress.

Certainly, as I discussed above, the construction of housing facilities produces certain educational benefits, but there is no concrete evidence in the existing record, which is decidedly threadbare, that the experience of dorm living either "broadens and enriches" a student's life, or that it enhances his formal education in the area of personal and social development. On the contrary, the only specific examples given of opportunities available to dorm students, that is, counseling, forums, and intramural sports, are also available to non-dormitory students. See deposition of Aaron L. Schnell, Director of Resident Services, p. 42-46. And, in fact, when asked by deposition what advice he relied on to come to the conclusion stated in his affidavit, President Bowen answered "My own, my own feelings, my own sensitivities toward the matter, people around me." Such a statement is unconvincing in view of the lack of any supportive evidence such as studies or other data demonstrating any educational objective accomplished by the regulation, and in view of the substantial evidence portraying the regulation as a financial guarantee for paying off the bonds.

A review of past housing regulations submitted as...