Rasche v. Board of Trustees of University of Illinois

• Decision Date: 21 December 1972
• Docket Number: No. 71 C 2959.,71 C 2959.
• Parties: Jeanne RASCHE, Plaintiff, v. BOARD OF TRUSTEES OF the UNIVERSITY OF ILLINOIS et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

353 F. Supp. 973

Jeanne RASCHE, Plaintiff, v. BOARD OF TRUSTEES OF the UNIVERSITY OF ILLINOIS et al., Defendants.

No. 71 C 2959.

United States District Court, N. D. Illinois, E. D.

December 21, 1972.

George M. Covington, Donald L. Johnson, Ms. Chloe Arlan, Edward Parsons of A.C.L.U., Chicago, Ill., for plaintiff.

James T. Otis, James J. Costello, Richard F. Prendergast and Robert C. Keck, of Price, Cushman, Keck & Mahin, James R. Thompson, U. S. Atty., Chicago, Ill., for defendants.

Before KILEY, Circuit Judge, and WILL and McMILLEN, District Judges.

OPINION

WILL, District Judge.

Plaintiff seeks a declaration that section 504(a) of the Higher Education Act, as amended, 20 U.S.C. § 1060(a), is unconstitutional on its face and as applied to her, as well as an injunction restraining defendants and their agents from enforcing the statute against her. The section in question provides in pertinent part as follows:

(a) If an institution of higher education determines, after affording notice and opportunity for hearing to an individual attending, or employed by, such institution, that such individual has been convicted by any court of record of any crime which was committed after October 16, 1968, and which involved the use of (or assistance to others in the use of) force, disruption, or the seizure of property under control of any institution of higher education to prevent officials or students in such institution from engaging in their duties or pursuing their studies, and that such crime was of a serious nature and contributed to a substantial disruption of the administration of the institution with respect to which such crime was committed, then the institution which such individual attends, or is employed by, shall deny for a period of two years any further payment to, or for the direct benefit of, such individual under any of the programs specified in subsection (c) of this section. . . .

Plaintiff contends that the section is unconstitutionally vague and overbroad and exerts a chilling effect on freedom of speech, association and assembly. She asserts particularly that the standards of "crime . . . of a serious nature" and "substantial disruption of the administration of the institution" are so vague and overbroad as to be invalid.

The defendants have moved to dismiss the complaint on the ground that the statute is constitutionally valid. Since the complaint raises a substantial constitutional issue, a three-judge court has been convened pursuant to 28 U.S.C. § 2282 and has taken the defendants' motions under advisement on the parties' briefs. No further hearing has been requested or is necessary under 28 U.S.C. § 2284. The only issue in the case is the facial constitutionality of the statute in question. Since we find that section 1060(a) is facially unconstitutional, the defendants' motions to dismiss will be denied.

The facts as alleged in the complaint and which, for the purposes of the ruling on the defendants' motions to dismiss, we must accept as true and correct, are as follows:

Plaintiff was a graduate student in the Department of Philosophy at the Chicago Circle Campus of the University of Illinois during the 1970-1971 school year. She had been enabled to pursue her studies by virtue of having received a federal loan under the National Defense Education Act (20 U.S.C. §§ 421-429), since she had no independent means of support.

On May 6, 1970, plaintiff, along with approximately 1,500 other students, participated in a non-violent demonstration on the Chicago Circle Campus protesting the United States involvement in the war in Southeast Asia and the shootings at Kent State University and Jackson State University. The demonstration began elsewhere on the campus on May 6, 1970, but moved to the ROTC Building on Roosevelt Road at about noon in order to protest the existence of the ROTC program on campus. At that time, all personnel inside were told to leave by university officials "because there were demonstrations outside the building, demonstrators passing leaflets, etc." Several hours later, about 50 students, including plaintiff, entered the empty building and staged a peaceful "sit-in" demonstration in an unused part of the building, which lasted until their arrest at approximately 10:20 P.M. on May 6.

As a result of her participation in the "sit-in" demonstration, plaintiff was convicted of the offense of "Criminal Trespass to State Supported Land" (Ill. Rev.Stat. ch. 38, § 21-5 (1969), a misdemeanor, and was fined $20. On January 21, 1971, former Chancellor Norman A. Parker notified plaintiff that her "conviction . . ., if true, will disqualify . . . her from further assistance under the N.D.E.A. student loan program." Assistant Chancellor Robert P. Bentz was appointed hearing officer "to determine the truth of this charge against . . . her." Following a hearing conducted by University officials, the hearing officer issued findings of fact in which he found among other things that:

1. A demonstration of approximately 1500 persons began outside the ROTC Building located at 728 West Roosevelt Road, Chicago, Illinois, at approximately 1:00 P.M. on May 6, 1970.

2. The ROTC Building was closed by the administration for security reasons sometime before 2:00 P.M., despite the normal closing hour of 5:30 P.M., because of the activities of the demonstrators outside the building. (No finding was made as to the nature of these "activities.")

3. A "sit-in" occurred in the ROTC Building on the afternoon and evening of May 6, 1970, beginning at approximately 2:30 P.M., after the building had been closed and most of the personnel had left, and continuing until about 10:00 P.M.

4. As a result of the ROTC Building being closed, certain of the University placement and ROTC personnel could not perform their duties, thus causing a disruption of the activities of the University.

5. Miss Rasche freely and voluntarily participated in the demonstration outside the building and in the "sit-in" and, despite being ordered to leave the building by Deputy Chief of the University Police Arnum, remained in the building until arrested and removed about 10:00 P.M.

6. The misdemeanor of "Criminal Trespass to State Supported Land" is a "serious crime."

7. There was physical violence following the arrest of Miss Rasche and the other participants which would not have occurred but for the "sit-in" and the arrest of the participants.

8. Miss Rasche neither injured any person nor damaged any property before, during or after the "sit-in" nor did she instigate, encourage, aid or abet any such action by others.

9. Title 20 U.S.C. § 1060(a) is constitutional.

10. Miss Rasche should be declared ineligible under the provisions of 20 U.S.C. § 1060(c) for financial aid for a period of two years beginning December 17, 1970.

One principal deficiency of Section 1060(a) is its failure to adequately define a "crime of a serious nature." The use of that phrase as a condition of disqualification brings Section 1060(a) within the ambit of Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Speaking in that case of a "penal" statute, the court said at p. 391, 46 S.Ct. p. 127: "A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Although Section 1060(a) is not a penal statute, its effect is punitive and subjects it to the same test. Cf. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); Soglin v. Kauffman, 418 F.2d 163 (7 Cir. 1969).

The phrase "crime of a serious nature" does not have a generally understood meaning, is not one commonly used in the law or elsewhere, and can mean different things to different persons. A somewhat more precise phrase, "misdemeanor involving moral turpitude," was held unconstitutionally vague in Corporation of Haverford College v. Reeher, 329 F.Supp. 1196 (E.D.Pa. 1971). In short, the term "crime of a serious nature" is too susceptible of subjective interpretation to fairly advise in advance what in fact a student is forbidden to do. A student has a right to fair warning under the Fourteenth Amendment to our Constitution, and the failure to give this warning violates the First Amendment. See Giaccio v. Pennsylvania, 382 U.S. 399, 402-403, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966).

While the action of the hearing officer in the instant case in finding that the misdemeanor of which Miss Rasche was convicted and fined $20 was a "serious crime" does not necessarily prove the vagueness of the term, it demonstrates that one presumably intelligent individual, the Assistant Chancellor of the University, believed that a minor offense could properly be found to be a "serious crime." This pragmatic demonstration of the ambiguity of the phrase supports the conclusion that it is so susceptible of subjective interpretation as to be unconstitutionally vague.

The other standard of Section 1060(a) challenged by plaintiff is the requirement that the serious crime shall have "contributed to a substantial disruption of the administration of the institution." This provision has two criteria which are either vague, overbroad or both. The first is the requirement that the action which constituted the serious crime "contributed to" a substantial disruption. Must the causal relationship between the action and the disruption be direct and substantial or may it be remote and minute?

The instant case again demonstrates the potentialities of such vague language. Apparently, as the hearing officer found, the ROTC Building was closed by the administration at about 2:00 P.M. because there were demonstrators on the sidewalk outside. This caused the placement and ROTC personnel to terminate their work for the day. This action constituted the...