Smith v. University of Tennessee

• Decision Date: 18 April 1969
• Docket Number: Civ. A. No. 6557.
• Citation: 300 F. Supp. 777
• Parties: Jim SMITH et al. v. UNIVERSITY OF TENNESSEE et al.
• Court: U.S. District Court — Eastern District of Tennessee

300 F. Supp. 777

Jim SMITH et al. v. UNIVERSITY OF TENNESSEE et al.

Civ. A. No. 6557.

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

April 18, 1969.

Richard L. Hollow, Knoxville, Tenn., William M. Kunstler, Arthur Kinoy, New York City, Morton Stavis, Newark, N. J., Dennis J. Roberts, Harriet Van Tassel, Rita L. Murphy, William J. Bender, Newark, N. J., for plaintiffs.

H. H. McCampbell, Jr., Louis C. Woolf, Knoxville, Tenn., for defendants.

MEMORANDUM

ROBERT L. TAYLOR, Chief Judge.

Plaintiffs seek to enjoin officials of the University of Tennessee from enforcing rules which prohibit students from inviting as speakers for university sponsored programs persons who do not meet certain standards. Jurisdiction is based on Title 28 U.S.C. Sections 1331, 1343, 2201 and 2202, and Title 42 U.S.C. Sections 1981 and 1983.

Plaintiffs are primarily students and faculty of the defendant university who sue individually and on behalf of all those similarly situated under Rule 23 of the Federal Rules of Civil Procedure.

The University of Tennessee is a state owned and operated institution of higher learning. The defendant Buford Ellington is sued as the Chairman of the Board of Trustees, Governor of the State, and individually. Defendants A. D. Holt, Charles H. Weaver and Robert Gordon are respectively the President, Chancellor and Vice-Chancellor for Student Affairs of the University of Tennessee.

Throughout the period of the operative facts in this suit and until the present the University has had in force guidelines for student invitations to speakers. Those guidelines appear in the student handbook as follows:

A. Choice of Speaker

An invitation to a speaker who is to be sponsored by a student organization must be approved by the appropriate officers and faculty-alumni advisers to that organization and registered with and approved by the Dean of Students as meeting the following criteria:

(1) The speaker's competence and topic shall be relevant to the approved constitutional purpose of the organization;

(2) There is no reason to believe that the speaker intends to present a personal defense against alleged misconduct or crime which is being adjudicated in the courts;

(3) There is no reason to believe that he might speak in a libelous, scurrilous or defamatory manner or in violation of public laws which prohibit incitement to riot and conspiracy to overthrow the government by force.

* * * * * *

C. Appeal or Referral

In addition to the criteria in (A) above, the University Faculty Committee must consider the general question of whether the invitation and its timing are in the best interests of the University.

Issues is one of two officially sanctioned lecture series at the University of Tennessee. Unlike Man and his Environment, the other lecture series, Issues is presently composed solely of student members. Both Issues and Man and his Environment are financed through the Student Activities and Service Fee which is assessed quarterly upon all full-time university students to defray the cost of a long list of student activities and services. Issues operates on an annual budget of $12,000.00 and Man and his Environment on an annual budget of $9,000.00.

As one of the speakers for its fall quarter program Issues had selected Dick Gregory, the Negro civil rights activist who at the time of the invitation was a candidate for President of the United States. After the invitation was initially approved by the administrative officials as required by the handbook rules, the contract for Mr. Gregory's appearance was duly forwarded by Issues to defendant Gordon for execution by the appropriate financial officers of the University.

On or about September 10, 1968, officers of Issues were informed by Chancellor Weaver, in the presence of Gordon, that Mr. Gregory would not be permitted to appear on the University campus as a student invited speaker. Two days later, Chancellor Weaver issued a statement entitled "Freedom of Speech on the Campus" in which he said that the administration fully supported unhindered freedom of speech by faculty, students and speakers invited by the academic departments. He expressed the view that student speaker invitation programs constituted in effect a separate university of questionable educational benefit, and which created problems in maintaining the freedom of speech of the faculty.

The Issues program issued an invitation to Dr. Timothy Leary to speak on February 27, 1969 as a part of Winter Quarter Issues schedule. Leary is known primarily as an advocate of the use of the hallucinogenic drug LSD. On February 4, Chancellor Weaver announced that the University administration had refused finally to issue a contract for the appearance on campus of Dr. Leary.

During its October meeting the Board of Trustees adopted a resolution which directed the chancellors of the individual campuses of the university to develop speaker policies which must be submitted to and approved by the Trustees before becoming effective. At its February meeting, the Board set up a committee to recommend a new speakers policy for the consideration of the Board at its June gathering.

The Issues program has scheduled an appearance by Leary for May 6, 1969; but the Acting Vice Chancellor for Student Affairs has declined to approve the invitation. Plaintiffs allege present and future injury in the nature of a violation of their First and Fourteenth Amendment rights because of the refusal of the defendants to allow Gregory and Leary to speak. They contend that the policy as announced in the student handbook is unconstitutionally broad and vague. Temporary and permanent injunctive relief are sought and in addition a declaratory judgment that the current policy of the University is unconstitutional.

Before the Court may proceed to consider plaintiffs' request for injunctive and declaratory relief, the facts must establish that an actual case and controvery exists between parties with adverse legal interests. Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113, March 4, 1969. Basically the question is "whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826.

Although the invited speaker is not a plaintiff in this suit, the legal interests of the students who sought to invite Dr. Leary and who would have made up the audience are sufficient to present a substantial legal controversy with the persons whose actions barred the appearance. Snyder v. Board of Trustees of University of Illinois, D.C., 286 F.Supp. 927. See: Lamont v. Postmaster General of United States, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398.

The interests of plaintiffs are analogous to those of the National States Rights Party who were enjoined to assemble for speeches in the case of Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325. Since the plaintiffs are yet attempting to arrange a date for Dr. Leary to speak, the case does not involve the mootness which required dismissal in Golden v. Zwickler, supra.

This case involves the balancing of rights of students and teachers protected by the First and Fourteenth Amendments of the Federal Constitution and of the officials of the University of Tennessee to control and regulate public speaking on University property. If possible, the rights of the parties should be reconciled so as to avoid the destruction of the rights of either.

The First Amendment provides in pertinent part:

"Congress shall make no law * * * abridging the freedom of speech, * * * or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The right of freedom of speech is applicable to States under the Due Process Clause of the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138; De Jonge v. Oregon, 299 U.S. 353, 57 S. Ct. 255, 81 L.Ed. 278.

The First Amendment protection of free speech extends to listeners. Lamont v. Postmaster General, supra. On April 7, 1969, the Supreme Court wrote on the case of Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, as follows:

"It is now well established that the Constitution protects the right to receive information and ideas. `This freedom of speech and press * * * necessarily protects the right to receive * * *' (Citing cases) This right to receive information and ideas, regardless of their social worth, see Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840 (1948), is fundamental to our free society. * * *" 394 U.S. 557, 89 S.Ct. p. 1247.

Further, it has long been recognized that in carrying out their primary mission of education, state owned and operated schools may not disregard the constitutional rights of students. Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; West Virginia State Board of Education v. Barnette, 319 U. S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628; People of State of Ill. ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649.

It is conceded that the Board of Trustees and administrative officials of state supported universities have the right to enforce rules and regulations governing the appearance of guest speakers. No one has the absolute, unlimited right to speak on a university campus; however, when the university opens its doors to visiting speakers, it must follow constitutional principles if it seeks to regulate those whom recognized groups may invite. The fundamental question in this lawsuit is whether the applicable constitutional principles require that the university's regulations on student-invited speakers not be vague or broad. If such a duty rests upon the defendants, then the...