Students Against Apartheid Coalition v. O'NEIL

• Decision Date: 15 May 1987
• Docket Number: Civ. A. No. 87-0126-R.
• Citation: 660 F. Supp. 333
• Court: U.S. District Court — Western District of Virginia
• Parties: STUDENTS AGAINST APARTHEID COALITION and National Lawyers' Guild, University of Virginia Chapter, Plaintiffs, v. Robert M. O'NEIL and the Rectors and Board of Visitors of the University of Virginia, Defendants.

660 F. Supp. 333

STUDENTS AGAINST APARTHEID COALITION and National Lawyers' Guild, University of Virginia Chapter, Plaintiffs, v. Robert M. O'NEIL and the Rectors and Board of Visitors of the University of Virginia, Defendants.

Civ. A. No. 87-0126-R.

United States District Court, W.D. Virginia, Roanoke Division.

May 15, 1987.

Steven D. Rosenfield, D. Brock Green, MacQueen, Rosenfield & Green, Charlottesville, Va., Terri E. Welch, Boyle & Bain, Charlottesville, Va., for plaintiffs.

Roger S. Martin, Associate Legal Advisor and Sp. Asst. Atty. Gen., Charlottesville, Va., for defendants.

MEMORANDUM OPINION

TURK, Chief Judge.

This case comes before the court on the plaintiffs' motion for a permanent injunction. At issue here are certain regulations of the University of Virginia¹ that the defendants are enforcing to prevent the plaintiffs from erecting symbolic "shanties" on certain areas of the University's campus. For the reasons set forth below the court has determined that the plaintiffs are entitled to relief.

BACKGROUND

At the root of this case are two historically significant American institutions — the First Amendment to the Constitution and the campus of the University of Virginia, Thomas Jefferson's architectural masterpiece. The plaintiffs are two groups of University of Virginia students who seek to protest the political and racial environment in South Africa and the University's economic investment in that country. The form of their protest is symbolic wooden shacks or shanties that they periodically erect in front of the Rotunda — the campus building in which the University Board of Visitors meets. They assert that the shanties are a form of symbolic speech that is absolutely protected by the First and Fourteenth amendments.

The defendants have continually attempted to prevent the students from erecting the shanties, though they have not otherwise attempted to prevent the students from registering their protest. They argue that the shanties are ugly and that they impair the physical attractiveness of the campus. The University asserts that the constitution permits them to restrict the time, place, and manner of the plaintiff's expressive behavior in order to maintain the architectural integrity and physical beauty of the campus.

The parties appeared before the court on April 20, 1987. At that time, they filed the following stipulation of facts which, pursuant to their request, the court relies on as the only evidence in the case:²

DEFINITIONS

1. The University of Virginia is an agency of the Commonwealth of Virginia, and a public educational institution created under the Commonwealth's laws.

2. The Board of Visitors is the governing body of the University of Virginia. Its members are appointed by the Governor of Virginia, and it in turn appoints the president of the University and is ultimately responsible for all University policy. It decides University policy regarding investments, including those in corporations doing business in the Republic of South Africa, which practices apartheid.

3. The Lawn is that portion of the central University grounds consisting of the complex of Jefferson-designed colonnades, pavilions, and Rotunda, and the open grassy area between them extending to a number of newer buildings at the south end, among them Cabell Hall.

The Jefferson-designed original grounds of the University, including the Lawn (including the Rotunda), gardens, and Ranges, have been designated a National Historic Landmark. A 1976 poll of architects by the American Institute of Architects rated these grounds "the proudest achievement of American architecture over the past 200 years." In early 1987, the National Park Service announced the nomination of the Lawn and two other sites as United States additions to the World Heritage list of "irreplaceable properties of outstanding international significance" (see Exhibit 1). That list presently includes thirteen United States sites, two of which are buildings. The Lawn is further described in Exhibits 2 through 5.

4. Divestment is the selling of securities or other holdings in corporations which manufacture, produce, operate, or otherwise do business in the Republic of South Africa. Divestment has been advocated by plaintiffs and many others across the United States as a means for investors to oppose the racist practices of the South African government, a regime whose power is arguably maintained in part by foreign investments. Divestment is the step plaintiffs believe the University of Virginia should immediately take with regard to its own investments.

5. Shanties are flimsy, shack-like wooden structures, approximately four feet deep, eight feet wide, and eight feet high, with or without walls, floors, or roof, and not fixed or fastened to the ground. Although large enough to hold several people, shanties are not built to serve as dwellings, but as symbolic and evocative lifesize representations, for illustrative, educative and persuasive purposes, of the dwellings of black South Africans in the ghettoes of apartheid.

PURPOSE OF PLAINTIFFS' SHANTY DEMONSTRATIONS

6. The plaintiffs' purpose in building the shanties is multifold:

a) to educate and inform the University of Virginia community as to the conditions of black South Africans under apartheid, and

b) to make physically explicit the contrast between those conditions and the conditions prevailing on one of America's most beautiful college campuses, because plaintiffs believe the pastoral setting of the University of Virginia grounds deadens public sensitivity to the privations of other peoples, and

c) to influence the hearts and minds of the members of the University of Virginia Board of Visitors, and attempt to persuade them of the moral force of the divestment position.

HISTORY OF THE PLAINTIFFS' SHANTY DEMONSTRATIONS

7. During the academic year 1985-86, plaintiffs twice conducted demonstrations on the grass of the Lawn in front of the Rotunda, urging the University to divest.

8. On the first occasion, on or about January 31, 1986, plaintiffs erected and caused to remain standing for a period of one to two days two shanties upon the grass of the lawn, within thirty feet of the steps of the Rotunda and facing that building, for the purpose of dramatizing the squalid living conditions of black South Africans and in order to make explicit the contrast between those conditions and the beauty of the Rotunda.

9. On the second occasion, on or about March 20, 1986, plaintiffs erected and caused to remain standing until about April 4, 1986 three to five such structures. At one point during the two weeks of the second demonstration, plaintiffs moved some or all of the shanties a short distance to avoid damage to the grass on which they stood. Students remained with the shanties at all times during the demonstrations, and left without physically damaging the Lawn, its grass, landscape or surrounding structures.

10. In or about April, 1986, shortly after the plaintiffs' second demonstration, the University's student-run internal disciplinary body, the Judiciary Committee, heard charges stemming from that second demonstration. The Judiciary Committee found the building of shanties on the Lawn not to have violated any existing University regulation. Within days after the Judiciary Committee decision, President O'Neil appointed a committee of faculty, administrators and selected students to create a University policy for the use of the Lawn. President O'Neil stated that the policy was being considered in response to the Judiciary Committee's finding that no University rule applied to the building of structures such as shanties on the Lawn. Structures not part of "official University functions," such as convocations, had not been erected on the Lawn within the ten-year period before the building of the shanties.

11. Based on the recommendations of this committee, contained in the "Final Report of the President's Ad Hoc Committee on the use of the Lawn," dated September 24, 1986 ("Final Report"), the President adopted and the Board of Visitors accepted as a permanent policy as of October 2, 1986, rules banning "any structure or extended presence" on the Lawn's upper terraces, bounded by the Rotunda, colonnade and lowermote terrace walkway, except for those connected with "official University functions."

(A copy of the Final Report, and exerpts from the minutes of the October 2, 1986 Board of Visitors meeting at which the Lawn policy was adopted, are attached hereto as Exhibits 6 and 7, respectively.) The Final Report summarizes certain uses and characteristics of the Lawn which the University seeks to protect by its Lawn use regulation.

12. On February 17, 1987, the day of a speech in the Rotunda by President O'Neil on the subject of constitutional freedom of expression, plaintiffs erected a single shanty on the upper portion of the Lawn, within thirty feet of the Rotunda, for the purpose of calling attention to the University's failure to divest, and in order to assert the free speech rights plaintiffs believed were jeopardized by the University's Lawn use policy. The University removed the shanty within one hour of its construction.

PHYSICAL SETTING OF PLAINTIFFS' DEMONSTRATIONS

13. The approximate dimensions of the Lawn are as follows:

                Colonnade to colonnade              190 feet
                Rotunda to highermost terrace
                 verge                              300 feet
                Rotunda to far end of colonnades    600 feet
                Rotunda to lowermost terrace
                walkway                             700 feet
                Rotunda to Cabell Hall              910 feet
                

14. Plaintiffs' intention in erecting the shanties is to have them, and the written protest message they bear, clearly and immediately visible to the unaided eye of the Board of Visitors from the time their quarterly meetings are scheduled to begin until the time of their final adjournment. Meetings of the Board of Visitors are customarily held in the Rotunda for two days each quarter

...