Swope v. Lubbers

• Decision Date: 07 April 1983
• Docket Number: No. G83-311 CA6.,G83-311 CA6.
• Parties: Timothy SWOPE, Michael Hartman, Diane Eskin, Michelle Gentile, and The Student Senate of Grand Valley State College, Plaintiffs, v. Arend LUBBERS, individually and in his official capacity of President of Grand Valley State College, Linda Johnson, individually and in her official capacity as Dean of the Students of Grand Valley State College, a public institution of higher education and the Board of Control of Grand Valley State College, a public corporate body, Defendants.
• Court: U.S. District Court — Western District of Michigan

560 F. Supp. 1328

Timothy SWOPE, Michael Hartman, Diane Eskin, Michelle Gentile, and The Student Senate of Grand Valley State College, Plaintiffs, v. Arend LUBBERS, individually and in his official capacity of President of Grand Valley State College, Linda Johnson, individually and in her official capacity as Dean of the Students of Grand Valley State College, a public institution of higher education and the Board of Control of Grand Valley State College, a public corporate body, Defendants.

No. G83-311 CA6.

United States District Court, W.D. Michigan, S.D.

April 7, 1983.

Kent W. Mudie, Ann Nowak, Gary Gershon, Grand Rapids, Mich., for plaintiffs.

Varnum, Riddering, Wierengo & Christenson by Dennis C. Kolenda and Teresa S. Decker, Grand Rapids, Mich., for defendants.

OPINION RE MOTION FOR INJUNCTIVE AND DECLARATORY RELIEF

HILLMAN, District Judge.

Presently before the court are plaintiffs' requests for declaratory and injunctive relief pursuant to Fed.R.Civ.P. 65. Plaintiffs allege that the rights secured them by the First Amendment, and their Fourteenth Amendment rights to due process of law have been violated, and accordingly bring suit under 42 U.S.C. § 1983. Jurisdiction is alleged under 28 U.S.C. §§ 1331 and 1343(3) and (4).

Plaintiffs are students at Grand Valley State College "Grand Valley", a publicly-funded state college,¹ and members of the Student Senate of the College. The defendants are, besides the College, members of Grand Valley's "Board of Control," Arend Lubbers, the President of the College, and Linda Johnson, Dean of Students.

The dispute arises out of the proposed showing of an "X"-rated film on the Grand Valley campus located near Grand Rapids. Each semester, at registration, Grand Valley students pay a "general service fee" of $15.00. This money is commingled with other college funds. Each year, the Grand Valley Student Senate is allocated $60,000 to be spent for extra-curricular student activities, such as the showing of motion pictures. A "Programming Committee" is formed by Student Senate members, and in the fall of 1982 it conducted a survey among Grand Valley students to assess interest in activities the Programming Committee could bring to campus. In the survey, ten categories of movies were listed (western, science fiction, etc.). The top three in order were "comedy," which received 179 votes; "adventure," 128 votes and "X-rated," 108 votes.

Typically, in the fall, a proposed schedule of films is presented by the Student Senate to the administration. Some time before a particular film is scheduled to be shown, a student on behalf of the Student Senate would write to Ms. Johnson or one of her assistants and request that funds be issued for the activity in question. Ms. Johnson or a staff member would then direct the college's Purchasing Department to issue a check to the vendor of the particular activity. The purchase order typically indicated that the money was spent on request of the Student Senate. If a film had been ordered, it was delivered to Ms. Johnson's office. Prior to February of 1983, no official guidelines had been adopted to guide defendant Johnson on what films she could or could not order.

In the fall of 1982, the Student Senate responded to the student interest reflected in the survey. Twenty-five films were selected. The schedule included only one X-rated film entitled "Inserts."² "Inserts" is a United Artists production starring Richard Dreyfus. Set in the 1930s, the film is about the crisis in the life of a man who had been a famous director of silent motion pictures. With the onset of "talkies" in the 1930s, the demand for silent films quickly evaporated. The film portrays how the director turned to the making of "pornographic" movies. The film was rated "X" on the scale of "suggested guidelines" promulgated by the Motion Picture Association of America.³ Plaintiffs were subsequently told by defendant Johnson, and one of her administrative assistants, that funds would not be transferred to allow the ordering of "Inserts."⁴

The College does not have a system in effect that ensures prompt judicial determination of the constitutional status of films requested for Student Senate activities.⁵

During the ensuing months, the issue of whether or not Grand Valley would allocate $250.00 for the rental of "Inserts" was much debated between plaintiffs and defendants. Plaintiffs repeatedly requested that defendants put their views about "Inserts" in writing, and sought the transfer of funds for "Inserts" again on or about February 14, 1983.⁶ The transfer request was again denied. In late February, the Grand Valley Board of Control passed a resolution tacitly addressing the showing of "Inserts." The Board resolved that, while the College would not "ban" the showing of "X"-rated films on campus, "no institutional funds of this College shall be used by student organizations for the acquisition of X-rated films.... The Administration is directed to review and authorize the expenditure of institutional funds in accordance with this policy."⁷

Plaintiffs state that April 22 is the last possible date on which "Inserts" may be shown this school year. In order to obtain the film in time for the April 22 screening, the rental order must be placed by April 8th. To meet this deadline, plaintiffs filed suit on March 28th, requesting that defendants be enjoined from "refusing to allow" the transfer of funds sufficient to order "Inserts," and from otherwise interfering with the ordering or showing of the film.

Oral argument was heard by the court on April 4, 1983. The matter has been extensively and ably briefed by counsel.

DISCUSSION

To be entitled to preliminary injunctive relief, plaintiffs must meet the well-established standards of Mason County Medical Ass'n v. Knebel, 563 F.2d 256 (6th Cir.1977), and Roth v. Bank of Commonwealth, 583 F.2d 527 (6th Cir.1978), cert. dismissed, 442 U.S. 925, 99 S.Ct. 2852, 61 L.Ed.2d 292 (1979), to-wit:

"1) Whether the plaintiffs have shown a strong or substantial likelihood or probability of success on the merits;

2) Whether the plaintiffs have shown irreparable injury;

3) Whether the issuance of a preliminary injunction would cause substantial harm to others;

4) Whether the public interest would be served by issuing a preliminary injunction."

The element of "probability of success" is a key issue in this case. Determining whether plaintiffs will probably succeed with the merits of their claim in turn is controlled to a large extent by the characterization of this dispute. Defendants argue that this is only a "funding" case, and that, as such, it involves no First Amendment rights. The sole issue, in defendants' view, is whether the Student Senate has the authority to require Grand Valley administrators to disburse funds when the administration has elected not to.

Plaintiffs characterize the dispute very differently. At issue here, they claim, is whether the First and Fourteenth Amendment rights of Grand Valley students should continue to be violated by College administrators. They argue that the practice of selectively disbursing funds set aside for extracurricular student entertainment constitutes a prior restraint that does not pass constitutional muster.

In support of the argument that this is a "funding" case, defendants would analogize the instant dispute to the so-called abortion cases: Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977); Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980); and Poelker v. Doe, 432 U.S. 519, 97 S.Ct. 2391, 53 L.Ed.2d 528 (1977). In each case, plaintiffs unsuccessfully contested whether a state entity could, in effect, refuse to fund plaintiffs' decisions to abort a pregnancy. Defendants stress that the right to have an abortion is constitutionally guaranteed after Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Here, they argue, the College has made a decision similar to that made by the government authorities in Roe, Harris, and Poelker: e.g., a decision against funding an activity determined by the authorities to be against the best interests of the institution and those affiliated with it.

If in fact the instant case is a "funding" case like Roe and Poelker, the conduct of the defendants would meet constitutional requirements if it is "rationally" based. In Harris and Maher, the Supreme Court held that the governmental decision against funding abortions would be invalidated only if it rested on grounds "wholly irrelevant" to the achievement of a "legitimate" governmental objective. 448 U.S. at 322, 100 S.Ct. at 2691.

Defendants advance several reasons to establish a rational basis for their decision not to fund the showing of "Inserts." Initially, they argue that if they do not fund the rental of "X"-rated films such as "Inserts," they will better fulfill their responsibilities of maintaining the "quality" of campus activities. This is because defendants have concluded that movies with such a rating, as a group, generally do not meet their standards of the "quality" of activity they want promoted on the Grand Valley campus. Additionally, they note that using the Motion Picture Rating of a film as the criterion for funding is "rational" because it serves the administration's legitimate interest of saving time and effort over funding decisions, and it also benefits the students because the funding decision is not based on the subjective determination of a campus official.

Whether the defendants' decision to withhold funds from "X"-rated films is "rationally" based is not an issue here. This is because I find that the cases relied upon by defendants are inapposite. True, funds are at issue in this dispute, but that does not make this a "funding" case. To regard this dispute as a "funding" case would entail ignoring a large body of precedential case law erected to safeguard the First Amendment rights of persons such as these plaintiffs.

A...