UNIVERSITY OF SO. MISS., MCLU v. University of So. Miss.

• Decision Date: 16 December 1971
• Docket Number: No. 71-1801 Summary Calendar.,71-1801 Summary Calendar.
• Citation: 452 F.2d 564
• Parties: UNIVERSITY OF SOUTHERN MISSISSIPPI CHAPTER OF THE MISSISSIPPI CIVIL LIBERTIES UNION et al., Plaintiffs-Appellants, v. UNIVERSITY OF SOUTHERN MISSISSIPPI et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

452 F.2d 564 (1971)

UNIVERSITY OF SOUTHERN MISSISSIPPI CHAPTER OF THE MISSISSIPPI CIVIL LIBERTIES UNION et al., Plaintiffs-Appellants, v. UNIVERSITY OF SOUTHERN MISSISSIPPI et al., Defendants-Appellees.

No. 71-1801 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

November 18, 1971.

Rehearing and Rehearing Denied December 16, 1971.

Roy S. Haber, Jackson, Miss., Marvin M. Karpatkin, Joel M. Gora, New York City, Frank R. Parker, c/o Lawyers Committee For Civil Rights Under Law, Jackson, Miss., for plaintiffs-appellants; Melvin L. Wulf, New York City, of counsel.

James E. Rankin, Ed Davis Noble, Jr., Asst. Attys. Gen., Jackson, Miss., A. F. Summer, Atty. Gen., William A. Allain, Asst. Atty. Gen., Jackson, Miss., for defendants-appellees.

Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied December 16, 1971.

WISDOM, Circuit Judge:

Twice this Court has been a harbinger of major expansions in the First Amendment rights of students. In Dixon v. Alabama State Board of Education, 5 Cir. 1961, 294 F.2d 150, we turned our backs on the old saw that attendance at a university was a privilege granted by the state and was therefore subject to whatever conditions the state sought to impose. Five years later, we said that students' rights to free expression cannot be curtailed unless that expression "materially and substantially interferes with the requirements of appropriate discipline in the operation of the school." Burnside v. Byars, 5 Cir. 1966, 363 F.2d 744, 749. The Supreme Court adopted this phrase in the landmark case of Tinker v. Des Moines Independent Community School District, 1969, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731.

Today's decision requires us to break no new ground. During the summer of 1970, the plaintiff, the University of Southern Mississippi Chapter of the Mississippi Civil Liberties Union was denied official recognition as a student organization in accordance with the usual procedures provided by the University of Southern Mississippi for processing proposed charters of student organizations.¹ This denial meant that the Chapter could neither participate in University-approved student activities nor conduct student activities on campus on its own initiative. Thus exiled, the Chapter filed suit in federal district court for a preliminary injunction to compel the University to approve its charter and grant it official recognition.

The district court found that the Chapter had requested and been denied a statement of reasons for the University's denial of its charter application, and held that the Chapter was entitled to such a statement. In addition, the district court considered each of the grounds which had been asserted by the University during the court proceedings to justify denial of a charter. The only ground which seemed to the district court to provide a possible basis for keeping the Chapter off campus was its litigious orientation.² This, said the district court, was not alone enough to justify the denial; but the court took the view that the university need not condone "frivolous, vexatious, and harassing actions to impede the legitimate function of a university." It therefore refused to order approval of the plaintiffs' charter. Instead, it simply provided plaintiffs with a new chance to apply for recognition, and, implicitly, the University with a new chance to adduce support for its assertion that the Chapter's activities would interfere with the operation of the University.³

It is no longer a serious contention that "either students or teachers shed their constitutional rights to freedom of speech or expression at the school-house gate." Tinker, supra, at 393 U.S. 506, 89 S.Ct. 736, 21 L.Ed.2d 737. Student rights of free expression may be prohibited only if they "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." Tinker at 393 U.S. 509, 89 S.Ct. 738, 21 L.Ed.2d 739, citing Burnside v. Byars, 5 Cir. 1966, 363 F.2d 744, 749. When the restriction upon student expression takes the form of an attempt to predict in advance the content and consequences of that expression, it is tantamount to a prior restraint and carries a heavy presumption against its constitutionality. See Bantam Books, Inc. v. Sullivan, 1963, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584; Organization for a Better Austin v. Keefe, 1971, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1. What is at issue here is whether the students affiliated with the Chapter will be permitted to use the buildings and grounds of the campus to conduct meetings and discussions. The restriction imposed by the University is analogous to one attempting to prevent a particular group or individual from speaking on school premises. Such "speaker bans" uniformly have been struck down. E. g., Brooks v. Auburn University, 296 F.Supp. 188 (M.D.Ala. 1969); see Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027, 1050-51 (1969). The rationale of the speaker ban decisions is that it is plainly incompatible with our constitutional system for a state-supported institution to permit some speakers but turn others away "according to the orthodoxy or popularity of their political or social views." Brooks v. Auburn University, 296 F. Supp. at 194. To sustain such censorial practices, a University would at the very least have to demonstrate a strong probability of the kind of material disruption spoken of in the Tinker case.

The district court found only that the litigiousness of the national and state Civil Liberties Unions was a "barely tenable ground for denying the charter to the USM Chapter". Serious, bona fide litigation carried on by a minority group as a peaceful means of guaranteeing its rights in a larger community is a form of expression and association protected by the First and Fourteenth Amendments. NAACP v. Button, 1963, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405. As such, it cannot serve as a justification for keeping the Civil Liberties Union off the campus of the University unless the litigation itself would result in the kind of disruption spelled out in Tinker.

Only litigation conducted in bad faith could fill that bill. The lower court expressed the thought that if the Student Activity Committee were to make a new investigation, the Committee might turn up some support for the assertion that the Chapter's litigation would be vexatious and frivolous. This bare possibility, unsupported by any evidence in this record, does not justify a drastic curtailment of constitutionally favored expression. The assertion of novel and sometimes threatening positions through recourse to litigation might all too easily be characterized as vexatious or harassing by the individuals so threatened or surprised—and in perfectly good faith.

But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority\'s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

Tinker at 393 U.S. 508-509, 89 S.Ct. 737, 738, 21 L.Ed.2d 739. We think it far more compatible with free expression to relegate the University to its rights if the litigative activities of the Chapter should turn out to be carried on with disruptive intentions and do result in substantial disruption to the life of the University. In that event, the recognition granted the Chapter could be challenged and withdrawn in a fair proceeding based upon evidence of actual, and not vaguely predictive, misconduct.

The University has cited us to a...