Wood v. Davison

• Decision Date: 07 December 1972
• Docket Number: Civ. A. No. 17396.
• Citation: 351 F. Supp. 543
• Parties: Roy WOOD et al., Plaintiffs, v. Frederick Corbet DAVISON, Individually and as President of the University of Georgia, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

351 F. Supp. 543

Roy WOOD et al., Plaintiffs, v. Frederick Corbet DAVISON, Individually and as President of the University of Georgia, et al., Defendants.

Civ. A. No. 17396.

United States District Court, N. D. Georgia, Atlanta Division.

December 7, 1972.

Sandy McCormack, Lowry, Henritze & McCormack, Athens, Ga., for plaintiffs.

Arthur K. Bolton, Atty. Gen., H. Andrew Owen, Jr., Asst. Atty. Gen., Atlanta, Ga., for defendants.

SIDNEY O. SMITH, Jr., Chief Judge.

I.

This action was brought following denial of use of University of Georgia facilities for a conference and dance to be sponsored by the Committee on Gay Education.¹ Plaintiffs are students at the University of Georgia and members of the Committee on Gay Education, a homosexual group whose purpose is to provide information about homosexuality. The Defendants are various administrative officials of the University of Georgia, a state-supported educational institution, and members of the Board of Regents of the University System of Georgia. The conference and dance for which facilities were denied were scheduled for November 11, 1972, the complaint and motion for a Temporary Restraining Order were filed on November 9, 1972, and a hearing was held on November 10, 1972. By agreement of the parties, the hearing was made a final hearing on the merits under Fed.R.Civ. P. 65 and an Order was issued restraining the denial of facilities. This opinion will provide final disposition of the cause.²

The Committee was formed in the school year of 1971-72 and sought recognition as a student organization under then existing procedures that required University "approval" of organizations. On May 10, 1972, the Committee, while still seeking recognition, sought and secured a Temporary Restraining Order from the Superior Court of Clarke County to allow a dance scheduled for that date. During the summer other social events were held by the Committee, all passing without incident.

When school opened this fall, University officials instituted a new student organization scheme calling for "registration"³ rather than the previous "recognition" framework, the Committee duly registered, and on September 28, 1972, began scheduling activities for the Fall Quarter. They requested facilities, which the University makes available on a "priority" basis to registered student organizations,⁴ for a regional conference to organize a Southeastern homosexual organization and dance. Nearly a month later campus officials denied the request for the conference and dance in a letter dated October 23, 1972, set forth fully in the margin.⁵ Plaintiffs exhausted their administrative remedies by appeal to the Board of Regents, who refused on November 8, 1972, to reverse the decision of the University officials.⁶

II.

Plaintiffs contend that the Defendants' denial of University facilities is an infringement on their first amendment rights of freedom of speech, assembly and association. The court agrees.

Although University administrators once had an almost unrestricted power to deal with students under the theory of in loco parentis, it is now clear that constitutional restraints on authority apply on campuses of state supported eductional institutions with fully as much sanction as public streets and in public parks. Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961); Wright, The Constitution on the Campus, 22 Vanderbilt L.Rev. 1027 (1969).

In Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) the Supreme Court dealt explicitly with this concept stating that it "can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school house gate." Id. at 506, 89 S.Ct. at 736. In addition to protection of "pure" and "symbolic" speech the first amendment protects rights of assembly, De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937) and association, NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L. Ed.2d 1488 (1958); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed. 2d 796 (1957).

It is in this context that the right of a student organization to be recognized or to have access to University facilities should be considered. Based upon the first amendment, courts have required officials of institutions of higher education to recognize certain student organizations. University of Southern Mississippi Chapter of MCLU v. University of Southern Mississippi, 452 F.2d 564 (5th Cir. 1971); ACLU of Virginia, Inc. v. Radford College, 315 F.Supp. 893 (W.D.Va.1970); and Associated Students of Sacramento State College v. Butz, Civil No. 200795 (Super.Ct. Sacramento, California, February 15, 1971). (Recognition of homosexual organization.)

The Supreme Court has recently addressed the question of student organizations and their right to exist on a college campus. Healey v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). In this case the University of Connecticut had denied recognition to a local chapter of the Students for a Democratic Society (SDS). The court found that denial of University recognition affected first amendment rights of the SDS members and held that recognition could be denied only under narrowly limited circumstances.

The issue in Healey was recognition whereas the issue in the present case is access to University facilities. However, this distinction does not diminish the applicability and import of Healey to the case at bar. The Court there determined that denial of facilities was the primary means by which the organization members' freedom of expression was infringed as evidenced in the following statement:

"The primary impediment to free association flowing from nonrecognition is the denial of use of campus facilities for meetings and other appropriate purposes." Id. at 189, 92 S.Ct. at 2346.

At this juncture it should be clearly understood that this ruling is not designed to and it should not be interpreted as limiting the University's control over its campus and facilities. A college or university has the right to adopt and enforce reasonable, non-discriminatory rules and regulations governing the utilization of its facilities. Bayless v. Martine, 430 F.2d 873 (5th Cir. 1970); Esteban v. Central Missouri State College, 415 F.2d 1077 at 1089 (8th Cir. 1969) cert. den. 398 U.S. 965, 90 S.Ct. 2169, 26 L.Ed.2d 548. The control exercised by the administrative officials, though, must conform to the Constitution and laws of the United States. Such conformity dictates equal application of reasonable and unambiguous regulations.⁷

Thus, the issue presented to this Court is upon what grounds may University officials base a denial of University facilities to an organization which has complied with all the applicable University regulations.

This Court has been able to glean from the cases only three circumstances under which university facilities may be denied to a registered campus organization: (1) refusal to abide by reasonable regulations, (2) a demonstrated danger of violence or disruption at the meeting, and (3) that the meeting itself would violate either state or federal law. See Blasi, Prior Restraints on Demonstrations, 68 Mich.L.Rev. 1482 (1970).

(1) The first basis for withholding facilities was enunciated in Healey. The Supreme Court determined that a university may impose certain "reasonable standards respecting conduct" on an organization's activities, and recognition could be denied if that organization refused to abide by such standards. Healey, 408 U.S. at 193, 92 S.Ct. 2338. In the present case, the University requires any organization applying for campus facilities to sign a statement that it will comply with all University rules and regulations. The Committee has agreed to do so, and the University has not established that the Committee will do otherwise.

(2) The second ground upon which denial of facilities can be based has received judicial condonation under several names. For instance, the Court in Tinker stated that actions are prohibitable which "materially and substantially disrupt the work and discipline of the school." 393 U.S. at 513, 89 S.Ct. at 740. However, there must be substantial evidence to warrant the conclusion that violence or disruption will erupt if a particular activity is allowed to take place on campus. In short, there must be objectively demonstrated a "clear and present danger" of violence before refusal can be bottomed thereon. See generally Gregory v. Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969) (concurring opinion); Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L. Ed.2d 430 (1969). The Court in Healey found that there was insufficient evidence to indicate that the SDS would be a disruptive influence on campus. The only indication of impending violence was the unsubstantiated fear of University officials which "constituted little more than the sort of `undifferentiated fear or apprehension of disturbance which is not enough to overcome the right to freedom of expression.' citing Tinker" Id., 408 U.S. at 191, 92 S.Ct. at 2351.

In the case before us, there likewise has been presented no evidence which indicates violence and disruption might evolve from the activities proposed by the Committee. To the contrary, two dances such as requested here have been sponsored previously with no violence accompanying them in any way.

(3) The third and final justification that the University might offer for denial of facilities is that the meeting itself might be unlawful. Sellers v. Regents of University of California, 432 F.2d 493 (9th Cir. 1970). If a meeting did contemplate criminal activity, then the University...