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SILL v. PENNSYLVANIA STATE UNIV.

September 25, 1970

Geoffrey SILL, Alan C. Cunningham, Scott E. Gibbs, Kenneth R. Cooper, Steven D. Weiss, Walter T. Champion, Jr., John M. Forcey, Kenneth A. Karpovich, Diane K. Lehnig, Caesar J. Muccari, David S. Oswald, and M. Dean Ross, Plaintiffs, Richard A. Parkany, Joseph Schneller, John P. Yanak, Ellen Keyser and Paul Kostrow, Intervening Plaintiffs,
v.
The PENNSYLVANIA STATE UNIVERSITY, its Board of Trustees, G. Albert Shoemaker, Individually and as President of its Board of Trustees, H. Thomas Hallowell, Jr., Individually and as Vice President of its Board of Trustees, and Dr. John W. Oswald, Individually and as its President, Defendants


Nealon, District Judge.


The opinion of the court was delivered by: NEALON

This action was instituted by twelve students at Pennsylvania State University (Penn State) against the Board of Trustees and the President of Penn State as a result of disciplinary action imposed on the students in June, 1970, following a campus disturbance in April, 1970. *fn1" Declaratory and injunctive relief is sought to redress alleged violations of the students' rights under the First, Fifth and Fourteenth Amendments of the Constitution. The motion of six students *fn2" for a temporary restraining order was denied on July 2, 1970, the date of the filing of the complaint. The motion of two of the students *fn3" for a preliminary injunction was denied on August 3, 1970, following a hearing on July 14, 1970. Sill v. Pennsylvania State University, 315 F. Supp. 125 (M.D. Pa. 1970). The case then proceeded to final hearing on August 19, 1970.

 Four major issues are presented for determination: (1) whether the jurisdiction of the Court and the constitutional requirements of substantive and procedural due process apply only to those students who were dismissed or suspended and not to those who were placed on probation for varying periods of time; (2) whether the regulations under which the students were disciplined are unconstitutionally vague and overbroad on their face; (3) whether the appointment of a Special Disciplinary Panel by the Penn State Board of Trustees to hear the charges against the students in lieu of the existing disciplinary board was a violation of procedural due process; (4) whether the punishment imposed on the students by the President of Penn State is supported by substantial evidence.

 In accordance with Fed. R. Civ. P. 52, I make the following:

 FINDINGS OF FACT

 1. Penn State is a coeducational public institution of higher education consisting of a main campus at University Park, Centre County, Pennsylvania, and twenty-one campuses situated in various parts of the Commonwealth of Pennsylvania. It was created by the Pennsylvania Legislature in 1855 and operates under a "charter" which consists of various Legislative Acts and decrees of the Court of Common Pleas of Centre County, and is governed by a Board of Trustees consisting of thirty-two members.

 2. Penn State operates on the quarterly term system, consisting of four equal semesters of classes. During the Fall, Winter and Spring Terms at the main campus, which cover the months from October to June, 21,000 undergraduate students and 4,000 graduate students are in attendance. During the Summer Term there are approximately 6,000 undergraduate students and a small, but undetermined, number of graduate students.

 3. As with many other colleges and institutions in the United States, Penn State has experienced an increasing number of student disciplinary problems in recent years, especially on the main campus at University Park.

 4. In late February, 1969, following a sit-in at "Old Main", the principal administrative building at University Park, Eric A. Walker, former President of Penn State, established a Special Judiciary Board (Board #1) to hear charges of disruption against approximately a half-dozen students. This Special Judiciary Board had no prior existence and was composed of three administrators, three faculty members, and three students, one of whom resigned at the time of the adoption of Board procedures.

 5. One week later, President Walker requested the University Senate to establish a permanent disciplinary system for the adjudication of future charges against students.

 6. On March 11, 1969, the 240-member University Senate, which is primarily a faculty body with some student and administrative participation, voted to establish an Ad Hoc Committee on Disruption (Committee #1) to review the problems of campus disruption and to recommend appropriate regulations to the Senate. The Senate's Constitution provides that regulations affecting students are within its legislative jurisdiction, "* * * subject to the revision and all orders of the Board of Trustees."

 7. On April 1, 1969, the University Senate voted its approval of a Statement on Open Expression and Disruption which now appears as Part II of Penn State's "Guide to University Regulations Concerning Student Affairs, Conduct and Discipline, 1969-1970." This Statement had been prepared by the Ad Hoc Committee on Disruption (Committee #1) and contains the principal regulations under which all of the plaintiffs were charged and which they now contend to be vague and overbroad.

 8. On April 1, 1969, the University Senate established an Ad Hoc Committee on Special Judiciary Boards (Committee #2) to develop a disciplinary system for the University.

 9. In April, 1969, after holding several hearings concerning the February, 1969, sit-in, the Special Judiciary Board (Board #1) made its recommendations to President Walker, which he accepted. As a result, four students were placed on disciplinary probation and one student received a letter of warning.

 10. On August 5, 1969, the University Senate established a Temporary Judiciary Board (Board #2) to adjudicate disciplinary problems pending receipt of the recommendations of the Ad Hoc Committee on Special Judicial Boards (Committee #2). The Temporary University Judiciary Board (Board #2) was composed of two faculty members, two undergraduate students, one graduate student, and one administrator. No cases were ever presented to this Board for consideration.

 11. On March 3, 1970, the University Senate accepted the recommendation of the Ad Hoc Committee on Special Judicial Boards (Committee #2) and established a permanent University Judiciary Board (Board #3) to hear cases of disruption. The composition of this Board was as follows: four Panels totaling forty members, equally divided among undergraduate students, graduate students, faculty members, and administrators.

 12. On April 10, 1970, the Penn State Board of Trustees refused to accept this permanent University Judiciary Board (Board #3) and reinstated the prior disciplinary system (Board #2 -- the Temporary University Judiciary Board) pending the Trustees' determination of a proper disciplinary system at Penn State.

 13. On April 14, 1970, at approximately 2:00 P.M., a group of students, mostly black and numbering 60 to 75, entered the Shields Building which houses the Bursar's Office, the student loan office, the room assignment office and the registration office. Although there was no physical violence, the administrative functions of these offices ceased and were interfered with until closing time when the students left the building.

 14. On April 14, 1970, Penn State sought and was granted an ex parte preliminary injunction by Honorable R. Paul Campbell, President Judge of the Centre County Court of Common Pleas, restraining ten named students and forty John Does from "obstructing, hindering or attempting to obstruct or hinder, in any manner, whether or not overt force and violence is committed or threatened to be committed, any person or persons from free ingress and egress to said Shields Building or any other premises or property of the University." Hearing on the injunction was fixed for April 20, 1970.

 15. On April 15, 1970, The Coalition for Peace, a campus group, conducted a noon rally in front of Old Main, the principal administrative building at University Park and one of the customary campus locations for student gatherings, rallies and demonstrations, after which there was a march to the Ordnance Research Laboratory. The march did not hinder normal Laboratory activities nor did Penn State officials interfere with the rally and march in any way.

 16. At about 1:30 P.M., after the march, a portion of the group, estimated at 200 to 500, returned to Old Main, entered the building and remained there. The operations of the offices in the building were disrupted by the students as some ran throughout the building, took the fire hoses down, broke into the President's locked office, closed the Old Main computer center, broke several vending machines, ordered administrators out of the building, engaged in shoving and pushing two administrators, and refused to leave the building, despite requests to do so.

 17. At about 4:00 P.M., a Centre County Deputy Sheriff attempted to, and did, read the injunction obtained the day before as a result of the Shields Building demonstration to the crowd assembled in the center hall of Old Main. The noise and confusion from the crowd and the interference from the squeal of a public address system used by one of the students was so great that the reading of the injunction was unintelligible to those who were in a position to hear it and inaudible to most of those in the building. At this time, some copies of the text of the injunction were distributed to those nearby.

 18. During the afternoon hours, several faculty members and administrators mingled with, and spoke to, the students, requesting them to leave Old Main.

 19. At about 6:00 P.M., Penn State obtained a Writ of Attachment from the Centre County Court of Common Pleas for violation of the injunction issued on April 14, 1970. Named were twelve individuals and one hundred John Does. At 7:50 P.M., the Pennsylvania State Police arrived at Old Main and announced that those remaining after two minutes would be arrested. Some left and others did not. At about 8:00 P.M., three hours after the building normally closed, those remaining were removed from the building and taken to the Centre County Jail. At this time, fifteen State Policemen were injured in the melee which developed as those arrested were taken to waiting buses. Eight required hospital treatment.

 20. On April 20, 1970, President Walker announced that violations of Penn State regulations arising out of the events of April 14 and 15, 1970, would be dealt with by the Temporary University Judicial Board (Board #2). Beginning at 10:45 on the evening of April 20, and continuing until the early hours of April 21, the main campus of Penn State experienced many fire-bombing and window-breaking incidents at several buildings, including a stoning attack on the home of President Walker, forcing him and his wife to flee. None of the plaintiffs, however, is charged with performing or participating in any of these incidents.

 21. On April 21, 1970, the State Police returned to the main campus to arrest certain students for whom they had warrants. During their presence on the campus, stones and other missiles were thrown at them and their buses, causing injury to one officer. Several students were then arrested and taken to the Centre County Jail.

 22. On April 23, 1970, the Penn State Board of Trustees, meeting in special session at the Hilton Hotel, Pittsburgh, Pennsylvania, established a Special Disciplinary Panel (Board #4) "* * * to serve as a fact-finding panel to investigate charges against certain students and make recommendations to the President." The Board of Trustees also empowered the President and his designated representatives to summarily suspend any student who engaged "in disruptive and/or destructive activity" subsequent to April 23, 1970.

 23. Accordingly, the Board of Trustees appointed the following to the Special Disciplinary Panel (Board #4), popularly identified as the Woodside Panel: Honorable Robert E. Woodside, former Judge of the Pennsylvania Superior Court, Chairman; Honorable Genevieve Blatt, former Pennsylvania Secretary of Internal Affairs, and William T. Coleman, Esq., a prominent Philadelphia lawyer.

 24. Shortly thereafter, President Walker created the disciplinary board presently in operation at Penn State. It is composed of two students and three faculty members and is popularly known as the Palladino Panel (Board #5).

 25. On May 5, 1970, the University Senate adopted a Resolution submitted by its Committee on Undergraduate Student Affairs, which called upon the Board of Trustees or its representatives to meet with a Senate Committee for consultations concerning the Trustees' objections to the establishment of Board #3 and to draft a new acceptable plan. The Senate further urged the Board of Trustees to "* * * recognize and accept the jurisdiction of the Temporary (University) Judicial Board (Board #2) established by the Senate August 5, 1969, to deal with major cases of alleged disruptive activity," thereby vacating the appointment of the Woodside Panel.

 26. On May 16, 1970, a series of meetings over two days occurred between the representatives of the Board of Trustees and the Senate. In a public statement issued at the conclusion of the meetings, the representatives agreed that the Temporary University Judiciary Board (Board #2) created by the Senate in August, 1969, could not act quickly enough to resolve the disciplinary charges. It was further agreed that the Special Disciplinary Panel (Woodside Panel) appointed by the Board of Trustees offered the best possibility for a fair, impartial and expeditious handling of the charges. These conclusions were based upon the slow progress of the Special Judiciary Board (Board #1) which operated in the Spring, 1969, and which was similar to the Temporary University Judiciary Board (Board #2); the feeling that membership changes in the Temporary University Judiciary Board (Board #2) were necessary and the desire to have trained legal minds hear the evidence and arrive at a speedy result.

 27. The Woodside Panel (Board #4) conducted its hearings on May 18, 19 and 20, 1970. Rules of procedure were adopted by the Panel and are attached to this Opinion in the Appendix.

 28. All of the plaintiffs in this action were charged with violating Section II(A) of The Pennsylvania State University "Guide to University Regulations Concerning Student Affairs, Conduct and Discipline, 1969-1970." All, except Sill and Weiss, were also charged with violating Rules W-11 and W-15 of The Pennsylvania State University "Senate Policies and Rules for Undergraduate Students, 1969-1970."

 29. Section II(A) of the "Guide to University Regulations Concerning Student Affairs, Conduct and Discipline, 1969-1970" states as follows:

 
"A. STATEMENT ON OPEN EXPRESSION AND DISRUPTION
 
1. As an academic community consisting of students, faculty, administration, and a board of trustees, The Pennsylvania State University is committed to the protection and preservation of the free search for truth; the freedom of thought, inquiry, and speech; and the freedom to hear, examine, and debate alternative theories, data, and views. These are fundamental rights which must be practiced, protected, and promoted by this University.
 
3. Acknowledging that the process of communication may include various forms of individual and collective expression, the University recognizes the right of lawful assembly and demonstration. However, a University dedicated to free inquiry and discussion cannot sanction any interference with or destruction of its responsibilities. The regular and essential operation of the University is construed to include, but is not limited to, the operation of its offices, classrooms, laboratories, research facilities, and the right of access to these and any other physical ...

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