until graduation; one student be given a letter of warning, and the charges against two students be dropped. Attorney Coleman filed a separate report, recommending disciplinary action for only nine students ranging from letters of warning to suspension for one term.
35. President Walker accepted the recommendations of the Woodside Panel and on June 19, 1970, informed each of the students having been charged with disruption of the operations of Penn State that the disciplinary action suggested by the Panel would be imposed "effective immediately."
36. In his letter of notification to each student, President Walker also provided each the opportunity to submit additional information to him by June 26, 1970. The students could either submit a written statement or they could have an interview with a member of President Walker's staff. The President promised a decision on any additional information by the first of July, 1970.
37. Plaintiffs Sill, Cunningham, Cooper, Weiss, Karpovich and Parkany took advantage of President Walker's offer and submitted additional information. All but Karpovich did so through an interview with a member of the President's staff.
38. On June 30, 1970, the day upon which Eric A. Walker retired as President of Penn State, he informed each of these plaintiffs that his decision of June 19, 1970, would not be altered.
39. The specific punishment imposed on each of the plaintiffs is as follows: Dismissal -- Sill, Cunningham, Cooper, Weiss and Champion; Suspension for four terms -- Gibbs and Keyser; Suspension for two terms -- Parkany; Probation for two years -- Yanak, Forcey, Karpovich, Kostrow, Lehnig, Muccari, Oswald and Ross; and Probation until graduation -- Schneller.
40. On July 1, 1970, Dr. John W. Oswald succeeded Eric A. Walker as President of Penn State.
The law applicable to students' rights while attending a public school
has developed rapidly in recent years and certain controlling principles have emerged. The States and school administrators have comprehensive authority, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 507, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). Similarly, University administrators have the responsibility to control and regulate the conduct and behavior of students which tend to impede, obstruct or threaten the achievement of a University's educational goals. Goldberg v. Regents of University of California, 248 Cal. App. 2d 867, 57 Cal. Rptr. 463, 472 (1967); Jones v. State Board of Education, 279 F. Supp. 190, 205 (M.D. Tenn. 1968), aff'd., 407 F.2d 834 (6th Cir. 1969). This authority over the student, while comprehensive, is not absolute and a student's constitutional rights must be recognized and "* * * applied in light of the special characteristics of the school environment." Tinker v. Des Moines Community School District, supra, at 506, 89 S. Ct. at 736. A student may express his opinions, even on controversial subjects, if he does so without materially or substantially interfering with appropriate discipline in the operation of the school, and without colliding with the rights of others. Tinker v. Des Moines, supra; Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966). Nevertheless, in or out of the University, the First Amendment does not require that persons with opinions or beliefs can express them at anytime, and at any place, whenever and however and wherever they please. Cox v. State of Louisiana, 379 U.S. 559, 574, 85 S. Ct. 476, 13 L. Ed. 2d 487 (1965); Adderley v. State of Florida, 385 U.S. 39, 48, 87 S. Ct. 242, 17 L. Ed. 2d 149 (1966). Therefore, a State University, in order to create a suitable climate for study and to maintain appropriate discipline, may impose reasonable and non-discriminatory regulations of time, place and manner even on pure speech. See C. A. Wright, Constitution on the Campus, 22 Vanderbilt Law Review, 1027, 1039 (1969).
"The rights of freedom of assemblage and freedom of expression must not be exercised in such a way as to interfere with the operation of classrooms and laboratories, with the availability and use of libraries and other facilities, or with the conduct of the university's administrative responsibilities. Reasonable regulations to prevent such interference is clearly within the rule-making jurisdiction of the University." Sherry, Governance of University: Rules, Rights and Responsibilities, 54 Calif. L.R. 27 (1966). However, one point should be made perfectly clear! While freedom of expression and freedom of assembly are to be carefully protected from unwarranted University interference, action is quite different as it "carries no first amendment shield and can be regulated in any way that the public health, safety, morals, and welfare require." Wright, supra, at 1039. In addition, certain forms of conduct mixed with speech may be regulated or prohibited. "The most classic of these was pointed out long ago by Mr. Justice Holmes: 'The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic.' Schenck v. United States, 249 U.S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470. A man may be punished for encouraging the commission of a crime, Fox v. Washington, 236 U.S. 273, 35 S. Ct. 383, 59 L. Ed. 573, or for uttering 'fighting words', Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031." Cox v. Louisiana, supra, at 563, 85 S. Ct. at 480. A course of conduct is not entitled to First Amendment immunity merely because the conduct was initiated, evidenced or carried out by means of language, either spoken, written or printed. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S. Ct. 684, 93 L. Ed. 834 (1949). Consequently, when "speech" and "non-speech" elements are combined in the same course of conduct, the non-speech element can justify incidental regulations on First Amendment freedoms. United States v. O'Brien, 391 U.S. 367, 376, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968). These limitations, in some instances, may be more appropriate on a university campus than in the non-university society because of the selective purpose and the special characteristics of the school environment referred to in Tinker. Finally, Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values. Epperson v. Arkansas, 393 U.S. 97, 104, 89 S. Ct. 266, 21 L. Ed. 2d 228 (1968). The judiciary must exercise restraint in questioning the wisdom of specific rules or the manner of their application, since such matters are ordinarily the prerogatives of school administrators rather than the Courts. Barker v. Hardway, 283 F. Supp. 228 (D.C.W. Va.),
aff'd., 399 F.2d 638 (4th Cir. 1968). On the other hand, the vigilant protection of constitutional freedom is nowhere more vital than in the community of American schools. Epperson v. Arkansas, supra; Shelton v. Tucker, 364 U.S. 479, 487, 81 S. Ct. 247, 5 L. Ed. 2d 231
(1960). With these guidelines as a starting point, we move to the specific issues raised in this action.
I. JURISDICTION AND DUE PROCESS APPLICABILITY TO STUDENTS NOT SEVERELY DISCIPLINED
At the outset, we are confronted with Penn State's argument that those plaintiffs who were not dismissed or suspended, but merely placed on probation, have not been aggrieved to the degree that they can claim deprivation of their constitutional rights. There is persuasive authority to support this position. In the now recognized landmark case of Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961), in which it was held that due process requires notice and some opportunity for a hearing before students are expelled at a tax-supported college, the Court noted that "* * * no one can question that the right to remain at the college in which plaintiffs were students in good standing is an interest of extremely great value." 294 F.2d at 157 (Emphasis supplied). The United States District Court for the Western District of Missouri adopted a General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education, 45 F.R.D. 133 (W.D. Mo. 1968), in which it recognized that "the discipline of students in the educational community is, in all but the case of irrevocable expulsion, a part of the teaching process. * * *" Professor Wright opines that the Courts will distinguish severe penalties from mild penalties and will require formal procedures if there is to be expulsion or suspension for any significant time. Wright, supra, at 1071. He further acknowledges that if a school must establish a disciplinary system that meets constitutional standards for every situation where a student is charged with an infraction, the institution itself would be brought to a halt. Wright, supra, at 1083. In addition to the enormous burden this would place on school administrators, it would tend to make the Courts Super-Disciplinary Boards; could lead to judicial intrusion in matters of special academic expertise; could weaken the dominant position educators must possess in their relationship with students; could deprive them of the power to impose punishment as a part of their guidance and counseling function, and, practically speaking, would inundate the Courts with de minimis lawsuits.
With reference to the instant case, I conclude that probationary plaintiffs have not been aggrieved in the constitutional sense so as to challenge the regulations here involved, the procedure followed, or the punishment imposed. Being placed on probation or being denied certain school privileges does not, in my view, rise to the level of the deprivation of a right secured by the Constitution requiring judicial relief.
II. VAGUENESS AND OVERBREADTH
It is well established that a law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process. Baggett v. Bullitt, 377 U.S. 360, 367, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964); Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S. Ct. 275, 7 L. Ed. 2d 285 (1961). Furthermore, this "void for vagueness" doctrine has also been applied to determine if the statutory language is "overbroad", that is, could a reasonable application of its sanctions include conduct protected by the Constitution? Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967). The important question for our purposes is whether the vagueness and overbreadth standard applies with equal force to student regulations at a State University. The tenor of the cases appears to recognize that the doctrine is applicable to student regulations, but not with the same specificity that is required of State criminal statutes. Even the opinion of Judge Doyle at the District Court level in Soglin v. Kauffman, 295 F. Supp. 978 (W.D. Wisc. 1968), aff'd., 418 F.2d 163 (7th Cir. 1969), on which plaintiffs heavily rely, noted that the doctrine applied "in some measure" to university regulations and, on appeal, the Seventh Circuit Court of Appeals expressly held that university codes of conduct are not required to satisfy the same rigorous standards as criminal statutes. 418 F.2d at 168. Similar reasoning has been employed in Norton v. Discipline Committee, 419 F.2d 195, 200 (6th Cir. 1969); Esteban v. Central Missouri State College, 415 F.2d 1077, 1088 (8th Cir. 1969); Jones v. State Board of Education, supra, and Siegel v. Regents of University of California, 308 F. Supp. 832, 836 (N.D. Cal. 1970). The Report of the American Bar Association Commission on Campus Government and Student Dissent (1970), advises against detailed codes of conduct comparable to criminal statutes and recommends rules which will provide fair notice of what is expected and what is forbidden. Otherwise, the Commission fears such elaborate codes may detract from the educational character of an academic institution and may inadvertently create an adversary relationship between school officials and students. The Eighth Circuit Court of Appeals suggests "flexibility and reasonable breadth, rather than meticulous specificity" and further observes, with reference to the ability of the body to whom the rules are directed to understand them, that "the college student * * * is appropriately expected to possess some minimum intelligence. * * *" Esteban v. Central Missouri State College, supra, at 1088. The regulation herein,
therefore, will be read in the light of the principles enunciated above, viz., mindful of the comprehensive authority possessed by school officials to prescribe and control conduct in the schools, the need for flexibility and reasonable breadth in the promulgation of Rules of Conduct, the educational ends sought to be accomplished in a university setting, and the intellectual competency of the student body, is Section II(A) of the University Guide so vague and overbroad on its face as to deny fundamental constitutional safeguards to the plaintiffs? I hold that it is not.
After specifying the laudable purposes underlying free and open expression, and emphasizing that it will be promoted and protected by the University, Section II(A) recognizes the right of lawful assembly and demonstration. However, while recognizing that these rights must be protected by the University, the Regulation excludes any action or combination of actions which unreasonably interferes with the operation of, and right of access to, physical accommodations used in the performance of the teaching, research, and administrative functions and related adjunct activities of the University, or infringes upon the rights of others to freely participate in its programs and services. What is unreasonable, much less unconstitutional, about a Regulation declaring physical accommodations used in the performance of teaching, research, and administrative functions out of bounds for such disruptive actions? Whether it is speech-connected or stems solely from an aim to physically confiscate University property, when it becomes action that unreasonably interferes with the operation of certain essential functions of the University, it is not constitutionally protected and need not be tolerated. The Regulation provides an adequate guide to the student of what is expected and what is forbidden. Even under the standard applicable to statutes generally, men of common intelligence would not necessarily guess at its meaning and differ as to its application and a reasonable application of its terms would not include conduct protected by the Constitution. In Cameron v. Johnson, 390 U.S. 611, 616, 88 S. Ct. 1335, 1338, 20 L. Ed. 2d 182 (1968), plaintiffs argued, as here, that a statute prohibiting "picketing * * * in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any * * * county * * * courthouses * * *" was so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. Mr. Justice Brennan, speaking for the Court, rejected this contention by holding that "the terms 'obstruct' and 'unreasonably interfere' plainly require no 'guess(ing) at (their) meaning.' Appellants focus on the word 'unreasonably.' It is a widely used and well understood word and clearly so when juxtaposed with 'obstruct' and 'interfere.' We conclude that the statute clearly and precisely delineates its reach in words of common understanding." 390 U.S. at 616, 88 S. Ct. at 1338.
The occasion to infringe upon the rights of others is more available in the University community, and especially in those facilities where study, concentration and attentiveness are so much more the order of the day, than in a non-university setting. A classroom where an instructor is lecturing interested students is entitled to at least as much protection as the theatre where the shouting of "fire" is not to be countenanced. Research functions similarly involve a tranquil, non-disruptive atmosphere wherein the work at hand can be appropriately accomplished. Administrative functions are usually confined and centralized and would involve the use of only a small part of university property. In order to function properly and to provide educational opportunity and appropriate atmosphere, school administrators must protect against unreasonable interference with the operation of these vital and sensitive facilities. That is what was done here in language that provides as much of a compass as a student should need to fairly notify him of what is expected and what is not. The Regulation here, Section II(A) of the University Guide, is reasonable, non-discriminatory, and sufficiently specific and necessary to fulfill the University mission. Plaintiffs' contention that it is vague and overbroad is rejected.
III. DENIAL OF PROCEDURAL DUE PROCESS
Plaintiffs also contend that the action of the Board of Trustees in appointing a Special Disciplinary Panel (Board #4), composed of outsiders having no experience whatever with the University, to serve as a fact-finding panel in derogation of the University's regular procedures, violated their rights to procedural due process. Specifically, the students charge that "in this case, and in this case only, the University constituted a special panel, after the acts charged had occurred, with no university students or faculty or administrators thereon * * * a panel of non-University people, from which the most severe penalties resulted." More specifically, the students complain that the Temporary University Judicial Board (Board #2), consisting of two faculty members, one administrator and three students, was in existence both before and after the incidents of April 15, and would, in the normal course of events, hear all disciplinary charges, and the abrogation of this regularly established procedure
constituted a denial of that fundamental fairness which due process requires. On the other hand, Penn State asserts that "the Woodside Commission was appointed in the sincere belief that the Temporary Judicial Board established by Resolution of the University Senate on August 3, 1969, * * * which was in existence at the time the offenses in question were committed, was not capable of conducting efficient hearings which would protect the rights of all parties concerned and accord due process to the students charged." To support this assertion, Penn State points to the extraordinary wrongs that had been committed; the possibility that over one hundred students could be charged; the need for impartiality, which could be expected from a commission whose members were not present on campus when the disturbances occurred; the desirability of special legal expertise inasmuch as it was anticipated that many students would be represented by able and trained counsel, and the concern that, from past experience with a similar tribunal (Board #1), the hearings would be exceedingly long in duration.
It is undisputed that the Board of Trustees had the power to revise all regulations promulgated by any University body or committee. In addition, plaintiffs make no claim of unfairness or denial of procedural due process by the Woodside Panel, but insist that the abrupt departure from the established procedure by appointing a different panel, in itself, was a breach of due process.
I hold that the appointment of this distinguished panel, consisting of highly respected and legally-trained members, for the purpose of making factual findings and disciplinary recommendations to the President did not offend plaintiffs' constitutional rights to procedural due process.
The oft-quoted case of Dixon v. Alabama State Board of Education, supra, in reviewing the area of students' rights, applied the standard that the minimum procedural requirements necessary to satisfy due process depends upon the circumstances and the interests of the parties involved. After weighing these factors, the Court concluded "* * * that due process requires notice and some opportunity for hearing before a student at a tax-supported college is expelled for misconduct." 294 F.2d at 158 (Emphasis supplied). Professor Wright, treating the problem on a wider scale, suggests that * * * the due process clause of the fourteenth amendment does not impose on universities any particular procedural model, whether it be derived from criminal, civil, or administrative proceedings. Instead the courts should accept any institutional procedure so long as it is reasonably calculated to be fair to the student involved and to lead to a reliable determination of the issues." Wright supra, at 1060. The Commission on Campus Government and Student Dissent of the American Bar Association analyzed this issue and recommended procedures that would facilitate a reasonable determination of the truth or falsity of the charges and provide fundamental fairness to the parties. Specifically, the Commission endorsed the following:
"d. Impartiality of the Trier of Fact