President Anderson immediately ordered that the University apply for an ex parte injunction in the Court of Common Pleas. This injunction was obtained the same day and the students left the lounge.
On September 17, 1970 this present action was filed alleging jurisdiction under 42 U.S.C.A. § 1983 and/or 28 U.S.C.A. § 1343, claiming a violation of the 14th Amendment.
The Court of Common Pleas which convened the hearing on whether the state injunction should be continued, deferred decision pending the outcome of the present action. By stipulation of the parties the original injunction was continued.
The allegation before the Court of Common Pleas was of unauthorized obstruction of University facilities by DCC. The action before this court alleges violations of the Civil Rights Act and the 14th Amendment of the Constitution. Both actions rest on erroneous grounds.
The only real issue involved in this matter is the real or apparent authority of the SAC. The University's application in the Court of Common Pleas was at best premature. The University has not put forth any evidence which would justify them bypassing the emergency provisions of Principals 1-7 and Section III of the Temple Plan for University governance, which provisions had previously been adopted by the trustees. Temple University being state supported, 24 P.S. § 2510 et seq., the above emergency provisions should have been compulsorily followed prior to any state court action. The rationale of the administration given at the hearing does not hold water. Vice-President Smith testified (N.T. 308) that President Anderson was not sure that the persons involved in the disagreement were all university students. In light of the fact the DCC was a recognized student activity, such assumption, in the absence of any attempt to verify, was unreasonable.
Had reasonable minds prevailed in the situation the emergency panel would have convened to determine whether SAC had entered into a one year contract with DCC (as the University had done the summer before) for the use of Mitten Hall's first floor quiet lounge as a day care center. This procedure still remains as the best course of action for the parties. If the prescribed administrative procedures had been unable to settle the question then the Court of Common Pleas would have been the proper forum.
It is unlikely that any prospect of irreparable harm would have necessitated such a drastic deviation from the above procedure (since DCC had been in the lounge for a week it is questionable whether a stay of a day or two more would have constituted any irreparable harm).
It was necessary for the Court to review what has been done and what should have been done in order to determine the jurisdictional questions. A major jurisdictional contention of plaintiffs is that Doctor Anderson's choice to ignore SAC's authority and to bypass the emergency panel served to deprive plaintiff of their due process and equal protection rights.
While one may sympathize with the plaintiffs in their protest over the chain of events, this Court cannot agree that any real constitutional question is presented. The questions to be resolved are ones of agency and contract, and such a dispute does not in this case constitute a violation of either 42 U.S.C.A. § 1983 or 28 U.S.C.A. § 1343. While it is conceivable that these sections could be violated by actions that may follow this point in time, any present claim of jurisdiction by this court would be premature. Likewise, in the absence of a substantial constitutional question, defendant's motion for a three judge court is denied. Swift & Co. v. Wickham, 382 U.S. 111, 115, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965).
Plaintiffs at this point have available full and adequate redress in the Courts of Pennsylvania.
And therefore, to wit, this 21st day of January 1971, it is ordered, adjudged, and decreed that the above captioned case be and hereby is dismissed.
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