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July 19, 1971

Kenneth R. REEHER, individually and as Executive Director of the Pennsylvania Higher Education Assistance Agency, et al., Defendants

The opinion of the court was delivered by: LORD, III

Plaintiffs, two colleges and twelve college or university students, seek a declaratory judgment that two Pennsylvania statutes, 24 Pa. Stat. Ann. §§ 5104.1, 5158.2 (1971), *fn1" are unconstitutional and an injunction restraining officials of the Pennsylvania Higher Education Assistance Agency (PHEAA) from enforcing or otherwise acting under those statutes. This court has jurisdiction of the controversy pursuant to 28 U.S.C. §§ 1343, 2201, 2281, 2284, and 42 U.S.C. § 1983. The plaintiffs have moved for summary judgment on all issues of the statutes' unconstitutionality pursuant to Fed. R. Civ. P. 56.

Plaintiffs seek to maintain this as a class action. Plaintiff Goddard College purports to represent 26 institutions which have refused to execute an agreement with PHEAA under the statute. We hold that this class is not so numerous that joinder is impracticable, Fed. R. Civ. P. 23(a), and thus Goddard shall not be treated as representative of a class for the purpose of this action. The other named plaintiffs meet the requirements of Rule 23, *fn2" and may maintain this as a class action. Haverford College represents that class of institutions which have executed reporting agreements with PHEAA in order to retain their status as "approved" institutions whose students will be eligible to receive state aid. Plaintiffs O'Shaughnessy, Hutchins, Levine, Goldman, Rabinowitz and Schaefer represent students who have lost their PHEAA loans or scholarships because they attend institutions which have refused to execute reporting agreements with PHEAA. Plaintiffs Goodwin, Sullivan and McLamb represent students at institutions signing a "Haverford" agreement *fn3" with PHEAA who, in order to get financial aid, must disclose in a supplemental form whether they fall within the provisions of subsections (a)(1), (a)(2) or (a)(3), must agree to inform PHEAA promptly if they act so as to fall within those subsections and must authorize their institutions to verify their answers if PHEAA so requests. Plaintiffs Ingram and Casnoff represent students at institutions signing "Haverford" agreements who refuse to execute such supplemental forms and thus have lost their eligibility for financial assistance.

 The record before us consists of the complaint and answer, stipulations of fact agreed on by counsel, exhibits introduced into evidence by plaintiffs and evidence offered at a hearing on plaintiffs' motion for partial preliminary relief. The undisputed factual issues in the record are the bases for determination of the merits of plaintiffs' allegations that the statutes are unconstitutionally vague and overbroad and violate the First, Fourth, Fifth, Ninth and Tenth Amendments and the due process and equal protection clauses of the Fourteenth Amendment.


 Although neither party has raised the issue, we must consider whether we should abstain from any decision on grounds of vagueness or overbreadth in order to give the state courts an opportunity to construe the statute. This is not a case like Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), or Perez v. Ledesma, 401 U.S. 82, 91 S. Ct. 674, 27 L. Ed. 2d 701 (1971), where the Supreme Court held improper the issuance of injunctions by the Federal Court against state criminal proceedings. No state court proceedings exist relevant to this case.

 Abstention is an equitable doctrine. Younger v. Harris, supra, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d at 675; Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 328, 84 S. Ct. 1293, 12 L. Ed. 2d 350 (1964). In light of the legislative history of the statute and its section (c) saving clause which indicates an intent to permit only verbal expression of views, we do not consider the statute "obviously susceptible of a limiting construction." See Zwickler v. Koota, 389 U.S. 241, 251 n. 14, 88 S. Ct. 391, 397, 19 L. Ed. 2d 444 (1967). Where plaintiffs justifiably claim that the statute is vague and overbroad, abstention can defeat the purposes of those doctrines, which exist at least in part to protect the cautious citizen who might be deterred from engaging in conduct which the state either could not or did not intend to punish. See, e.g., Zwickler v. Koota, supra, at 252, 88 S. Ct. 391; Dombrowski v. Pfister, 380 U.S. 479, 486-487, 492, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965). Appropriate here are the Supreme Court's observations about abstention in the face of a vagueness challenge to a loyalty oath:

"* * * In these circumstances it is difficult to see how an abstract construction [by the state courts] of the challenged terms * * * in a declaratory judgment action could eliminate the vagueness from these terms. It is fictional to believe that anything less than extensive adjudications, under the impact of a variety of factual situations, would bring the oath within the bounds of permissible constitutional certainty. Abstention does not require this." Baggett v. Bullitt, 377 U.S. 360, 378, 84 S. Ct. 1316, 1326, 12 L. Ed. 2d 377 (1964).

 The lengthy delay which would occur if we referred this case to the state courts would occasion an equally lengthy period of impingement on the rights plaintiffs seek to protect in this action, assuming their claims to be valid. In addition, our worries about possible friction with state officials arising from failure to abstain are mitigated somewhat by the fact that the attorneys representing the state agency have never raised the abstention issue. For these reasons, in the discretionary exercise of our equity powers, Baggett v. Bullitt, supra, at 375, 84 S. Ct. 1316, we decline to abstain from deciding the merits of plaintiffs' claims.


 Plaintiffs allege that subsections (a)(1), (a)(2) and (a)(3) of the two sections are unconstitutionally vague. They charge that the standards which govern PHEAA's eligibility determinations are so "vague that men of common intelligence must necessarily guess at [their] meaning" and therefore violate "the first essential of due process of law." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322 (1926).

 While the Connally test has been articulated generally as the guide to judicial determinations of vagueness, its mere recital followed by a conclusion that a statute is or is not unconstitutionally uncertain often produces seemingly inconsistent results *fn4" and provides little assistance to legislators concerned with drafting definite statutes. The only reasoned approach is to look at several factors which courts have considered important in relating the rationale for the doctrine to particular statutes. Some statutory definiteness is always necessary; but the pivotal decision as to the degree of certainty depends on several considerations:

(1) The nature of the rights threatened by the uncertainty;
(2) The probability that the threatened right actually will be infringed. This has been seen as a function of what sort of tribunal applies the allegedly uncertain standard;
(3) The potential deterrent effect of the risk of such infringement. This would largely be a function of the nature of the penalty imposed by the statute;
(4) The practical power of the federal courts to supervise the administration of the allegedly vague scheme; and
(5) The extent to which the subject area necessitates verbally imprecise regulation. *fn5"

 The determination of what rights are threatened by the alleged uncertainties in these subsections can be made by asking what it is that students will avoid doing if they are unsure of the statute's meaning. *fn6" Under subsections (a)(2) and (a)(3), the student will attempt to avoid conduct which might be termed a disruption or disturbance of university activities. Certainly he would tend to avoid protests and demonstrations, many of which are protected activities under the First Amendment. *fn7" A higher degree of certainty is required if a statute has potentially inhibiting effects on free speech. NAACP v. Button, 371 U.S. 415, 432, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963); Cramp v. Board of Public Instruction, 368 U.S. 278, 287, 82 S. Ct. 275, 7 L. Ed. 2d 285 (1961); Smith v. California, 361 U.S. 147, 150-151, 80 S. Ct. 215, 4 L. Ed. 2d 205 (1959). Under subsection (a)(1), the student will attempt to avoid any misdemeanor. The potential threat to First Amendment freedoms from vagueness there is thus less than in subsections (a)(2) and (a)(3). *fn8"

 The probability that First Amendment rights will be infringed in some manner by (a)(2) and (a)(3) appears substantial. The uncertain standards are being applied in the first place by an administrative agency or even a university, *fn9" rather than by the state courts which can be assumed to be more sensitive to the niceties of constitutional law. *fn10" PHEAA has broad discretion in applying the statute, partially because the legislature did not set many standards to guide its determinations. Where the legislature did set standards, such as its proscription in subsection (c) of both statutes that "nothing in this section shall be construed to limit the freedom of any student to verbal expression of individual views or opinions," its guidance could well suggest to PHEAA that it can punish non-verbal activities which the courts would protect under the Constitution. Finally, we take notice of the fact that many students have a penchant for participating in protests and demonstrations, just the sorts of activity most likely to be punished under the allegedly indefinite standards.

 The potential deterrent effect of the supposed indefiniteness is likewise substantial. The parties here recognized that the potential deterrence will usually be a function of the penalty imposed by the statute, and insisted on arguing at length whether the statute was "penal." While courts have often regarded the civil-criminal distinction as critical in determining the required standard of certainty, see, e.g., Winters v. New York, 333 U.S. 507, 515, 68 S. Ct. 665, 92 L. Ed. 840 (1948), we think the better view is that which finally bases that determination on the seriousness of what is at stake under the statutory scheme. *fn11" The Third Circuit has adopted the view of Soglin v. Kauffman, 295 F. Supp. 978, 988 (W.D. Wis. 1968), aff'd 418 F.2d 163 (C.A. 7, 1969), that expulsion or suspension from school "may well be, and often is in fact, a more severe sanction than a monetary fine or a relatively brief confinement imposed by a court in a criminal proceeding." Falcone v. Dantinne, 420 F.2d 1157, 1164 (C.A. 3, 1969). The loss of financial aid eligibility may have an even more drastic effect than expulsion or suspension, *fn12" and its deterrent effect on students must be as great as that of many criminal statutes. At the same time, we must recognize that loss of financial aid does not carry the onus of a criminal conviction and may present only a financial hardship. We conclude therefore that the potential deterrent effect of the risk that exercise of protected activity will result in loss of financial aid is substantial; however, it is not so great as it would be if the threatened penalty were criminal conviction resulting in a multi-month imprisonment and/or a stiff fine.

 Determination of the federal courts' supervisory power over the allegedly vague scheme's administration involves an attempt to estimate the abuses of constitutional rights which can be concealed in agency and/or state court fact-finding. *fn13" Under (a)(2) and (a)(3), fact determinations made by the university, which may not be required to give the student a hearing, heavily influence the initial and final fact determinations made by PHEAA. The right to cross-examine the witnesses against him in a PHEAA appellate hearing avails the student little when the evidence against him is a report from the university on his activities, as the testimony of Executive Director Reeher indicated would often be the case. PHEAA regulations which provide for a statement of the grounds for the initial denial of eligibility and for findings of fact if there is an appellate hearing make its decisions more susceptible to judicial review than if no reasons were given. However, while the hearing examiner must make findings of fact *fn14" and recommendations after a hearing, neither the Committee on Appeals which reviews his findings nor the Board of Directors who make the final decision on the appeal are required to state findings or give reasons supporting their decision. It is these factual determinations by PHEAA which will provide the framework for any constitutional challenge to the validity of the agency ruling. *fn15" Such determinations, which are outside the control of the federal courts, may effectively doom a student to an adverse ruling on his claims *fn16" even if he does not get to the federal courts. Thus, federal court supervisory power over the allegedly vague scheme is curtailed in a significant fashion.

 In determining the extent to which the subject area necessitates verbally imprecise regulation, *fn17" it seems most profitable to look at the ways in which states have regulated similar conduct. An obvious parallel exists between the conduct sought to be deterred by (a)(2) and (a)(3) and disorderly conduct or breach of the peace statutes. As the statute upheld by the Supreme Court in Zwicker v. Boll, 391 U.S. 353, 88 S. Ct. 1666, 20 L. Ed. 2d 642 (1968), indicates, *fn18" the state can at least give some description of the conduct it condemns as well as of the consequence to society it seeks to avoid. It would be nearly impossible to itemize every form of conduct which might result in disruption of the peace of the university, but careful draftsmanship can make use of generic and modifying terms to delineate the sort of campus conduct that will not be permitted. It is also a simple matter for the legislature to include some intent requirement, such as the use of "maliciously or wilfully" which saved a Michigan anti-disorder statute from indefiniteness. *fn19" See McAlpine v. Reese, 309 F. Supp. 136, 139 (E.D. Mich. 1970).

 In light of these five considerations, we conclude that a substantial potential threat to First Amendment freedoms would result from uncertainty in subsections (a)(2) and (a)(3), that control over the administration of the scheme by the federal courts is not such as would neutralize that possibility, and that the subject matter regulated does not necessitate vague standards of control which leave room for ad hoc decisions. Therefore, we will apply a strict standard of certainty to these subsections. Because of its more tenuous connection with First Amendment rights, subsection (a)(1) will be measured against less rigorous certainty requirements.

 The allegedly vague segment of this subsection is that which allows PHEAA to deny aid to anyone convicted of a "misdemeanor involving moral turpitude." Defendants rely on the fact that the Supreme Court, in its only pronouncement on the subject, held that the phrase "crime involving moral turpitude" in the Immigration Act of 1917 was not unconstitutionally vague. Jordan v. De George, 341 U.S. 223, 71 S. Ct. 703, 95 L. Ed. 886 (1951). That case is distinguishable from the instant controversy. The Court considered it "significant that the phrase has been part of the immigration laws for more than sixty years." Id. at 229, 71 S. Ct. at 707. The Court noted that no case had held the statutory phrase vague and that it had previously construed the phrase. Id. at 230, 71 S. Ct. 703. There is, of course, no such line of cases defining the term "misdemeanor involving moral turpitude" under this statute. *fn20" More significantly, the majority in Jordan seems to have considered the determinative issue to be whether "crime involving moral turpitude" was unconstitutionally uncertain in reference to a particular conviction. *fn21" In the case at bar, we must consider not whether plaintiffs would be aware that a particular crime involves "moral turpitude," but whether the plaintiffs will fairly be warned as to which misdemeanors involve moral turpitude and thus may occasion the additional sanction of loss of financial aid eligibility.

 The different procedural posture of this case from Jordan requires us to take this different approach. Cf. Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1965); Baggett v. Bullitt, supra. We do not have before us an individual accused of violating a statute because he has engaged in certain conduct. Plaintiffs here challenge every aspect of the statute. They do not argue that the statute is so vague they could not have known it applied to a particular action. They argue instead that the statute is so vague that they do not know what actions are proscribed.

 Our brother Ditter, in dissent, theorizes that if the term "misdemeanor involving moral turpitude" includes a class of crimes about which reasonable men could not differ, it cannot be held unconstitutional on vagueness grounds in this action. The Supreme Court, in Keyishian, held a statute prohibiting the utterance of any treasonable or seditious word or the doing of any treasonable or seditious act unconstitutionally vague when teachers to whom the act applied sought declaratory and injunctive relief. The Court conceded that some conduct clearly would be seditious, but emphasized: "* * * The crucial consideration is that no teacher can know just where the line is drawn between 'seditious' and nonseditious utterances and acts." 385 U.S. at 599, 87 S. Ct. at 681. See also Baggett v. Bullitt, supra, 377 U.S. at 369-370, 84 S. Ct. 1316, 12 L. Ed. 2d 377. In Coates v. Cincinnati, 402 U.S. 611, 91 S. Ct. 1686, 29 L. Ed. 2d 214 (1971), the Supreme Court held a statute unconstitutionally vague on its face even when it was attacked by defendants in a criminal prosecution, one of whom was a student who had been involved in a demonstration. The dissent argued much as the dissent here does, pointing out that "any man of average comprehension should know that some kinds of conduct" are covered by the ordinance. Even that minority view, however, recognized that a different approach is called for when the "statute at issue purports to regulate or proscribe rights of speech or press ...

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