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CORPORATION OF HAVERFORD COLLEGE v. REEHER

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


July 19, 1971

The CORPORATION OF HAVERFORD COLLEGE et al., Plaintiffs,
v.
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

JOSEPH S. LORD, III, District Judge.

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.

 I. ABSTENTION

 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.

 II. VAGUENESS

 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.

  A. Subsection (a)(1)

 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 protected by the First Amendment." Id. at 619, 91 S. Ct. at 1691. The dissent conceded that in such cases involving First Amendment rights, a defendant could successfully challenge a statute as being unconstitutionally vague on its face, even if his conduct clearly was proscribed by the statute. See also Thornhill v. Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940).

 When we ask what moral turpitude means, we come up with the same answer as did Justices Jackson, Black and Frankfurter in their dissent in Jordan :

 

"* * * If we go to the dictionaries, the last resort of the baffled judge, we learn little except that the expression is redundant, for turpitude alone means moral wickedness or depravity and moral turpitude seems to mean little more than morally immoral. * * *" (footnotes omitted) 341 U.S. at 234, 71 S. Ct. at 709.

 They pointed out that the large number of lower court cases cited by the majority which had applied the phrase seemed capricious in their results *fn22" and then hit at the core of what we find most pernicious in this phrase:

 

"* * * [It] [the debate over the morality of some crimes] shows on what treacherous grounds we tread when we undertake to translate ethical concepts into legal ones, case by case. We usually end up by condemning all that we personally disapprove and for no better reason than that we disapprove it. * * *" Id. at 242, 71 S. Ct. at 713.

 The term "moral turpitude" tells us very little about what misdemeanors trigger the loss of financial aid eligibility. Defense counsel at oral argument admitted he did not know what a "misdemeanor involving moral turpitude" was, but said the courts did. In what the parties term was an "authoritative declaration of the application of the statutes," PHEAA Executive Director Reeher replied to the question of a university official who asked the meaning of "misdemeanor involving moral turpitude":

 

"This is a legal term which means that the misdemeanor is one which involves baseness, vileness or depravity in the private and social duties which a man owes his society. It is something immoral in itself, irrespective of the fact that it is punished by the law."

 In essence, therefore, the legislature is saying that any immoral misdemeanor will subject the student to the extra sanction of loss of financial aid. If the state insists on legislating morality, we will insist at least that it spell out its moral code, particularly where those affected by the statute are of a different generation from the lawmakers and generally share a somewhat different outlook on what is and is not moral. The phrase "misdemeanor involving moral turpitude" is so vague it is unconstitutional.

  B. Subsection (a)(2)

 This subsection provides:

 

"(a) The agency may deny all forms of financial assistance to any student:

 

"(2) Who has been expelled, dismissed or denied enrollment by an approved institution of higher learning for refusal to obey, after the effective date of this act, a lawful regulation or order of any institution of higher education, which refusal, in the opinion of the institution, contributed to a disruption of the activities, administration or classes of such institution;"

 It is perfectly plain that the application of (a)(2) frequently will affect protected First Amendment activities, such as demonstrations and rallies. Subsection (a)(2) has no certainty at all. It is impossible for a student to know what an institution may consider to be a disruption, or whether a given course of conduct contributed to a disruption. No objective standards have been set forth to guide what is basically a subjective determination as to when an activity has been disrupted, or whether the student's conduct contributed to it.

 Indeed, a Yale University administrator wrote PHEAA in March, 1970, and asked, among other questions, "Still in subparagraph a., by what standards is the determination to be made that a refusal contributed to a disruption?" In reply, Executive Director Reeher said:

 

"The determination of whether a refusal contributed to a disruption is to be made solely by the institution. * * PHEAA does not intend to issue standards for guidance of the institutions in this connection."

 In a later answer to another inquiry asking whether PHEAA could be certain that universities would have and act under a standard definition of what constitutes "disruption of the activities, administration or classes of institutions" (sic), Reeher stated:

 

"The Agency hopes that all participants are familiar with the meaning of this phrase. However, if there is any doubt, if pertinent facts are forwarded to the Agency, we will make a determination * * *."

 Nowhere did PHEAA indicate the standards it would use to determine whether a disruption had occurred.

 The loss which a student might suffer from contributing to a "disruption" is substantial. The Third Circuit has recognized that expulsion or suspension from school "may well be, and often is in fact, a more sever 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). Punishment under this statute may be more drastic. Scholarship assistance is awarded only where the student and his family have insufficient resources to meet educational costs at the institution of his choice. Forty per cent of scholarship recipients come from families with incomes of $8,000 or less. In its 1969-70 Annual Report, PHEAA said the purpose of this scholarship program was "to prevent 'tragic underdevelopment' of human talent by providing financial assistance to young people who might otherwise be denied the opportunity of a higher education." Praising the lending institutions which cooperate in PHEAA's guaranty program for loans up to $1500, PHEAA said, "Undoubtedly their spirit of service resulted in making it possible for several thousand students to begin or continue their postsecondary education." ANNUAL REPORT 18. Such facts and statements indicate that the loss of eligibility for financial aid may mean the end of college education for some students.

 Thus, a heavy penalty of deprivation of financial aid eligibility rides on the university's interpretation of words without any guiding standard. The student could not possibly know what would be a disruption in the opinion of his school, an opinion which may vary widely from institution to institution and from time to time. Under the statute, the word "disruption" acquires only such meaning as any given institution may attach to it at any given time. The subsection cannot constitutionally stand in the face of such manifest indefiniteness.

 C. Subsection (a)(3)

 The phrase attacked as unconstitutionally vague in this subsection is "any offense committed in the course of disturbing, interfering with or preventing * * *." This language has no special technical or common law meaning. *fn23" In fact, defendant's brief argues for the clarity of "disturbing" by equating it to "disorderly conduct" and proceeding to cite cases upholding the definiteness of the latter phrase. There is no intent or purpose requirement *fn24" such as that in McAlpine v. Reese, 309 F. Supp. 136 (E.D. Mich. 1970) where the court found the terms "disturbance" and "diversion" sufficiently definite in a statute requiring that their making be wilful or malicious. In an ordinance with no such intent requirement, the court ruled that proscription of "making, aiding, countenancing or assisting in the making of a 'disturbance' * * *" was unconstitutionally vague. Landry v. Daley, 280 F. Supp. 968 (N.D. Ill. 1968).

 The court focussed on the term "disturbance."

 The term "interfering" was upheld against a challenge of vagueness by the Supreme Court where a statute prohibited "picketing * * * in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any * * * county * * * courthouses * * *." Cameron v. Johnson, 390 U.S. 611, 616, 88 S. Ct. 1335, 1338, 20 L. Ed. 2d 182 (1968). Unlike the phrase before us, that statute narrowly delineated with what interference was prohibited and the terms "obstruct" and "unreasonably" in combination with "interfere" gave some idea of the limits of the word. *fn25" More recently, however, the term "interfere" has been held unconstitutionally uncertain when it appeared in less limiting contexts. In Landry v. Daley, 280 F. Supp. 968, 973, the court held unconstitutional an ordinance imposing a maximum $100 fine and reading in part, "* * * or shall in any way interfere with or hinder or prevent him [a policeman] from discharging his duty * * *," partially relying on the indefiniteness of "interfere." In Baxter v. Ellington, 318 F. Supp. 1079, 1086 (E.D. Tenn. 1970), the court invalidated a statute on vagueness grounds proscribing any act which "interferes with, or tends to interfere with, the normal, orderly, peaceful, or efficient conduct of the activities of such campus * * *."

 These considerations suggest that the terms "disturbing" and "interfering" may be unconstitutionally vague in themselves. We do not decide that issue, because we hold that these terms, in combination with the modifying phrase "in the course of" make the subsection unconstitutionally uncertain. A natural assumption might be that the legislature intended to reach offenses directly related to the "disturbance" or "interference" either as a cause or an element of the "disturbance." Yet, the language can rationally be read by the cautious student as reaching any offense, such as a traffic violation *fn26" or failure to possess his draft card, which is only temporally related to this "disturbance." The phrase "in the course of" might apply to the planning stages for an event which "disturbs" university activities. We do not conclude that this phrase cannot constitutionally be used in statutes. We do conclude that when the phrase is used in this context, in combination with other indefinite terms, the subsection fails to satisfy the strict standard of constitutional certainty which is required here. Subsection (a)(3) is therefore unconstitutionally vague.

 III. OVERBREADTH

 Plaintiffs also attack subsections (a)(1) to (a)(3) as being unconstitutionally overbroad. The doctrine of overbreadth requires that "a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." Zwickler v. Koota, supra, 389 U.S. at 250, 88 S. Ct. at 396; NAACP v. Alabama, 377 U.S. 288, 307, 84 S. Ct. 1302, 12 L. Ed. 2d 325 (1964). In evaluating a statute's reach, we must consider its potential effects not just its proven effects. See NAACP v. Button, 371 U.S. 415, 432, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963); NAACP v. Alabama, 357 U.S. 449, 461, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958). The principle of overbreadth, like that of vagueness, shows the courts' concern that the threat of sanctions may deter the exercise of constitutional freedoms as potently as the actual application of sanctions. Therefore, when First Amendment freedoms may be threatened, as is the case here, the government may regulate in the area "only with narrow specificity." NAACP v. Button, supra, 371 U.S. at 433, 83 S. Ct. 328.

 Subsection (a)(1) punishes only students who have committed certain crimes. Since criminal conduct is not protected by the Constitution, there is no overbreadth problem there.

 Subsection (a)(2) does present serious overbreadth problems. Since a private university is not bound by the Fourteenth Amendment to refrain from interfering with First Amendment freedoms, *fn27" a university regulation which prohibits a student from engaging in activities which would be constitutionally protected from state interference may be lawful. Similarly, the requirement that the student's conduct has contributed to a disruption of university activities, in the opinion of the institution, does not guarantee that the conduct will be constitutionally unprotected against state action. *fn28" Since the state cannot directly deny a student eligibility because of his exercise of First Amendment rights, see, e.g., Speiser v. Randall, 357 U.S. 513, 518-519, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958), it cannot do so indirectly by tagging that denial onto a determination by a university which is not bound to respect such rights. Therefore, regardless of whether (a)(2) is constitutional as applied to students expelled by universities subject to constitutional strictures against state action, *fn29" it is unconstitutionally overbroad in that it may sanction a student for engaging in constitutionally protected activity.

 Subsection (a)(3) presents a different problem. It is clear that the state could deny eligibility for financial aid to any student convicted of any offense. However, if a statute denied aid to any student who was convicted of any offense committed "in the course of protesting government policies," we would hold it unconstitutional, since it would obviously be an indirect attempt by the state to punish free speech. Plaintiffs allege that (a)(3) occupies the middle ground as a statute which may include free speech as a trigger for sanctions in addition to those imposed solely for the offense itself. Since the hazy terms "disturb" and "interfere" may naturally be construed to include various sorts of student activities which are constitutionally protected, *fn30" (a)(3) does permit the state to subject students to additional sanctions for an offense solely on the basis of First Amendment activity. The student is losing his financial aid eligibility under (a)(3) not because he committed an offense, as in (a)(1), but because the offense occurred "in the course of disturbing, interfering with or preventing" orderly conduct of the university. The cautious student, well aware that he acts unwittingly in many ways which might be categorized as offenses (e.g., failure to carry his draft card, littering, etc.), will shy away from actions which might be characterized as disturbing or interfering with the orderly conduct of the university, and thus will be deterred from First Amendment activities which might fall within those descriptions. This is precisely the result against which the principle of overbreadth attempts to guard. See NAACP v. Button, supra, 371 U.S. at 433, 83 S. Ct. 328. Since subsection (a)(3) sweeps so broadly as to invade the area of protected First Amendment freedoms, it is unconstitutionally overbroad.

 IV. SECTION (b)

 We have decided that subsections (a)(2) and (a)(3) are unconstitutionally vague and overbroad and that the part of subsection (a)(1) which includes a "misdemeanor involving moral turpitude" is unconstitutionally vague. Since Pennsylvania law mandates the severability of this statute, *fn31" sections (b), (c) and (d) remain, as does a segment of section (a) of both statutes, which now reads:

 

"(a) The agency may deny all forms of financial assistance to any student: (1) Who is convicted by any court of record of a criminal offense which was committed after the effective date of this act which, under the laws of the United States or Pennsylvania, would constitute a felony."

 We must therefore treat the plaintiffs' contention that section (b) violates the Fourth and Fifth Amendments and is unconstitutionally overbroad. Since the major part of section (a) has been stricken from the statute, all that the university must do under section (b) is furnish PHEAA with the name and address of any student of whom it has knowledge that he has been convicted of a felony.

 Plaintiffs claim that the reporting section violates the students' Fifth Amendment right not to incriminate themselves must fail. So long as subsections (a)(2) and (a)(3) have been stricken from the statute, the only "compelled" *fn32" authorization which the student gives the university is to forward information it has regarding his felony convictions to PHEAA. The institution, of course, may report such information whether the student authorizes it or not.

 Plaintiffs' allegations that section (b) compels an unconstitutional seizure of their papers and effects and that the subsection is overbroad cannot succeed on this motion for summary judgment because we do not have sufficient undisputed facts on which to base a legal judgment. Cf. 6 J. Moore, Federal Practice para. 56.16 (2d ed. 1966).

 The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures * * *." In our minds, resolution of plaintiffs' claims in this area turn on a determination of whether the seizure of the institution's records of a student compelled by the statute is reasonable. The Supreme Court has been particularly sensitive to the need to balance interests to determine the reasonableness of a search when the challenged search has not been of the usual sort involving police seizing evidence of crime. See Wyman v. James, 400 U.S. 309, 91 S. Ct. 381, 27 L. Ed. 2d 408, 414-418 (1971); Camara v. Municipal Court, 387 U.S. 523, 536-538, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). The Court in Camara centered its discussion of reasonableness around the issuance of a warrant for area inspections of dwellings and said:

 

"* * * Unfortunately, there can be no ready test for determining reasonableness [of a search] other than by balancing the need to search against the invasion which the search entails. * * *" 387 U.S. at 536-537, 87 S. Ct. at 1735

 Given the state of the proof before us, we cannot make the balance necessary to determine the reasonableness of the search. We know that the invasion here is not so serious as the search of a home, but we have no proof as to the exact nature of the invasion.

 More importantly, plaintiffs have argued that the state has no need to "search" for this information, since it has superior alternative means for discovering any felony conviction. Plaintiffs have directed us to a statute, 28 U.S.C. § 534, which provides that the United States Attorney General shall collect crime and identification records and exchange them with authorized state officials. However, there is no evidence before us as to the extensiveness or general nature of any system which may have been established under that statute. Without facts sufficient to enable us to intelligently balance the governmental and private interests, we cannot determine the reasonableness of the alleged search and seizure and thus we must deny plaintiffs' motion for summary judgment on this issue.

 The same lack of facts mandates the same result as to plaintiffs' allegation that section (b) is overbroad in that it chills their exercise of First Amendment freedoms. Plaintiffs argue that the requirement that the university report any student felony conviction within its knowledge means that all university personnel will have to report any student conviction of which they learn. This, they say, will "chill" the studentteacher associational relationship and curtail the free interchange of ideas in the academic community.

 The Supreme Court has said, in assessing the constitutionality of another information-gathering scheme:

 

"* * * It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas, particularly in the academic community. * * *" Sweezy v. New Hampshire, 354 U.S. 234, 245, 77 S. Ct. 1203, 1 L. Ed. 2d 1311 (1957) (emphasis added).

 As we indicated above in our discussion of overbreadth, and as Sweezy reiterates, we do not need proof of actual chilling effect in order to find a statute overbroad. However, we do not have in section (b) the same clear-cut impairment of free association or free speech that existed in cases such as Keyishian v. Board of Regents, supra, and Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960), where the courts struck down statutes as overbroad because of their unmistakable tendency to chill. There is no such unmistakable tendency under section (b). Felony convictions are a matter of public record and the student must report any such convictions to PHEAA on his application for financial aid under penalty of another felony conviction. See 24 Pa. Stat. Ann. § 5104(9). Such outside pressures will markedly reduce the likelihood that a student will be trying to hide a felony conviction. While we can be relatively certain that those students who are hiding felony convictions will be deterred from discussing them, we cannot presume that this deterrence will carry over into discussions of other topics. *fn33"

 Not only do we have difficulty on the state of the record before us estimating whether section (b) really does have any chilling effect, we have substantial difficulty estimating the government interest in acquiring information of felony convictions in this manner, for the reasons outlined above in our discussion of plaintiffs' Fourth Amendment claims. *fn34" Where there are allegations that a statute is overbroad, we must be able to determine its probable deterrent effect on speech, association or other protected activities and we must be able to determine the government's interest in the intrusion which might justify that potential deterrence. See NAACP v. Alabama, 357 U.S. 449, 461, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958); American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 399, 70 S. Ct. 674, 94 L. Ed. 925 (1950). We cannot make those necessary determinations on the basis of the facts before us and thus must deny plaintiffs' motion for summary judgment on this ground as well.

 Plaintiffs' other contentions of unconstitutionality essentially are mooted by our decision that the major part of section (a) is unconstitutionally vague and overbroad. We therefore need not treat them here.

 APPENDIX A

 "§ 5104.1 Ineligibility for loan assistance

 (a) The agency may deny all forms of financial assistance to any student:

 (1) Who is convicted by any court of record of a criminal offense which was committed after the effective date of this act which, under the laws of the United States or Pennsylvania, would constitute a misdemeanor involving moral turpitude or a felony; or

 (2) Who has been expelled, dismissed or denied enrollment by an approved institution of higher learning for refusal to obey, after the effective date of this act, a lawful regulation or order of any institution of higher education, which refusal, in the opinion of the institution, contributed to a disruption of the activities, administration or classes of such institution; or

 (3) Who has been convicted in any court of record of any offense committed in the course of disturbing, interfering with or preventing, or in an attempt to disturb, interfere with or prevent the orderly conduct of the activities, administration or classes of an institution of higher education.

 (b) Each institution of higher education shall immediately furnish to the agency, the name and address of any student who is a resident of the Commonwealth of Pennsylvania who is expelled, dismissed or denied enrollment for the reasons set forth in clause (2) of subsection (a) of this section or of whom the institution of higher education has knowledge that he has been convicted of offenses as set forth in clauses (1) and (3) of subsection (a) of this section.

 (c) Nothing in this section shall be construed to limit the freedom of any student to verbal expression of individual views or opinions.

 (d) Any institution of higher learning which refuses to execute an agreement with the agency to comply with subsection (b) of this section shall be denied the status of an approved institution under the provisions of this act."

 "§ 5158.2 Denial of financial assistance

 (a) The agency may deny all forms of financial assistance to any student:

 (1) Who is convicted by any court of record of a criminal offense which was committed after the effective date of this act which, under the laws of the United States or Pennsylvania, would constitute a misdemeanor involving moral turpitude or a felony; or

 (2) Who has been expelled, dismissed or denied enrollment by an approved institution of higher learning for refusal to obey, after the effective date of this act, a lawful regulation or order of any institution of higher education, which refusal, in the opinion of the institution, contributed to a disruption of the activities, administration or classes of such institution; or

 (3) Who has been convicted in any court of record of any offense committed in the course of disturbing, interfering with or preventing, or in an attempt to disturb, interfere with or prevent the orderly conduct of the activities, administration or classes of an institution of higher education.

 (b) Each institution of higher education shall immediately furnish to the agency, the name and address of any student who is a resident of the Commonwealth of Pennsylvania who is expelled, dismissed or denied enrollment for the reasons set forth in clause (2) of subsection (a) of this section, or of whom the institution of higher education has knowledge that he has been convicted of offenses as set forth in clauses (1) and (3) of subsection (a) of this section.

 (c) Nothing in this section shall be construed as limiting or prejudicing the rights and prerogatives of any institution of higher education to institute and carry out an independent, disciplinary proceeding pursuant to existing authority, practice, and law, including but not limited to refusal to award, continue or extend any financial assistance to any individual because of any misconduct which in its judgment bears adversely on his fitness for such assistance, and further, nothing in this section shall be construed to limit the freedom of any student to verbal expression of individual views or opinions.

 (d) Any institution of higher learning which refuses to execute an agreement with the agency to comply with subsection (b) of this section shall be denied the status of an approved institution under the provisions of this act."

 24 Pa. Stat. Ann. § 5158.2, P.L. 383, § 2 (December 18, 1969), has been referred to throughout this litigation as 24 Pa. Stat. Ann. § 5158.1, which was the way it appeared in the 1970 pocket part of Purdon's Pennsylvania Statutes Annotated.


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