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STEVEN H. BRUSH v. PENNSYLVANIA STATE UNIVERSITY BOARD TRUSTEES PENNSYLVANIA STATE UNIVERSITY (06/29/77)

decided: June 29, 1977.

STEVEN H. BRUSH, ON BEHALF OF HIMSELF AND AS REPRESENTATIVE OF A CLASS, MICHAEL J. MULLEN, ON BEHALF OF HIMSELF AND AS REPRESENTATIVE OF A CLASS, AND KIMBERLY GETZ, ON BEHALF OF HERSELF AND AS REPRESENTATIVE OF A CLASS, APPELLANTS,
v.
THE PENNSYLVANIA STATE UNIVERSITY BOARD OF TRUSTEES OF THE PENNSYLVANIA STATE UNIVERSITY, JOHN W. OSWALD, INDIVIDUALLY AND AS PRESIDENT OF THE PENNSYLVANIA STATE UNIVERSITY, M. LEE UPCRAFT, INDIVIDUALLY AND AS DIRECTOR OF RESIDENCE HALL PROGRAMS OF THE PENNSYLVANIA STATE UNIVERSITY



Appeal from the Decree of the Court of Common Pleas, Civil Action, Equity, of Centre County, at No. 75-950.

COUNSEL

Virginia B. Eisenstein, State College, for appellants.

Grant H. Fleming, State College, with him Dellbert J. McQuaide, State College, for appellees.

Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files an opinion in support of affirmance in which Jacobs and Van der Voort, JJ., join. Hoffman, J., files an opinion in support of a reversal in which Cercone and Spaeth, JJ., join. Watkins, President Judge, did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 249 Pa. Super. Page 166]

The six Judges who heard this case being equally divided the decree of the court below is affirmed.

PRICE, Judge, in support of affirmance:

Appellants seek an injunction to restrain enforcement of certain University regulations which prohibit door-to-door canvassing in a campus dormitory if a majority of the residents agree that canvassing should be prohibited. After full and final hearings in the lower court, a decree nisi was entered on February 4, 1977, denying the relief sought by appellants. This appeal was taken from the final decree entered by the court below on April 2, 1976. We would affirm the order of the court below.

The appellants' main premise is based upon an equation of the facts of the instant case with a traditional door-to-door canvassing situation. We reject this analogy and would adopt the rationale of the lower court.

In its adjudication, the lower court concluded that the hallways on the upper floors of a dormitory are not akin to public streets and that residents do have certain justifiable privacy interests in these "common areas." The lower court explained its rejection of the "public street" concept as follows:

[ 249 Pa. Super. Page 167]

"Plaintiffs place heavy reliance on the case of James, et al v. Nelson, 349 F.Supp. 1061 (N.D.Ill.1972). The language contained therein is most favorable to the plaintiff's contention in this case. We choose not to follow this decision for the reason that the Court in that case was not made aware and did not consider the physical aspects of the dormitory structures. We believe it to be unrealistic to compare the upper floor hallway and bedroom door of a dormitory resident to be the same as a public street and the front door of a private dwelling. We prefer to adopt the rationale that the upper floor areas of the residence halls are private living quarters . . . . This position is supported in the case of National Movement For The Student Vote v. Regents of the University of California, 123 Cal.Reporter 141 (1975); see also Futrell, et al v. Ahrens, et al, Supreme Court of New Mexico (Aug. 20, 1975)" (Printed Record, hereinafter PR, at 323a-24a).

It is well established that while a chancellor's inferences and ultimate conclusions from primary facts are always open to review, they will not be set aside unless the reviewing court can say that they are unreasonable and unjustified. Bohachevsky v. Sembrot, 368 Pa. 228, 81 A.2d 554 (1951). We find the lower court's analysis persuasive and its inferences reasonable.

At the hearing, a substantial portion of the testimony related to the physical layout of the upper level dormitory floors. Based on this testimony, the lower court found, in part, as follows: Each floor contains a series of private or semi-private rooms which abut and open on a common hallway. Lavatories, study lounges, storage areas for linen and personal belongings, party line telephones, and full length dressing mirrors, all of which are located on or adjacent to the hallways, are used in common by floor residents. The evidence clearly established that students must leave their individual bedrooms and traverse the hallway to utilize these various facilities, the functions of which are, for the most part, traditionally private in nature.

In Lehman v. City of Shaker Heights, 418 U.S. 298, 302, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770 (1974), the Supreme Court

[ 249 Pa. Super. Page 168]

    declared that "open spaces and public places differ very much in their character, and before you could say whether a certain thing could be done in a certain place you would have to know the history of the particular place." This history is equally relevant in determining whether an area should initially be considered an open space and, therefore, whether appellants' "public street" analogy is appropriate in the instant case. It is important to remember that "[t]he State, no less than a private owner of property, has the power to preserve the property under its control for the use to which it is lawfully dedicated." Adderley v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966); see also Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976).

Prior to the adoption of the current regulations on February 15, 1975, no canvassing was permitted in any residence hall. Even after adoption, these new regulations should not be viewed in a vacuum. The canvassing regulations comprise only one segment of the University's rules and regulations relating to a person's rights to use a dormitory in which he is not a resident. A review of the pertinent regulations demonstrates a continuing attempt by the University to provide the optimum balance between an individual resident's justifiable expectations of privacy and other residents' rights to free speech and assembly. These regulations are reviewed below.

Every entrance and exit door in a residence hall is posted with the following notice:

"NO TRESPASSING

PRIVATE RESIDENCE

This building is restricted to persons assigned as residents, their invited guests and authorized University personnel." (NT at 161a; Defense Exhibit No. 3, PR at 276a).

A copy of the 1975-76 Student Handbook containing, inter alia, the regulations governing dormitory use was introduced at the hearing held on October 16, 1975. (Defense Exhibit No. 5, PR at 277a-303a). In addition to regulating canvassing,

[ 249 Pa. Super. Page 169]

    these rules prohibit fund raising,*fn1 solicitation,*fn2 and contribution drives*fn3 on a door-to-door basis in residence halls and regulate visitation rights of individuals who are nonresidents of the dormitory which they seek to visit. Moreover, they provide that floor residents are jointly liable for damages occurring to the common areas.

With regard to visitation rights, University policies are designed to provide the maximum freedom of association while preserving, to the extent possible, other students' rights to privacy. One of the factors to be considered by students in selecting the particular dormitory in which to live is the opposite sex visitation policy*fn4 of the dormitory. While twenty-four hour visitation is permitted in the majority of dormitories, a student who desires more privacy may choose to reside in a nonvisitation or limited visitation dormitory. Opposite sex visitation is prohibited in nonvisitation dormitories and restricted to the hours of 7 a. m. to midnight in limited visitation dormitories. (Defense Exhibit No. 5, PR at 278a-79a).

Moreover, where visitation rights of any type exist, visitors are permitted in rooms only if there is no objection from

[ 249 Pa. Super. Page 170]

    roommates. Opposite sex visitors must be escorted to and from a student's room. While same sex visitors apparently are not required to be escorted, they are not permitted to wander through dormitories other than their own. (Defense Exhibit 5, Additional Regulations ยง C; PR at 303a; see also NT at 221a-22a). Testimony demonstrated that the visitation policy is enforced by resident assistants who supervise a limited number of students and therefore know those who live within their area of control. Same sex visitors who are unknown to the resident assistant are challenged and must have a specified destination within the area. If they do not, they are requested to leave and, if students, are subject to disciplinary action.

The above discussion, while not dispositive of the case, amply demonstrates that appellants have avoided the real issue in this case by their conclusory equation of an upper level dormitory hallway with a public street.*fn5 While it is true that the first amendment protects the rights of the minority as well as those of the majority, it is well established that the University could ...


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