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BAIR v. SHIPPENSBURG UNIVERSITY

September 4, 2003

WALTER A. BAIR AND ELLEN WRAY, PLAINTIFFS
v.
SHIPPENSBURG UNIVERSITY AND ANTHONY F. CEDDIA IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES, DEFENDANTS



The opinion of the court was delivered by: John E. Jones, District Judge

ORDER

This case presents us with the difficult question of whether portions of an obviously well-intentioned student code of conduct enacted by a state university can withstand First Amendment scrutiny. Based upon our past experiences in public office, this Court has an acute awareness of the challenges facing the administrators of our colleges and universities. Campus underage and binge drinking have reached epidemic proportions. Student against student violence, including sexual assaults, is a constant concern. Parents and administrators know well that when college students reach the age of majority, this milestone does not instil instant maturity. Indeed, Page 2 many students continue to demonstrate a reckless disregard not only for their own safety, but fail to respect the rights of their peers.

The Court is also aware, however, that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what will be orthodox in politics, nationalism, religion, or matters of opinion or force citizens to confess by word or act their faith therein." West Virginia Board of Education v. Barnette. 319 U.S. 624, 642(1943).

Against this backdrop, we must determine whether Anthony P. Ceddia, as the President of Shippensburg University, should be enjoined from enforcing provisions of a student code which unquestionably was enacted with the noble purpose of making that institution a better place to live and learn.

Pending before the Court is a motion to dismiss filed by the defendant, as well as a motion for a preliminary injunction filed by the plaintiffs. For the reasons that follow, the Motion to Dismiss will be granted in part and denied in part, and the Motion for a Preliminary Injunction will be granted in part.

I. BACKGROUND:

A. Procedural History

The plaintiffs, Walter A. Bair ("Bail") and Ellen Wray ("Wray") (collectively, Page 3 "Plaintiffs"),*fn1 initiated this action by filing a complaint against the defendants, Shippensburg University ("the University" or "Shippensburg University") and Anthony F. Ceddia*fn2 ("President Ceddia" or "Defendant")(collectively, "Defendants"), on April 22, 2003. Plaintiffs challenge the constitutionality of the University's speech policies based upon their contention that the policies violate students' First Amendment rights to free speech, free association and free exercise of religion.

On June 23, 2003, Defendants filed a motion to dismiss Plaintiffs' Amended Complaint. Thereafter, on July 23, 2003, Plaintiffs filed a motion for a preliminary injunction, seeking an order from this Court which would prohibit Defendants "from enforcing the speech-restrictive policies contained within the University's Code of Conduct and within its Racism and Cultural Diversity Policy Statement." (Pis.' Mot. Prelim. Inj. at 1).

Oral argument regarding the pending motions was held on August 25, 2003. Subsequent to the completion of day's proceedings, we issued an order dismissing Shippensburg University as a defendant in this action. (See Order dated August 25, 2003). Page 4

B. The University Speech Code

Plaintiffs frame their arguments as to the constitutionality of the University's speech policies by initially characterizing two University publications, the University Catalog and the University Student Handbook, as either the University Speech Code or as the Swataney when considered together in their entirety. (First Amended Complaint at ¶ 7). We shall do the same herein; the totality of the University's policies relevant to our analysis shall be referred to as the University Speech Code, the Code, or as the Swataney.

The objectionable portions of the University Speech Code as cited within the parties' submissions are set forth below.*fn3

The University Catalog contains a Code of Conduct which provides the following in its Preamble:

Students, as members of the academic community, are encouraged to engage in a sustained, critical and independent search for knowledge. The University community supports this endeavor by developing policies and procedures that safeguard the freedoms necessary for the pursuit of truth and knowledge. The University will strive to protect these freedoms if they are not inflammatory or harmful toward others. It is therefore expected that students will exercise these freedoms in a manner that does not infringe upon the rights of others in the community. Behavior that interferes with the living conditions, co-curricular activities, working environments, teaching mission, research activities, study conditions, and/or administrative functions of the University is unacceptable. Acts of intolerance directed toward other community members will not be condoned. This is especially Page 5 true, but not limited to, acts of intolerance directed at others for ethnic, racial, gender, sexual orientation, physical, lifestyle, religious, age, and/or political characteristics.
(Defs.' Br. Supp. Mot. Dis. Ex. 1 pg. 18)(emphasis added).

The Community Regulations section of the Code of Conduct distinguishes "primary rights" and "secondary rights" within the University setting:

Students have certain rights related to their achievement of academic success and personal satisfaction. With these rights comes a reciprocal responsibility to insure that others have similar rights. Therefore, the University strives to strike a balance between maximum freedom and necessary order. Primary rights, especially for University owned campus housing residents, include:
A. The right to pursue academic activities without unreasonable disruption.
B. The right to be free from harassment, intimidation, physical harm, and emotional abuse.
C. The right to a reasonable level of quiet, and correspondingly, the right to sleep and study without unreasonable disruption.
D. The right to a reasonably clean, well maintained, and safe environment.
Secondary rights, especially for University housing residents are those that, while protected, shall not infringe upon the reasonable exercise of others' primary rights. These include:
A. The right to host visitors. Visitors shall not interfere with a roommate's exercise of his/her rights, nor violate the rights of other residents. Visitors must follow all rules and regulations.
B. The right to express a personal belief system. The expression of one's beliefs should be communicated in a manner that does not provoke, harass, intimidate, or harm another.
C. The right to follow the terms of one's lifestyle provided it does not unreasonably interfere with the rights of others. Page 6
D. The right to a reasonable level of personal privacy.
(Defs.' Br. Supp. Mot. Dis. Ex. 1 pg. 22)(emphasis added). Also objected to within the Community Regulations portion of the Code of Conduct is a provision instructing readers that "[n]o person shall participate in acts of intolerance that demonstrate malicious intentions toward others." (Defs.' Br. Supp. Mot. Dis. Ex. 1 pg. 23)(emphasis added).

The University has propounded the Racism and Cultural Diversity Statement which provides as follows:

As an institution of higher learning, Shippensburg University is committed without qualification to all aspects — moral, legal and administrative — of racial and cultural diversity. It is the unequivocal position of Shippensburg University to prohibit racism/ethnic intimidation and harassment; and to affirm cultural diversity, social justice and equality.
Racism shall be defined as the subordination of any person or group based upon race, color, creed or national origin. It shall be a violation of this policy for any person or group to maliciously intend to engage in any activity, (covert or overt that attempts to injure, harm, malign or harass), that causes the subordination, intimidation and/or harassment of a person or group based upon race, color, creed, national origin, sex, disability or age.
Shippensburg University's commitment to racial tolerance, cultural diversity and social justice will require every member of this community to ensure that the principles of these ideals be mirrored in their attitudes and behaviors.
(Defs.' Br. Supp. Mot. Dis. Ex. 2)(emphasis added).

University policy provides that undergraduate students shall pay a student Page 7 activity fee "to fund the numerous extracurricular student activities on campus, including men's and women's intercollegiate athletics, intramural athletics, sport clubs, classes and councils, performing art groups, publications groups (newspaper [Slate], campus radio station [WSYC]), [] the Activities Program Board[,]" and other recognized student organizations and clubs. (First Amended Complaint at ¶ 18). According to the First Amended Complaint, the provisions of the Code of Conduct as well the University Racism and Cultural Diversity Policy apply to student organizations as well as to individuals within the Shippensburg campus community:

No group, or its members, shall violate any of the rules and regulations published by the University, including those comprising the student code of conduct.
(See First Amended Complaint at

Finally, Plaintiffs object to certain restrictions set forth by the University in the form of a letter ("the Letter"), dated March 25, 2003, from President Ceddia to Members of the Campus Community wherein he advises recipients that the University has "reserved certain spaces on campus" for organized demonstrations and rallies, limited to "the area by the gazebo between the Library and Franklin Science Center and the triangular lawn defined by the sidewalks leading to the Cumberland Union Building facing Franklin Science Center." (Complaint Ex. C). The Letter further informs its recipients that in the event of inclement weather, "demonstrators must reserve rooms ...


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