The opinion of the court was delivered by: John E. Jones, District Judge
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.
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
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
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
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
C. The right to follow the terms of one's lifestyle
provided it does not unreasonably interfere with the
rights of others.
D. The right to a reasonable level of personal
(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
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
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
(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 ...