OPINION
I. Introduction.
Plaintiffs, American Future Systems, Inc., Steven Brubaker, Richard J. Wingert, W. Bruce Del Valle, Joan D. Varsics, Dennis C. Habecker, John B. Spillar and Kevin Graves, filed this action alleging violations of their constitutional rights and of rights granted by Pennsylvania law on February 5, 1981. Also on February 5, 1981, Plaintiffs filed a motion for a preliminary injunction which was denied by this Court in
American Future Systems v. Pennsylvania State University,
On October 18, 1982, Plaintiffs filed a motion for a preliminary injunction pursuant to Rule 65(a) of the Federal Rules of Civil Procedure and a supporting brief. By order of October 21, 1982, this matter was placed on the Court’s December 1982 list for trial and by order of November 10, 1982, the Court scheduled the hearing in this case to commence on a day certain, Thursday, December 2, 1982, a most unusual event because of this Court’s normal adherence to trailing dockets.
On November 29, 1982, at the pre-trial conference, Plaintiffs filed a concurred in request to amend the complaint and consistent therewith to amend the motion for a preliminary injunction. By order of December 2, 1982, the foregoing motions were granted.
The hearing on the Plaintiffs’ motion for a preliminary injunction commenced at ,11:00 A.M. on Thursday, December 2, 1982 and concluded at approximately 7:15 P.M. on Saturday, December 4,1982. On December 9, 1982, Plaintiffs petitioned the Court for leave to present additional relevant information to the Court and for leave to file supplemental findings of fact. The petitions were opposed on December 17, 1982. The motion for leave to present additional relevant information relates to certain events which occurred subsequent to the close of the trial. First, the proposed additional relevant information relates to AFS’s activities. Since AFS does not request injunctive relief in its own behalf, such evidence is not relevant to the present matter. Second, the additional information, since it is not subject to cross examination, may not properly be considered to be “evidence” in this proceeding. The motion to present additional relevant information will be denied. The Plaintiffs’ request for leave to file supplemental findings of fact will be granted although the supplemental proposed findings should have been presented in handwritten form by the close of the hearing. Also on December 9, 1982, the Plaintiffs presented a form of proposed injunction
Following are the Court’s findings of fact, discussion, conclusions of law, and order.
II. Findings of Fact.
1. The original Plaintiffs were American Future Systems, Inc. (“AFS”) Steven Brubaker, Richard J. Wingert, W. Bruce Del Valle, Joan D. Varsics, Dennis C. Habecker, John B. Spillar and Kevin Graves. (U)
2. Plaintiff AFS is a corporation incorporated under laws of the Commonwealth of Pennsylvania and having its principal place of business at 715 Lancaster AvenUe, Bryn Mawr, Pennsylvania, 19019. (U)
3. Edward M. Satell is the President of AFS. (U)
4. AFS is a private enterprise engaged in the business of retail sales of table china, tableware, crystal, and cookware through the presentation of group demonstrations of its merchandise to students at colleges and universities throughout the United States.
5. Plaintiff Kevin Graves is a student enrolled at the Pennsylvania State University (“Penn State” or “University”) who resides at 12 Jordan Hall which is a dormitory room in a University residence hall.
6. Richard J. Wingert is not a student at Penn State.
7. Joan D. Varsics is not a student at Penn State.
8. Dennis C. Habecker is not a student at Penn State.
9. John B. Spillar is not a student at Penn State and is no longer a Plaintiff in this litigation.
10. W. Bruce Del Valle is not a student at Penn State.
11. Defendants are Penn State, the Board of Trustees of Penn State (“Board of Trustees”), John W. Oswald and M. Lee Upcraft. (U)
12. Defendant Penn State is an institution of higher education established in 1855 by Act of the Pennsylvania Legislature as a corporation for educational purposes and operates under a charter consisting of various legislative acts supplemented by decrees of the Court of Common Pleas of Centre County, Pennsylvania.
13. The main campus of Penn State is located at University Park, Centre County, Pennsylvania, and the University maintains 21 other campuses situated in locations throughout the Commonwealth of Pennsylvania. (U)
14. Defendant Board of Trustees is the corporate body established by the charter of Penn State with ultimate control and responsibility for the management and government of the University. (U)
15. The Board of Trustees consists of 32 members, ten of whom are public officials of the Commonwealth of Pennsylvania. (U)
16. Defendant John W. Oswald is an individual residing at 639 Kennard Road, State College, Pennsylvania. (U)
17. Oswald is President and Chief Administrative Officer of Defendant University and has final authority, subject to revisions and orders by Defendant, Board of Trustees, to establish and implement policy concerning student affairs. (U)
18. Defendant M. Lee Upcraft is an individual residing at 188 Le Nor Drive, State College, Pennsylvania. (U)
19. Upcraft is Director of Residential Life Programs of Defendant University and is responsible for development, effectuation, and enforcement of policy concerning the residence halls of the University. (U)
20. Penn State owns and operates over 40 residence halls containing approximately 6900 rooms at its University Park Campus for approximately 12,050 students. (U)
21. The rooms in the residence halls generally are used by two or more students for sleeping, dressing, studying and socializing.
22. The students use common facilities for lavatories, study lounges, laundry, storage and organized educational and social functions. (U)
24. Virtually all of the study lounges within the residence halls are occupied and used as residential living units at the beginning of the fall term.
25. During the course of the fall term and winter academic term, as regular rooms become available, students are moved from the study lounges.
26. Penn State’s purpose in maintaining residence halls for students involves more than simply providing sleeping quarters for its students. Through programs and services provided to residence hall students, Penn State’s goal is to enhance the students’ academic experience and assist in the personal growth and development of the students.
27. Penn State conducts programs within the residence halls intended to assist students in dealing with personal problems and interests, including such matters as Alcohol Awareness, Diet and Nutrition, and Rape Prevention.
28. Penn State provides trained counselors, who are available to residence hall students for advice and counseling with respect to personal problems, academic matters and financial problems.
29. Penn State also provides formal and informal social and recreational activities for students in the residence halls. (U)
30. Arthur Constantino is the Associate Director of Residential Life Programs and is responsible, among other duties, for day-to-day supervision and administration of the programs and staff of the Residential Life Program. (U)
31. Within each residence hall building, rooms are organized on the basis of floors or parts of floors into units called a “house.” The house serves as the basic residential living, social and educational unit for the students living in those rooms. (U)
32. Each house is assigned a “resident assistant” (“RA”) who is a student living in that house. The RA is a member of the staff of the Office of Residential Life Programs of the University, and as compensation for these duties receives a credit for room and board charges and half of the tuition charges. (U)
33. In order to permit all of the activities which are ongoing in a residence hall to proceed in an orderly fashion, and to protect privacy and a study atmosphere, Penn State has adopted a set of regulations and procedures which control the use of the residence halls.
34. These regulations deal with (1) the establishment of “quiet hours” for study, (2) visitation within the residence halls, (3) canvassing within the residence halls, (4) fund raising by student organizations, (5) charitable solicitation by student organizations and (6) solicitation of money and sales of products and services in the residence halls.
35. Quiet hour restrictions require that all noise levels in rooms and hallways be reduced to an absolute minimum.
36. Certain areas within residence halls have predetermined quiet hour periods, while quiet hours within other areas of the residence halls are determined by a vote of the residents. The typical quiet hour period established by the vote of the residents is 7:00 p.m. to 7:00 a.m.
37. Visitors of the opposite sex must be escorted by the student resident to and from the student’s room.
38. Visitors of the same sex can enter a residence hall upon an invitation from a resident.
39. On November 19, 1982, Penn State adopted a new policy as follows:
REGULATIONS FOR THE SOLICITATION OF MONEY OR THE SALE OR SOLICITATION OF SALE OF PRODUCTS OR SERVICES IN UNIVERSITY RESIDENCE HALLS
1. Definitions.
(a) A residence hall is a University-owned building which contains rooms assigned to students for sleeping, dressing, studying and socializing, and which also contains common facilities and areas used by all students assigned to such residence halls, including common means of ingress and egress, common lavatories, common study lounges, common storage areas and areas used in common for organized educational and social functions.
(b) The solicitation of a sale of products or services shall include (1) any attempt to organize a meeting in a residence hall for the purpose of a demonstration or explanation of products or services which are for sale and (2) any demonstration, explanation or distribution of literature in a residence hall concerning products or services which are for sale.
2. Except as hereinafter provided, no person (including a student), firm, business entity, charitable organization, religious organization or other organization may solicit money or sell or solicit the sale of any product or service anywhere in a residence hall.
3. A student assigned to a room in a residence hall may invite a person, firm, business entity, charitable organization, religious organization or other organization to that student’s assigned room to solicit money or to sell or to solicit the sale of products or services with that student only. Such solicitation or sale must occur only in the assigned room of the student-invitor. The solicitation of money or the sale or the solicitation of a sale of products or services to any other student is prohibited anywhere in the residence hall.
4. Registered student organizations and residence hall house governments may solicit money or solicit the sale of products or services in a residence hall in accordance with the regulations governing Student Organizations at Paragraph B, Funding and Financial Affairs of Registered Student Organizations, subparagraph 3, Fund Raising on Campus and subparagraph 4, Solicitation on Campus.
5. Nothing in these regulations shall be deemed to preclude any solicitation or sale by mail, telephone or other communication media. (U)
40. Subparagraph 3, above, of the November 19, 1982 policy did not constitute a change in policy.
41. The new regulation of the solicitation of money and sale of products and services is different from the prior policy regulating commercial activities in only one material respect. Under the new regulations a vendor of products and services may not conduct a group demonstration, explanation, or distribution of literature concerning products or services which are for sale anywhere in a residence hall. Under the old policy a vendor could conduct such a group demonstration in a common area provided there was no solicitation to sell the product or service in that area.
42. A student may invite a vendor to that student's room to conduct a transaction with that student.
43. A vendor may solicit a sale or an invitation to a student’s room by telephone. Students’ telephone numbers are posted in the lobby of each residence hall.
44. A vendor may use the mail to solicit a sale or an invitation to a student’s room.
45. Vendors are permitted to advertise in the campus newspaper and on the campus radio station.
46. The housing and food service contract signed by all students states as follows: “The conducting of any business enterprise for personal profit is prohibited in and around the University-operated units.”
47. Residence halls are reserved for the use of the residents and their properly invited guests.
48. Under Penn State rules members of the general public are not permitted to enter the residence halls uninvited except that they may enter the lobby area to examine the list of telephone numbers of students and to call the students on the telephone.
49. A “no trespassing” sign is posted at or near the entrance of each residence hall on the Penn State Campus.
51. AFS does not engage in door-to-door solicitations within the residence halls.
52. American Prestige Series goods are generally sold at demonstrations or shows attended by a student resident who acts as hostess, an AFS sales representative and a number of invited guests.
53. With respect to its sales to college students, AFS seeks out a particular college student by telephone and asks her if she would serve as hostess for an American Prestige Series show on campus.
54. This communication is performed either through AFS’s central “booking” office in Bryn Mawr, Pennsylvania or through AFS’s sales representative assigned to a given geographic area.
55. At the time of the initial telephone contact, a student hostess is informed that, if she serves as a hostess for the show, she will receive a holiday in Florida or Las Vegas.
56. Before the scheduled show, a student agreeing to serve as hostess for such a demonstration receives a packet of information containing a number of invitations for guests and a description of what is involved at the show.
57. The student who has agreed to serve as hostess for a demonstration is asked to distribute invitations to other students.
58. It is AFS’s policy to attempt to have ten to 15 students in attendance at a sales demonstration. That number does not include men or women who have been to a prior AFS sales demonstration.
59. AFS instructs its representatives to comply with all safety, occupancy and visitation requirements within residence halls.
60. A sales demonstration put on by AFS generally proceeds in two parts: A demonstration of the American Prestige Series products including a comparison of those products with other merchandise and an explanation of why American Prestige products are superior to the other products and a sales portion where students are given an opportunity to purchase products on an installment plan basis.
61. AFS’s representatives are directed to follow a “cue card” format as set forth in Trial Exhibit PI.
62. AFS provides some consumer information in connection with its sales demonstrations with a view toward selling its products.
63. If a student decides to purchase American Prestige Series merchandise after attending an AFS presentation, the student is requested to sign a sales contract at that time. The price of a “package” of merchandise is in the approximate range of $300.00 to $800.00.
64. Generally, between ten and 20 percent of those students attending AFS sales presentations purchase merchandise.
65. An AFS sales contract contains a “code” at the bottom which consists of a number of letters. These letters and the explanation of them as set forth in the AFS manual are as follows:
“The codes are divided into four main categories. Each contract must be marked with four codes, one from each category. The codes are as follows:
Category I — Codes Describing Educational Institution
‘R’ — four-year college
‘J’ — junior college
‘N’ — nursing school
‘V’ — vocational school
Category II — Codes of Race and National Origin
‘G’ — white
‘M’ — black
‘O’ — Oriental
‘X’ — Mexican or Spanish
Category III — Codes of — Marital Status
‘C’ — married
‘S’ — not married
Category IV — Codes of Residence
‘D’ — dorm
‘A’ — apartment
‘P’ — with parents”
66. The classifications are used at least in part to determine which credit policy will be applied to a student purchasing AFS merchandise.
67. If a designated class of college students has a satisfactory payment record, each student within that class is eligible to have merchandise shipped before the first payment is due without meeting the AFS creditable test.
68. If a designated class of college students does not have a satisfactory payment record, a student within that class does not receive delivery of the goods until that student has established a satisfactory payment history.
69. Individuals within the class of white and oriental students in their sophomore year or later who attend a four year college or a nursing school are eligible for immediate delivery of AFS merchandise.
70. Individuals within the following classes are eligible only for deferred shipment of AFS merchandise: (a) all freshman students; (b) all junior college students; (c) all vocational college students.
71. With respect to Black, Mexican or Hispanic students attending four year colleges and nursing schools, the credit policy states that a reasonable effort should be made to have the sale made on a deferred shipment basis. However, a sales representative may offer such individuals immediate shipment if the sales representative deems it appropriate to do so under the particular circumstances.
72. The Florida vacation certificate includes only lodging in a hotel for a period of two nights and three days and does not include transportation or meals.
73. Amy Cervi is a student at Penn State residing within the residence halls, at room 355, McElwain Hall. Miss Cervi has two roommates who also reside in Room 355.
74. At sometime during the week of September 19, 1982, Miss Cervi received a telephone call from a representative of American Future Systems, Inc.
75. The AFS representative asked Miss Cervi to serve as a hostess for an AFS sales demonstration in her room and invite nine of her friends to attend.
76. The AFS representative told Miss Cervi that she would receive a free Florida vacation for serving as hostess for the AFS demonstration.
77. The AFS representative did not disclose to Miss Cervi that the vacation certificate was only for two nights and three days lodging or that transportation and meals were not included.
78. The AFS representative persuaded Miss Cervi to serve as a hostess for an AFS demonstration in her room and scheduled the demonstration for September 29, 1982.
79. AFS or its representatives scheduled 51 group presentations in Penn State’s residence halls for the last two weeks of September, 1977.
80. Penn State students have been denied permission to invite AFS to conduct group demonstrations in the privacy of an individual’s dormitory room despite the fact that that individual invited an AFS representative and other guests of that individual’s choosing to his or her dormitory room for the specific purpose of participating in and attending the AFS presentation. (U)
81. Penn State does not permit the solicitation of money or the solicitation and sale of products and services by any person, including students, to groups of students anywhere in the residence halls.
82. As justification for its policy, Penn State claims the following: (a) such activity could invade the privacy of students; (b) such activity could disrupt students while studying or sleeping; (c) such activity could disrupt the educational and personal developmental programs of the Office of Residential Life Programs; (d) such activity could disrupt the activities of student government; (e) such activity could disrupt organized and informal social and recreational activities of students; (f) to the extent that these disruptions would occur,
83. The real concern of Defendants has to do with monitoring the “high pressure salesmanship” of employees of AFS.
84. Penn State’s policy allows one-on-one solicitation while prohibiting group presentations for solicitation.
85. There is no practical distinction between the one-on-one presentation as opposed to the group presentation in terms of safety, security, and other purported state interests.
86. The potential for an AFS sales demonstration to disturb a quiet study atmosphere in the residence halls is substantially less than the potential to cause such disturbance of activities currently permitted by Penn State and engaged in by students with some frequency.
87. Loud, boisterous and disturbing activities which occur in the residence halls include “keg parties,” water fights, bull or rap sessions, “surf’s up”, birthday parties in the showers, “pennying in” occupants of a dormitory room and loud noise levels of stereos.
III. Discussion.
This is the second case before the Court involving AFS’s challenge of Penn State’s policies relating to commercial activities in its dormitories. In the first lawsuit, judgment was granted in favor of Penn State upholding its regulations against an attack that they violated AFS’s First Amendment rights.
American Future Systems, Inc. v. Pennsylvania State University,
AFS is a corporation whose principal business is the sale of cookware, china, crystal, and silverware through demonstrations of its merchandise at colleges throughout the United States. In its original complaint in this lawsuit, AFS sought at the invitation of individual students, to be permitted to present sales demonstrations in common areas within Penn State’s residence halls, to disseminate commercial information to groups of students through sales demonstrations in individual dormitory rooms, and to consummate sales to students in the residence halls.
During the pendency of the American Future Systems I litigation, and at the beginning of this lawsuit, Penn State’s policy was such that:
(1) AFS may conduct group demonstrations in specified common areas of each residence hall; (2) following those demonstrations a student may invite an AFS representative to the student’s room to purchase AFS goods; (3) AFS is free to solicit invitations to individual students’ rooms at the group demonstrations or by telephone or mail; (4) AFS is not permitted to conduct group demonstrations in an individual student’s dormitory room; (5) AFS is not permitted to consummate sales in individual dormitory rooms to a purchaser other than the occupant of the room; (6) AFS is not permitted to conduct group solicitations of sales in the common areas of residence halls; and (7) AFS is not permitted to consummate commercial transactions in the common areas of residence halls.
After the Court of Appeals issued its opinion in
American Future Systems II
reversing this Court’s grant of summary judgment,
American Future Systems, Inc. v. Pennsylvania State University,
After learning of the
Krishna
decision, Penn State concluded that its dormitories were also not “public forums” for First Amendment purposes.
See also American Future Systems I,
While all “common area” commercial activities are effectively prohibited by Penn State’s Dormitory Solicitation Regulations, the Regulations do not change Penn State’s former policy regarding commercial activities in an individual student’s room.
Compare
Dormitory Solicitation Regulations at ¶ 3
with American Future Systems II,
As a result of the promulgation of Penn State’s new Dormitory Solicitation Regulations, AFS and the student Plaintiffs have determined not to litigate “common rooms” issue in this case. See Petition of Plaintiffs for Leave to Amend or Supplement Complaint and Motion for Preliminary Injunction, Doc. No. 150, filed November 29, 1982, and Orders granting Petition, Doc. Nos. 175, 176, filed December 2, 1982. Presently, the sole issue in this litigation is whether or not Penn State’s Dormitory Solicitation Regulations with respect to limitation of commercial activities in individual students’ dormitory rooms violate the Plaintiffs’ constitutional rights. The Plaintiffs have challenged the procedure by which Penn State’s November 19, 1982 Dormitory Solicitation Regulations were promulgated. In particular, the Plaintiffs urged at the preliminary injunction hearing that the Regulations be stricken because there was no opportunity for students to participate in the drafting of the Regulations. Because the particular sections of the Regulations now at issue are not different from the prior regulations, and because there was no challenge to the process of promulgation of the prior regulations, this argument of the Plaintiffs may summarily be rejected.
The standards for a preliminary injunction that maintains the
status quo
are set forth in
Continental Group, Inc. v. Amoco Chemical Corp.,
To support a preliminary injunction, the moving party must demonstrate that irreparable injury will occur if relief is not granted to maintain the status quo until a final adjudication on the merits can be made and that there is a reasonable probability of eventual success on the merits. In addition, the Court must weigh the possibility of harm to the nonmoving party as well as to any other interested persons and, when relevant, harm to the public. (Footnotes omitted).
See Delaware River Port Authority v. Transamerican Trailer Transport, Inc.,
A. Irreparable and Immediate Harm.
To support the grant of preliminary injunctive relief, the moving party must show that irreparable harm will occur if preliminary relief is denied.
E.g. Continental Group, Inc. v. Amoco Chemical Corp.,
1. AFS’s rights.
AFS’s rights in this litigation are concededly derivative. In essence, AFS’s rights exist only if the individual student Plaintiffs have and exercise the right to invite AFS into their dormitory rooms to conduct commercial activities. Thus, injury to AFS alone from being denied the ability to consummate business transactions will not be sufficient to justify issuance of a preliminary injunction. Indeed, it appears that AFS takes the position in this litigation, at least with respect to the present motion for a preliminary injunction, that the rights of the individual students, and not those of AFS are primarily of the Court’s concern. See Plaintiffs’ Trial Brief, Doc. No. 152, filed November 29, 1982; Plaintiffs’ Proposed Preliminary Injunction Order.
It is also questionable whether AFS could show the requisite “irreparable harm.” To
2. The Student Plaintiffs’ Rights.
The student Plaintiffs residing in the residence halls contend they have the constitutional right to serve as host or hostess for and participate in informational and sales demonstrations in their private dormitory rooms, including the right to complete a sales contract at that time in a group setting. With respect to the restrictions Penn State’s Dormitory Solicitation Regulations place on the use to which the students may put their dormitory rooms, the students invoke their free speech, associational, privacy, and due process rights as well as certain claimed rights under Section 504-A of the Pennsylvania Landlord Tenant Act, 68 P.S. § 250.554.
The students’ claim of interference with their privacy rights was expressly rejected by the Court of Appeals in
American Future Systems II.
Therein, the Court of Appeals stated that it was “unwilling to extend the constitutional right of privacy to commercial transactions [in students’ dormitory rooms] completely unrelated to fundamental personal rights...”
The Court must, nonetheless, determine whether the students’ First Amendment speech and associational rights are otherwise likely violated by the Penn State Dormitory Solicitation Regulations and, if so, whether the students suffer irreparable injury. It is likely that the free flow of ideas resulting from attendance at group commercial demonstrations and solicitations is protected by the First Amendment. The right to serve as host or hostess for such demonstrations is also likely protected.
B. Likelihood of Success on the Merits.
An essential element of the student Plaintiffs’ request for a preliminary injunction is that they demonstrate a “reasonable probability of eventual success on the merits.”
Continental Group, Inc.
v.
Amoco Chemical Corp.,
There was, in the view of the Court of Appeals, an insufficient record to determine whether or not Penn State’s Dormitory Solicitation Regulations with respect to group commercial solicitation in students’ private dormitory rooms served “significant governmental interests” and nonetheless left open “ample alternative channels for communication.”
American Future Systems II,
It is well established that the First Amendment does not guarantee the rights of speech and association at all times and places or in any manner that may be desired.
E.g. Adderley v. Florida,
Penn State’s original Dormitory Solicitation Regulations with respect to “common room” activities were “content based” regulations which are, absent a compelling state interest, prohibited.
American Future Systems II,
Penn State’s Dormitory Solicitation Regulations with respect to commercial activities are void unless they “leave open ample alternative channels for communication of information.”
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council,
Even assuming that sufficient “alternative channels” for communication of the information exist Penn State’s time, place and manner regulations will be upheld only if they serve a “significant governmental interest”.
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council,
Penn State’s enunciation of its alleged “significant governmental interest” is unconvincing. Penn State’s Dormitory Solicitation Regulations clearly allow a dormitory resident to invite to his room, expressly for purposes of commercial solicitation, any
First, Penn State expresses concern over the invasion of students’ privacy rights. Because these privacy rights are individual rights of the students, it is absurd to think that these rights could not be waived by the students. Second, with respect to disruption of students while studying or sleeping, there appear to be many “permitted” activities in the dormitories which are substantially more disruptive. Furthermore, there is no evidence that AFS or any other commercial organization would refuse to comply with reasonably drafted regulations to prevent such disruption. With respect to the concern of Penn State that group solicitations could disrupt the educational and personal development programs in the dormitories, no such potential for disruption has been demonstrated. This justification seems particularly contrived where business and solicitation activities might well be just the sort of “life training” which should take place in a dormitory. The Court is unable to envision a situation where group solicitation activities of the sort contemplated by AFS would disrupt student government or either organized or informal social and recreational activities. Penn State is concerned that the imagined disruptions are inconsistent with the purposes to which residence halls are dedicated and that greater frequency of solicitation activities would lead to such disruptions. This “floodgate” argument is not persuasive in light of the evidence.
In sum, Penn State’s concerns are not valid. The real concern of Penn State appears more to be related to the “high pressure” sales tactics of AFS than group solicitation in general. This concern of Penn State may not properly be addressed by a wholesale limitation on group solicitation activities. There are, no doubt, appropriate avenues of relief should AFS’s commercial activities be proven either illegal or improper.
As drafted, Penn State’s regulations do not address the anticipated problems. Significantly, Penn State’s present regulations are not reasonably drafted to prohibit disruptive activities but, instead, presume disruption will result. Because there is no practical distinction between one-on-one solicitations and group solicitations in terms of safety, security, and other purported state interests, a wholesale preclusion of group solicitations is probably grossly over-broad.
For all of the foregoing reasons, Penn State will likely not establish at trial that its Dormitory Solicitation Regulations “serve a significant governmental interest.” There is, therefore, a reasonable probability that the students will succeed on the merits in this litigation.
C. Balancing of Equities and Protection of the Public Interest.
The Court must consider the possibility of harm to the non-moving party and may, in appropriate situations, consider harm to the public interest.
Continental Group, Inc. v. Amoco Chemical Corp.,
At the same time, the student Plaintiffs have identified substantial and legitimate constitutional rights which are being impinged upon by Penn State’s Regulations. This Court has no doubt as to the sincerity
Penn State is a public university whose residence halls house over 12,000 students. Because the challenged regulations directly affect the free speech and associational rights of all of those students the public interest is, therefore, decidedly implicated in this case. Penn State’s correlative interest in attempting to protect its students from sharp business practices has expressly and consistently been rejected. First, the principle of
in loco parentis
appears no longer to apply to college students.
Bradshaw
v.
Rawlings,
In sum, the public interest would be served by issuance of an injunction.
D. Scope of Relief.
The Plaintiffs have requested a preliminary injunction directing the Defendants “to permit persons residing in University residence halls to have business invitees and social guests of their choosing come to their assigned room(s) for any lawful purpose, at reasonable times and subject to other health, safety, security, fire, occupancy, and/or visitation regulations, as applied to social guests under present University regulations.” In essence, the Plaintiffs request that the Dormitory Solicitation Regulations regarding commercial solicitation in individual students’ dormitory rooms be deemed unenforceable as against all students residing in Penn State’s residence halls.
As stated previously, a preliminary injunction is only appropriate where the movants have established a reasonable probability of ultimate success on the merits in the litigation.
Continental Group v. Amoco Chemical Corp.,
The Plaintiffs’ request for a declaratory judgment is based on the Declaratory Judgment Act, 28 U.S.C. § 2201. Section 2201 provides that “In a case of actual controversy ... any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration...” The “case or controversy” requirement under Section 2201 is no less stringent than in any other federal lawsuit.
Alvater v. Freeman,
The issue being litigated at this juncture is whether or not Penn State’s Dormitory Solicitation Regulations may be enforced to preclude dormitory residents from inviting both commercial sales representatives and other students simultaneously to the student’s dormitory room for purposes of a group demonstration and sale. It is quite clear that the Declaratory Judgment Act may not be used to secure a judicial deter
The only student Plaintiffs who have a “live” controversy are those named student plaintiffs who are presently residing in Penn State’s residence halls and who desire to serve as host or hostess for a group demonstration and solicitation. Kevin Graves is the only such named student plaintiff who has standing to sue and there is some doubt that he wishes to host one of the demonstrations although he obviously is serious about asserting his right to do so.
On the first day of the preliminary injunction hearing, December 2, 1982, Plaintiffs filed an oral application for Marc Bogutz, a Penn State student who resides in a fraternity house, and Kathryn Johnson, a freshman Penn State student who resides in a Penn State dormitory, to be allowed to intervene as Plaintiffs. Because there was objection to the request and because the Defendants were caught by surprise, the Court declined to grant the motion. Plaintiffs were directed to file a formal written motion with a modest supporting brief if they desired to pursue the matter. On December 14, 1982, Plaintiffs filed a motion and memorandum of law to join Kathryn Johnson as an additional Plaintiff. The motion is not yet ripe for disposition by the Court and, therefore, will not be acted upon at this time. Apparently recognizing that Marc Bogutz had no standing, Plaintiffs have not filed a motion that he be added as a party Plaintiff.
This lawsuit was not brought as a class action, and there is no request pursuant to Rule 23 for certification of a class of student Plaintiffs residing in Penn State’s residence halls. Because there is no student plaintiff class, relief to any person or group of persons beyond those who have actual standing would be improper.
Cf. Workman v. Mitchell,
For the foregoing reasons, absent class certification or a request for such certification,
Kahan
v.
Rosensteil,
IV. Conclusions of Law.
1. Kevin Graves, the only named Plaintiff who resides in Penn State’s residence halls, is the only Plaintiff who has standing to request preliminary injunctive relief.
2. Kevin Graves would be irreparably harmed if a preliminary injunction is not issued.
3. Kevin Graves has a reasonable probability of succeedings on the merits in this litigation.
4. The “equities” weigh heavily in favor of granting preliminary injunctive relief in favor of Kevin Graves.
5. The public interest will be served by granting preliminary injunctive relief to Kevin Graves.
An appropriate order will be entered.
ORDER
1. The motion of the Plaintiffs for leave to present additional relevant information to the Court is denied.
2. The motion of the Plaintiffs to file supplemental findings of fact is granted.
4. The motion of Kevin Graves for a preliminary injunction is granted.
5. The request of all other Plaintiffs for preliminary injunctive relief is denied.
6. Pending final hearing or further order of this Court, Defendants John W. Oswald, M. Lee Upcraft, the Board of Trustees of the Pennsylvania State University, Pennsylvania State University, and its employees and agents, are hereby enjoined from enforcing Paragraph 3 of the “Regulations for the Solicitation of Money or the Sale or Solicitation of Sale of Products or Services in University Residence Halls,” promulgated November 19, 1982, with respect to Kevin Graves, the only named individual student Plaintiff who resides in Penn State’s residence halls.
7. This case is hereby placed on the Williamsport July 1983 trial list for disposition on the merits.
8. A settlement conference will be held in this case in Williamsport on Wednesday, June 1, 1983, at a time to be announced.
9. All discovery in this case shall be completed on or before June 15, 1983.
10. A final pre-trial conference will be held in this case in Williamsport on Tuesday, July 5, 1983.
11. Juries will be drawn in Williamsport on Wednesday, July 6, 1983 for those cases on the July 1983 list to be tried by a jury.