David BAYLESS et al., Plaintiffs-Appellants, v. Floyd MARTINE, Dean of Students, Southwest Texas State University, et al., Defendants-Appellees.
No. 28865.
United States Court of Appeals, Fifth Circuit.
June 24, 1970.
430 F.2d 872
Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.
ORDER
PER CURIAM:
On December 5, 1969, the appellants moved for an expedited hearing on appeal and for appropriate relief pending disposition of the appeal. On the same day the appellees were notified of the motion and given an opportunity to respond.
Upon review of the record, including the transcript of the hearing upon the preliminary injunction, and considering the injury that the appellants will suffer if they are suspended from Southwest Texas State University, it is ordered that the denial of preliminary injunction by the Court for the Western District of Texas, Austin Division, be stayed and that the appellees herein be enjoined from suspending the appellants from Southwest Texas State University pending the disposition of this appeal and subject to further orders of this Court.
COLEMAN, Circuit Judge.
I respectfully dissent from the entry of the foregoing order.
With deference to the views of my Colleagues, I am of the opinion that no substantial First Amendment question is presented by this case. Southwest Texas State University made no effort to interfere with the free expression of opinion; rather, it attempted to control its own campus to the extent of designating the time and the area in which the demonstration was to occur. The students flouted this effort and held the demonstration when they pleased and where they pleased. I believe that the University authorities had the right to specify time and place for this demonstration so as to avoid undue interference with the rights of 9,500 other students.
Furthermore, I dissent for reasons of sound public and judicial policy. I am opposed to the courts taking over, by emergency orders, the administration of college campuses in this Country, especially where, as here, the petitioners have had an evidentiary hearing before the District Court and have there been denied any relief.
Crawford C. Martin, Atty. Gen. of Texas, James C. McCoy, W. O. Shultz, Pat Bailey, Asst. Attys. Gen., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., J. C. Davis, Asst. Atty. Gen., for appellees.
Clark, Thomas, Harris, Denius & Winters, Edward Clark, Austin, Tex., for appellee, Board of Regents, State Senior Colleges.
Before THORNBERRY, DYER and CLARK, Circuit Judges.
CLARK, Circuit Judge:
As a result of participation in a Viet Nam Moratorium demonstration in November 1969, ten students of Southwest Texas State University (SWT) were suspended. The students initiated an action in the district court seeking temporary, preliminary and permanent injunctive relief prohibiting their suspension and other disciplinary measures; a
The Viet Nam Moratorium, a nationwide movement to provoke and promote demonstrations against the war in Viet Nam, held its first public protest on October 15, 1969. The SWT segment of this October event was to consist of an hour long program of short speeches. Because of the nature of the program it was felt that an auditorium would best meet the needs of the group. The college officials authorized the program to take place in the Fine Arts Auditorium from 11:00 A.M. to 12:00 Noon. Without authorization and contrary to regulations, demonstrations were held from 10:00 A.M. to 11:00 A.M. and from 12:00 Noon to 1:15 P.M. in the Huntington Statue area which is located between two classroom buildings. Both faculty and students subsequently complained that the demonstrations at these hours in the statue area disturbed and disrupted regularly scheduled classes. The Moratorium group‘s over-all national plan called for successive monthly demonstrations of increasing length until the war in Viet Nam was settled. The November 13, 1969 event for which the SWT appellant-students before us today were suspended was the second of these projected moratoria.
The Students’ Rights chapter of the SWT handbook, known as “Hill Hints“, contained a regulation governing the holding of meetings on campus which had been adopted by The Student Rights Committee of the Student Senate. The text of the regulation follows:
“STUDENT EXPRESSION AREA
Students and University personnel may use the Student Expression Area located on the grass terraces in front of Old Main between the hours of 12:00 noon to 1:00 p. m., and from 5:00 to 7:00 p. m. Reservations for the Student Expression Area are made through the Dean of Students Office and must be made at least 48 hours in advance.
Rules to be observed by users of the area include:
- No interference with the free flow of traffic.
- No interruption of the orderly conduct of University affairs.
- No obscene materials.
- Person making the reservation is responsible for seeing that the area is left clean and in a good state of repair.
When a registered student organization plans to invite a non-University person to address a meeting, his name must be submitted to the Dean of Students Office at least 48 hours before the event.”
The area specified in the regulation is centrally located on the University campus and is surrounded by classroom buildings. This handbook also contained a detailed chapter entitled, “Student Discipline and Conduct Code.”2 The ap-
The local group sponsoring the SWT moratoria had, on a number of occasions between November 4 and November 13, discussed plans for their November activities with the college administration. The Moratorium group insisted that they again wanted to hold a demonstration at the Huntington Statue area of the campus. The group further adhered to their requirement that the demonstration must take place from 10:00 A.M. until 2:00 P.M. Thus both the place and the time demanded by the Moratorium group were outside of the Hill Hints regulation quoted above.
University personnel endeavored to secure an auditorium so that the demonstration could be held inside but no auditorium was available. The college officials also offered to permit the demonstration to be held at the statue area if it was limited to the hour between 12:00 Noon and 1:00 P.M. Classes were scheduled to be and were in progress on this particular day in the classroom buildings which adjoined the statue area. No attempt was made to show that the student expression area defined in the regulations was not available to the group during the hours provided for therein. With explicit knowledge that they were acting contrary to the University‘s general regulation and the particular directions of the University officials who worked with them, the second Moratorium demonstration began at the statue area at approximately 9:45 A.M. on November 13. An estimated fifty demonstrators congregated in the area at the outset, but after Appellee Martine, Dean of Students of SWT, arrived and told the demonstrators to leave only ten refused and remained. They are the appellants here. There is no conflict in the evidence nor is any issue raised concerning the demonstrators’ conduct. They sat upon the grass. They intended to be and were silent until the time of their suspensions. They had caused no injury to property themselves. They had attracted a crowd of on-lookers.
Despite the initial orderliness of the November demonstration, the officials of SWT testified that based upon their October experience they did not believe that they could preserve order if the demonstration were allowed to continue during the four hours planned in the middle of the academic day at this place on the campus. Some class disruptions had in fact already begun to occur at the time Dean Martine acted. The demonstrating group had been warned in advance that violation of regulations would result in disciplinary action. After the demonstration actually started Dean Martine specifically warned the students that if they continued to violate the University‘s regulations they would be suspended until the Fall 1970 term. He then gave them a reasonable opportunity to desist. Only those who would not leave the prohibited demonstration site were suspended. The suspensions began on November 13, 1969
Plaintiffs have not attacked the procedures by which they were disciplined under the rules laid down in Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961). The sole object of their attack before the court below and on this appeal is the validity of Hill Hints regulation quoted above.
The broad standard applicable to appellate review of a district court‘s denial of preliminary injunctive relief is measured by a strict test which disregards whether this court would have exercised its discretion to deny the injunction and looks only to determine whether the district judge clearly abused his discretion in acting as he did. Allen v. Mississippi Commission of Law Enforcement, 424 F.2d 285 (5th Cir. 1970); Ferrell v. Dallas Independent School District, 392 F.2d 697 (5th Cir. 1968); Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (5th Cir. 1966); Detroit Football Company v. Robinson, 283 F.2d 657 (5th Cir. 1960); 7 Moore‘s Federal Practice ¶ 65.04 [1] & [2] (2d ed. 1966). In testing this discretion we must take into account the status of each of the parties, the respective effects which the denial or grant of the injunctive relief requested would have on these parties and upon any broader interests which might be affected—particularly public interests, the proof offered in support of and against the grant of such relief and the correct legal standards to be applied. All of these factors play a part in what is basically a balancing of the conveniences of the parties and the possible injuries to them according as they may be affected by the granting or withholding of the injunction. Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944). Some circuits have aptly expressed the equation as “a flexible interplay between the likelihood of irreparable harm to the movant and the court‘s belief that there is a ‘reasonable certainty’ (or probability) that the movant will succeed on the merits at a final hearing.” Packard Instrument Company v. ANS, Inc., 416 F.2d 943, 945 (2nd Cir. 1969); Checker Motors Corporation v. Chrysler Corporation, 405 F.2d 319 (2nd Cir. 1969); Crowther v. Seaborg, 415 F.2d 437 (10th Cir. 1969).
The order denying the preliminary injunction in the case sub judice stated in part: “There is a gravely serious question that the plaintiffs could prevail on the merits as reflected by the record in this hearing.” Thus the district judge was, as we are, not convinced after the preliminary hearing that the plaintiffs had made a prima facie case showing that the Hill Hints regulation was unconstitutional on its face or in its application to them, thus they had not demonstrated that their ultimate right to the relief sought was reasonably probable.
There is no showing that the University Administration in any way attempted to sidetrack the demonstration because of its subject matter. In argument before the court counsel for appellants admitted that the college had shown no animus toward the demonstrators or their cause. The October 15th demonstration had taken place without disciplinary action by the college—even though it was in violation of the above regulation and caused academic disturbance. The administration attempted to work out an agreeable time and place for the November demonstration which would permit it to be effective and at the same time have a minimal impact upon the essential educational functions of SWT. These facts when linked with the expectation that the demonstration was to be only one in a series of recurrent, increscent events impels the conclusion that the University officials acted reasonably to balance the interests of the majority of students in the maintenance of an academic atmosphere conducive to the pursuit of their chosen studies against the unquestioned rights of those who wished to demonstrate their views against the war in Viet Nam. Cf. Bachellar v. Maryland, 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970).
The Student Expression Area regulation in Hill Hints is a valid exercise of the University‘s right to adopt and enforce reasonable, non-discriminatory regulations as to the time, place and manner of student expressions and demonstrations. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966); Blackwell v. Issaquena County Bd. of Educ., 363 F.2d 749 (5th Cir. 1966); see also C. A. Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027 (1969).
These students certainly have no standing to complain that the 48-hour notice period as applied adversely affected them. They were dealing with the University officials concerning a continuing series of demonstrations and had the subject November demonstration under actual consideration and discussion with University officials for nine days.
We think appellants underscore rather than undermine the reasonableness and constitutionality of the regulation by pointing out that it is permissive and that the University had no codified prohibition which would make the statue area (or any other campus areas) unavailable for student demonstrations. When this is coupled with the administration‘s prior and present efforts to allow these very students maximum freedom of expression consistent with its duty to operate the college as an educational institution, we think it underscores the validity of having a regulatory minimum. A regulation governing conduct on a university campus is not a criminal law. It also bears noting that the minimum was set by the students themselves through their peers acting in the Student Senate.
The students now before us are mistaken in characterizing the admirable degree of flexibility displayed by the college administration in offering additional places and times to those specified in the Hill Hints regulation in a futile attempt to meet their demands, as some form of ad hoc action. The University‘s compliance stands in stark contrast with their intemperate insistence that they would hold their activities when and where they pleased despite the regulation and particular directions to the contrary. Since the prescribed minimum was sufficient, the administration‘s willingness to go the extra mile was clearly a virtue not a fault.
Appellants place great reliance upon the fact that the demonstration was silent and did not disrupt classes. There is evidence to the contrary. In any event we do not regard the nature of the demonstration as significant in the instant case for in this case, unlike Tinker, Burnside and Blackwell these students violated a general standing campus regulation valid on its face. In Tinker, Burnside and Blackwell special ad hoc regulations were involved which were advised to specifically restrict the wearing of the arm bands or buttons there involved. In those cases the Supreme Court and this Court held it was significant that the proscribed conduct either was (Blackwell) or was not (Tinker and Burnside) causing and contributing to a disruption in the normal activities of the schools involved.
On this interlocutory appeal from the refusal of the district court to grant a preliminary injunction, we hold only that the district court did not abuse its discretion. Our application of principles in the foregoing discussion is limited to the pleadings and the record facts now before us. When this case is ultimately fully developed on its merits, facts may appear which require a different application of law or raise different equities. Therefore, we intimate no view as to what the ultimate outcome of the case should be.
Since appellants failed to make out a prima facie case demonstrating a reasonable probability of success on the merits a fortiori they did not make that even stronger showing that is prerequisite to the grant of a stay and the issuance of an injunction pending a hearing on the merits of an interlocutory appeal. See Pitcher v. Laird, 415 F.2d 743 (5th Cir. 1969); and Belcher v. Birmingham Trust Nat. Bank, 395 F.2d 685 (5th Cir. 1968). Therefore, this Court‘s prior stay and injunction order of December 12, 1969 in this cause must now be vacated.4
One further point remains. During the pendency of this interlocutory appeal appellants moved this court for further relief to broaden the injunction heretofore granted so as to order SWT to record and transcribe appellants’ grades for the Fall semester 1969–70. We assume that this motion would also cover the Spring semester of this term, which has commenced while the appeal has been pending. This presents a complicated question of law and equity which this court is not prepared to deal with on the basis of the limited record before it. The injunction granted pending the hearing of this appeal on its merits now proves to have been improvidently granted. An injunction to which a party is not entitled can confer no rights upon him. Cf. Hyde Construction Company, Inc. v. Koehring Company, 388 F.2d 501 (10th Cir. 1968), cert. den. 391 U.S. 905, 88 S.Ct. 1654, 20 L.Ed.2d 419 (1968). Thus the appellants have attended SWT at the peril of predicting the ultimate outcome of this appeal. Their rights to grades, the college‘s right to retain any tuition payments made, the ability of the college to impose equivalent suspensions in future years (we are advised some of the students are seniors and may have completed their college courses by the time this case is remanded) are some of the factors which readily come to mind that may play a part in the ultimate resolution of the respective rights of the parties. It may be that the college administration would now think it best to substitute some other form of discipline. It may also be that the district court will feel it more appropriate to withhold any action until the case has been finalized on its merits. At least it is clear that on the record before us now we should not attempt to resolve the issue. In the interest of justice, Appellants’ motion for further relief is remanded with the cause to the district court.
Interim stay and injunction pending appeal vacated. Affirmed and remanded for further proceedings.
THORNBERRY, Circuit Judge (concurring):
I concur in the result reached by the Court today, but for a different reason from that put forth by the majority. In my opinion, the conduct of these demonstrators could not be considered a violation of the student expression area rule set out at page 70 of the University publication “Hill Hints,” because that rule merely specifies a time and place at which student demonstrations may be held but does not prohibit demonstrations at any other time and place.1 If the rule can be construed so as to apply in a prohibitive manner to these circumstances, then I think its validity doubt-
The students were suspended because of their failure to obey the dean‘s suggestion that they occupy the very area they occupied, but at a different time. Had they used the statue area from noon to one o‘clock, the time that the dean suggested, rather than insisting upon occupying it from ten o‘clock on, a time that the dean specifically prohibited, they would not have been suspended. This suggestion shows a real effort to accommodate the wishes of the demonstrators. And the efforts of the administration to protect the rights of the demonstrators were even more extensive than this. These efforts were reflected in numerous communications between the dean and the demonstrators before the date of the demonstration, in which several alternatives were explored and suggested by the administration but rejected by the demonstrators. The time and place set out in the student expression area rule was always available to the students; the dean alternatively proposed a way in which they could lawfully use the very place they used; and the administration advanced other possibilities, including the use of an auditorium at times when space was available. It appears from the evidence that the University would have been amenable to reasonable suggestions from the students themselves as to when and where they could hold their demonstration, so long as it could be accommodated to the University‘s activities. Thus the record shows a good-faith attempt by the administration of the University to set up a time and place that would allow the demonstrators their first-amendment rights while at the same time preventing the demonstration from interfering with the functions of the University.
The crucial fact in this case is that the University did not prohibit this demon-
For these reasons, it seems to me that the trial court correctly held that the plaintiffs had not shown a sufficient probability of prevailing on the merits to qualify them for a preliminary injunction under the circumstances.
Notes
Some pertinent provisions are:
“Sec. 101. Purpose
(A) A student at Southwest Texas State University neither loses the rights nor escapes the responsibilities of citizenship.
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“Sec. 204. Administrative Disposition of a Major Violation
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“(B) A student may refuse administrative disposition of his alleged major violation and on refusal is entitled to a hearing under Chapter 300. If a student accepts administrative disposition, he shall sign a statement that he understands the violation charges, his right to but waiver of a hearing, the penalty imposed, and his waiver of the right to appeal.
(C) In administratively disposing of a major violation, the Dean of Men and/or Dean of Women may impose any disciplinary action authorized under Section 601(A) 9, 10, or 11.
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“Sec. 601. Authorized Disciplinary Penalties
(A) The Dean of Men and/or Women, under Sections 203 and 204, or the Student Personnel Discipline Committee, under Section 304, or the Faculty-Student Board of Review, under Section 403, may impose one or more of the following penalties for violation of a Regents’ rule, University regulation, or administrative rule:
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“(10) suspension from the University”
In my judgment, the only way in which the rule can be interpreted so as to avoid the discretionary nature of the University‘s action in this case is to say that it prohibited demonstrations at all other times and at all other places than those specified in the rule. This interpretation might make the rule invalid for several reasons. First, it requires a real stretch of the imagination to infer this meaning from the language of the rule. Second, the rule was not so construed when applied to other student assemblies, and it would be discriminatory so to construe it in this case. Third, it would restrict student assemblies to so small an area and so brief a time as to be unreasonable if strictly enforced.By tacitly allowing loose construction of the regulation on the ground that it is a university rule governing student conduct, the Court proceeds upon assumption and without discussion into a difficult new area of the law. The courts that have held that such rules are not subject to the usual standards of specificity required of laws regulating conduct off the campus have been severely criticized by the commentators. Compare General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education, 45 F.R.D. 133, 146 (W.D.Mo.1968) with Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027 (1969) Even if this view should prevail, rules concerning first amendment rights on campus should probably be subject to a stricter construction. At any rate, the rule in this case need not be examined by the Court, because there was no denial of first amendment rights by the reasonable directions issued by the dean.