*1 beyond doubt. a reasonable harmless California, Chapman v. (1967). appellant’s examined all have We Coleman, Judge, Circuit concurred assignments find error and
additional specially opinion. and filed uniformly lacking merit. them deny- district court order corpus ing af- relief will be habeas
firmed. MISSIS-
UNIVERSITY OF SOUTHERN THE MISSISSIP- SIPPI CHAPTER OF al., et LIBERTIES UNION PI CIVIL Plaintiffs-Appellants, OF SOUTHERN MISSIS-
UNIVERSITY Defendants-Appellees. al., et SIPPI 71-1801 No.
Summary Calendar.* Appeals,
United States Court Fifth Circuit. 18, 1971.
Nov. Rehearing
Rehearing and En Banc Denied Dec. * 18, Cir.; Enterprises, Casualty Rule see Isbell Company Inc. York, v. Citizens of New et al., 5 Cir. 431 F.2d Part I.
565 Noble, Jr., Rankin, Ed Davis James E. Miss., F. Gen., A. Attys. Jackson, Asst. Allain, Atty. Summer, Gen., A. William Miss., Jackson, Gen., for de- Atty. Asst. fendants-appellees. COLEMAN, WISDOM,
Before
Judges.
SIMPSON, Circuit
Judge:
WISDOM, Circuit
harbinger
been
has
Court
Twice this
Amend-
First
major expansions
v.
Dixon
rights
students.
ment
Education, 5
Board
Alabama State
150,
our
turned
1961,
F.2d
we
Cir.
294
attendance
saw that
on
backs
the old
by
granted
privilege
was
subject to
was
state
sought to
the state
conditions
whatever
later,
years
said
impose.
Five
rights
expression can-
to free
students’
be
unless that
not
curtailed
substantially
inter-
“materially
appro-
requirements of
fere
with
[s]
operation
priate discipline in the
1966,
Byars, 5 Cir.
school.” Burnside v.
Supreme
Court
744,
F.2d
363
adopted
phrase in
landmark case
Independent
of Tinker
Des Moines
1969,
Community
District,
393
School
21
U.S.
L.Ed.2d 731.
S.Ct.
Today’s
requires
to break
decision
us
ground. During
no new
the summer
plaintiff,
University of
Mississippi Chapter
Mis-
Southern
sissippi
denied
Civil Liberties Union was
Roy
Jackson, Miss.,
organ-
Haber,
Marvin official
S.
as a student
Karpatkin,
Gora,
pro-
M.
New York
Joel M.
ization in accordance with the usual
City,
Lawyers
Parker,
by
Frank R.
provided
Com-
cedures
c/o
Rights
Law,
pro-
mittee For Civil
processing
Under
Jackson, Miss.,
plaintiffs-appellants;
posed
organizations.1
of student
charters
Wulf,
City,
L.
Melvin
York
of coun-
New
could
This denial meant that the
University-approv-
sel.
participate in
neither
Chapter’s application
deny
charter;
1. The
was submitted
mittee voted
by
approved
to the Director of
Mc-
Student Activities
decision was
President
presented by
rehearing,
Upon
and
Faculty
him to the Student-
the Committee
Cain.
decision,
Organi
Committee on Student
this action
stuck to its
membership
zations. The
Com
We need not consider
filed.
appointed
procedural adequacy
proceed-
mittee is
of these
President,
McCain,
ings
that,
William D.
how-
have concluded
since we
presided
business,
over
Com-
the Dean of
ever it
Student
conducted
Affairs.
The Committee consists of
valid reasons
mittee failed to adduce
faculty
banning
four
and three
for
versity campus.
Uni-
members
stu
meetings
dents. After
two
Com-
gate.”
supra,
ed
nor
student
house
Tinker,
student activities
at 393 U.S.
own initiative.
on its
L.Ed.2d 737. Stu-
exiled,
expression may
filed suit
dent
free
Thus
prohibited
preliminary
they “materially
for a
if
federal district court
substantially
injunction
compel
[interfere]
*3
quirements
appropriate
grant
discipline
of
approve
official
its
and
it
charter
operation
the
recognition.
of the school.”
at
Tinker
509,
393
738,
U.S.
89 S.Ct.
21 L.Ed.2d
Chap-
that the
found
court
district
739, citing
Byars,
Burnside v.
5 Cir.
a
denied
requested and been
ter had
1966,
744,
363 F.2d
749. When
University’s
for the
reasons
statement of
upon
expression
striction
student
takes
application, and held
charter
denial of its
attempt
predict
form of an
to
in ad-
a
Chapter
to such
entitled
was
that the
vance the
consequences
content and
addition,
district
statement.
expression,
that
it is tantamount
a
to
grounds
each of
court considered
prior restraint
heavy
and
pre-
carries a
by the Universi-
which had been asserted
sumption against
constitutionality.
justify
ty during
proceedings to
Books,
See Bantam
1963,
Sullivan,
Inc. v.
ground
only
charter.
denial
a
58, 70,
372 U.S.
631,
83 S.Ct.
to
district court
seemed to the
which
584; Organization for a Better Austin v.
keeping
provide
possible
a
basis
Keefe, 1971,
415,
402
U.S.
91 S.Ct.
litigious
campus was its
off
567 says social views.” political ance. But our Constitution or their risk, University, F. Terminiello v. Chi- take this Auburn must Brooks v. cago, L.Ed. such censorial Supp. To sustain at 194. very history says (1949); practices, and our would strong proba hazardous free- it is this sort of to demonstrate least have disruption openness bility kind of kind of material dom —this —that strength spoken of in the Tinker case. the basis of our national vigor independence of Amer- court found The district grow up who and live in this icans litigiousness national relatively permissive, disputa- often a “bare Liberties state Civil Unions society. tious, ground denying ly the charter tenable Serious, Chapter”. 508-509, bona Tinker *4 [USM] the at 393 U.S. litigation minority by fide carried on a more 739. We think it far L.Ed.2d group guarantee peaceful compatible expression as a of means rele- free to with rights ing larger community gate University in a a lit- its is the to the its if pro Chapter igative form of and association should by disrup- tected the First carried with Fourteenth turn out to be Button, Amendments. in NAACP v. and do result substan- tive intentions disruption 83 S.Ct. tial to life of Uni- 405. the the such, recognition justifica versity. event, As it cannot serve a In the as that keeping challenged tion granted for the Civil Union the be Liberties could campus off proceeding in a fair based unless withdrawn litigation vaguely upon actual, itself would result and not in the evidence of disruption spelled kind predictive, of in out Tinker. misconduct. to a re- us cited has Only litigation conducted in Circuit, in the Second decided cent case bad faith fill could that bill. lower 1122. Healy James, 445 F.2d expressed thought court if that approved denial Healy, a Activity Student were to Committee make Con- the Central to official investigation, a new might the Committee for a Chapter of the Students necticut up support turn some for the assertion Society (“SDS”). Without Democratic Chapter’s litigation that would be implying any way our in vexatious frivolous. pos This bare decision, it that Healy note we need sibility, unsupported by any evidence in distinguishable factually from record, justify does not a drastic respects. First, present SDS in case two curtailment constitutionally favored any to expressed commitment not has expression. The assertion of novel and litigation, members policy and certain threatening positions sometimes through disruption aas have advocated of SDS litigation recourse to might easily all too Second, achieving goals. in means of its be characterized as or vexatious harass actually Healy, demonstrated SDS ing by the individuals so threatened or university procedures by to fusal abide surprised perfectly in good —and faith. dispute it behaved resolution when But, system, in our undifferentiated during defiantly hear- a court-structured apprehension fear or of disturbance ing to The denial determine its status. enough right is not to overcome the to Healy in at least in based expression. Any departure freedom of part upon of actual mis- some evidence regimentation may from absolute cause prog- upon behavior not unfounded Any trouble. variation from the ma- nostication of future conduct. jority’s opinion may inspire Any fear. spoken, class, word in argues in Finally, the lunch- room, campus, or on the that deviates in effect its has waived person may right failing the views of another to relief from this Court argument start an or procedure rehearing cause a disturb- to resort “Young ganizations, Democrats” as But court. the district outlined “Young Republicans” on the Chap- Southern unwilling find fault with are to recogni- campus. impatience achieve ter its prerogatives. tion for constitutional Judge agree heartily I what Dal- with year It been more than since has now Radford, ton wrote place was denied same organizations do not have “Student in the on the of the Universi- sun recognized unqualified right an ty accorded to college College by a administration. organizations any other student —without properly have wide discretion officials all, justification so far as we are able operating and in the school deter- to discern. mining are most what actions com- unnecessary findWe to consider the objectives patible with its educational * * adequacy procedure afforded the *. This no Court has desire Chapter by University, since even operations interfere procedure produce any per- failed to give encouragement school or to justification denying missible increasing challenges trend of Chapter’s application. For the reasons considered ad- decisions of herein, judgment stated of the dis- ministrators.” reversed, trict court will be the case compiled On below, the record how- *5 remanded to the district ever, Mississippi Southern failed de- prompt requiring issuance of an order velop constitutionally permissible ground Mississippi for the exclusion of A.C.L.U. grant immediate ap- In this state of only point I affairs can plication of the Universi- language Radford, in supra, 315 F. ty chapter Civil Lib- Supp. at 899: erties Union. “If their organ- as a unduly ization disruptive or- (concur- Judge COLEMAN, Circuit derly functioning institution, ring specially). this court will be the first to recon- sider its decision.” opinion I am of the this is not comment, With this I concur in the purely a First Amendment case. opinion prepared for by Judge the Court organi- primary purpose proposed WISDOM. appears litigious zation to be rather than right dispense to receive infor- ON PETITION FOR REHEARING I, therefore, mation and ideas. would AND FOR REHEAR- PETITION appeal decide this on Fourteenth Amend- ING EN BANC (equal grounds. protection) ment general, agree, the ra- I do CURIAM: PER Liberties Union American Civil tionale of Rehearing College, is Denied Virginia, The Petition Inc. v. Radford Judge panel nor 1970). (W.D.Virginia, no member of this regular on the Court supported active service a tax held that case was having polled requested that the Court college apply out- cannot restrictions (Rule bane, rehearing 35 Federal en organizations such facilities side “When Procedure; Appellate Local previously Rules of have been made available 12) Petition organizations”. Rule Fifth Circuit outside record Rehearing is Denied. En Banc such outside or- shows existence of