The opinion of the court was delivered by: FRANKEL
In this lawsuit, which grows out of grave troubles recently experienced at Columbia University, nine assorted plaintiffs - five students, the pastor of a church near the University, a chapter president of the Congress of Racial Equality, an alumnus, and a lecturer in the College and Graduate Faculties
- assert for "themselves and all persons similarly situated" various "causes of action" and demands for injunctive relief. They have moved for an injunction pendente lite. The application for such extraordinary relief is without merit, and will be denied. A cross-motion for summary judgment will be held in abeyance.
The plaintiffs complain broadly that they and members of their "classes" have for some time been protesting against the "policy-making structure of the University," the President's "unlimited and undefined" disciplinary powers, the planned construction of a University gymnasium in a public recreational area, and the University's involvement in the "Institute for Defense Analysis * * *, a consortium of twelve American universities conducting research for the Department of Defense." Before April 23, 1968, it is alleged, plaintiffs attempted to communicate such protests "to the appropriate officials of the University without any serious consideration or response thereto being given." Complaint, par. 14. Moreover, they charge, on September 25, 1967, defendant Kirk, the University President, "issued an edict prohibiting further protest demonstrations within the buildings of the University, no matter how peaceful or non-violent." Ibid. On April 23, plaintiffs and others assembled and went to the offices of the President in Low Memorial Library. When they learned that the President was refusing to meet with them, they proceeded to the site of the disputed gymnasium, but they were soon dispersed by the police. The plaintiffs then "returned to the campus to begin a peaceful demonstration in Hamilton Hall to protest the refusals of the University to give reasonable consideration to the structural and policy changes hereinabove referred to." Id., par. 15. "In addition to the said demonstration in Hamilton Hall, from April 23 to April 30, 1968, plaintiffs, in their attempt to bring about a discussion and negotiations of the said structural and policy changes with the appropriate University officials, assembled" in three other University buildings and in "the offices of the defendant KIRK, where they remained until their arrests on the latter date * * *." Id., par. 16.
In other words, as the complaint goes on to say, the plaintiffs and others for whom they purport to speak occupied by "sit-ins" four of the school's buildings and the President's office uninterruptedly for a week until they were forcibly removed. Ibid.
Notwithstanding that their occupation of the buildings was "peaceful and orderly," plaintiffs charge, defendant President called in the police, who, at about two a.m. on April 30, 1968, "without any provocation by plaintiffs and members of their classes, * * * utilizing excessive and unnecessary force and in a brutal and inhuman manner physically assaulted and beat plaintiffs and the members of their classes and arrested more than 700 thereof." Then, it is asserted "upon information and belief," various charges of criminal trespass, resisting arrest, disorderly conduct, loitering, inciting to riot, and possession of weapons and dangerous instruments and appliances were filed against those so arrested.
The complaint goes on to allege that defendant University officials have brought or are threatening disciplinary proceedings arising from the foregoing events under University statutes which are vague, devoid of standards, offensive to principles of due process, and contrary to the protections of the First and Fourteenth Amendments. The threats of discipline "and/or arrest" are allegedly "being made * * * in bad faith without any hope of ultimate success and with the basic purpose and effect of intimidating and harassing * * * and punishing [plaintiffs] for, and deterring them from," exercising their First Amendment rights.
In order to avoid the "chilling effect" of such action by defendants, plaintiffs' first "cause of action" is to enjoin the University disciplinary proceedings and declare void a general statute of the University announcing its disciplinary powers.
In their second "cause of action" plaintiffs charge that the 700-odd people arrested on the morning of April 30 committed no illegal acts; that they are facing criminal charges only because they "resisted an unprecedented invasion of their University * * * and an uncontrolled exercise of violence" by the police; that the criminal charges against them are designed only to "chill" First Amendment freedoms; and that the pending prosecutions should be enjoined.
A third "cause of action" adds that defendant Hogan is both District Attorney of New York County, in charge of the pending prosecutions, and a Trustee of the University. These dual roles, plaintiffs allege, will deny them equal protection and due process if the criminal proceedings are not enjoined.
In their fourth "cause of action," plaintiffs reiterate the charges of police brutality on the morning of April 30; predict that such official violence "may" recur as a response to further acts of peaceful protest; and ask that the police be enjoined from perpetrating further assaults of a similar nature.
A fifth "cause of action" says the campus was "taken over" by the police upon the invitation of defendant Kirk; that this was "in violation of the fundamental integrity of the University community and without regard for appropriate institutions of self-government, including the faculty and student body" (par. 41); that plaintiffs, "in seeking to protect the integrity of the institutions of the University from invasion by the police, are invoking not only the ancient and historic regard for the integrity of the academic community but as well their rights" of free speech and due process (par. 42); and that defendant Kirk should be enjoined or he "may again resort to a violation of the integrity of the academic community by surrendering control of the University to the police."
The sixth and final "cause of action" charges that the University structure, "essentially unchanged since 1754, affords no participatory power in the faculty or student body in the determination of policies and programs of the University." Par. 45. Plaintiffs say this "structure" violates unspecified "constitutional rights of faculty and students as well as the rights of members of the community affected by the actions of the University, in that it provides for a self-perpetuating body" of irresponsible trustees, "all in violation of the fundamental tenets of a democratic society as outlined in the Constitution of the United States." The court is asked to order a restructuring of the University under a "program to be submitted to this Court for its approval."
The motion papers seeking a preliminary injunction contain no affidavit by any plaintiff or member of any of the alleged classes. Instead, supposedly to buttress the allegations of the complaint, the motion was initially rested upon the affidavit of counsel, whose asserted knowledge of relevant facts dates only from May 19, 1968 (after the filing of the complaint), and whose sworn statements consist largely of argumentation rather than supposed propositions of fact.
In a more technical age, or with more technical defendants, this sort of submission as a basis for an extraordinary kind of extraordinary relief might well have collapsed from its own infirmities. However, the parties and the court have dealt with the alleged merits of the motion in broader terms.
From the several affidavits on both sides, the undisputed facts and the unresolved disputes become sufficiently apparent for present purposes. It is clear that some hundreds of students and others conducted round-the-clock sit-ins occupying University buildings and the President's office for the week or so beginning April 23, and that they left on April 30 only because they were forcibly removed. At the outset of this "peaceful" protest, the Acting Dean of Columbia College was held captive in his office in Hamilton Hall for some 24 hours. During the occupancy of President Kirk's office, his files were rifled, documents were removed, and copies were made of correspondence, memoranda, diaries and other records. Since that time, copies of such records have been widely circulated on the campus and to public communications media.
It is undisputed, despite some equivocal legalisms for plaintiffs, that those participating in the sit-ins denied access to the buildings to faculty members, students and University personnel, among others.
Through the week of sit-ins, faculty members and others sought to persuade the occupants to leave peaceably. When these negotiations failed, the police moved in on the night of April 29-30 to force the departures and make the arrests which are central in plaintiffs' complaint.
Plaintiff Morris Grossner was among those arrested on that night.
As part of his efforts to cope with the disturbances in the University community, defendant Kirk proceeded shortly after April 30 to appoint a Joint Committee on Disciplinary Affairs comprised of faculty members, students, and administrators. On May 9, 1968, this Committee recommended disciplinary measures and general procedures "predicated on the assumption that trespass charges will be dropped."
In this initial expression of its views, the Committee observed that the "demonstrations" beginning April 23 had "involved a number of unprecedented offenses against the University community;" that buildings had been entered and occupied illegally; that students, faculty and others had been excluded from their classrooms and offices; that University and personal property had been damaged; and that acts of such kinds, if committed by a single person or group "in an ordinary atmosphere," would deserve "maximum punishment." However, the Committee said, the atmosphere had not been "ordinary;" many of the demonstrators had "acted out of deep commitment, not personal animus, convinced that the University was not responsive to legitimate demands;" and there was a possible measure of shared responsibility to be assessed by a recently created fact-finding body. Recognizing that there might be mitigating factors, the Committee, nevertheless concluded:
"It is clear, in any case, that no apportionment of responsibility can justify these violations of established rules, whether explicit regulations of the University or the unwritten rules of behavior that govern any community. The actions of the demonstrators were wholly out of proportion to their declared grievances."
Finding that the demonstrators shared "a common responsibility for [the] * * * chief consequences" of the demonstrations, the Committee recommended that there be "a uniform discipline * * * for the act of participation as such" - namely "disciplinary probation through June 30, 1969." Elaborating on this proposal, the Committee observed that such probation should serve mainly as "a clear warning to the offender" of "more severe penalties" for future infractions, but should not entail loss of "financial aid, or comparable hardship," or denial "of the right to participate in political activities in the University."
While proposing such limited and uniform punishment "for the act of participation as such," the Committee went on to say that "the University should investigate every charge of malicious action such as wilful injury to persons, theft, deliberate damage to property, or invasion of private papers, and should bring appropriate charges against the individual offenders."
In broad outline, the Committee described as follows the procedural framework for implementing its substantive judgments:
"In the light of these initial conclusions, the Dean of each School or Faculty should determine which students in that School or Faculty were involved in the demonstrations and, following discussions with those students, should impose the discipline recommended above. A student who fails to appear before the Dean should be suspended. If the student believes that the penalty imposed upon him by the Dean is excessive in view of that recommendation, he may appeal directly to the Joint Committee on Disciplinary Affairs.
"If a student denies the Dean's charge of participation, the Dean should invoke procedures of the kind outlined hereafter. If the Dean concludes that more serious penalties are appropriate, because the student was already on probation or because he charges the student with offenses additional to participation in the demonstrations, the Dean should proceed against the student in this same formal manner."
The Committee went on then to prescribe detailed procedures - notice by the dean in writing; the convening of disciplinary tribunals, each to be comprised of two faculty members, two students, and an administrator selected by the dean (from persons not normally concerned with discipline); and the right of students before the tribunals "to be advised by counsel * * * and to present evidence" ("but counsel should not participate in the proceedings"). Further, the Committee said, students should not be required to give evidence against themselves; a transcript should be made; the proceedings should be public unless the tribunal "rules that the spectators are disrupting the proceedings;" students should be presumed to be innocent "until their guilt has been clearly proven in the proceeding;" and conduct must be judged only by "public or University statutes, rules, or regulations" to be "clearly identified" as the grounds of the alleged violations. The Joint Committee went on to prescribe a right of appeal, and undertook to serve as an appellate tribunal. Provision was made for further review by the President, with the stipulation that he was not to increase any penalty "sustained or imposed by the Joint Committee."
After defendant President and the Trustees had responded to its pronouncements of May 9, the Joint Committee issued a further statement on May 13. It recalled its earlier premise that the trespass charges would be dropped; noted that this was not being done; observed, however, that it was "now prepared to exercise its appellate jurisdiction;" and suggested that the Deans "begin to implement its recommendations concerning intramural discipline, but that application of all penalties be held in abeyance, pending action in the courts." Further, it said:
"The Joint Committee will entertain an appeal from a penalty applied before the final disposition of trespass charges against a student, even if that penalty is otherwise consistent with the Joint Committee's recommendations."
Appellate and other procedures were prescribed in fuller detail. And, finally, the Committee concluded with this reminder:
"* * * A student who fails to appear before the Dean is liable to immediate suspension, even though a trespass charge ...