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POWE v. MILES

September 25, 1968

Emile POWE, Eileen Hickey, Mark Rosenthal, Ellen Winters, Lynn Felsher, Glenca Smith, Deborah Kaplan, Plaintiffs,
v.
Leland MILES, as President of Alfred University, and Alfred University, Defendants



The opinion of the court was delivered by: CURTIN

CURTIN, District Judge.

 The plaintiffs, all students who are presently under a one-semester suspension from Alfred University, commenced this action pursuant to the Civil Rights Act (42 U.S.C. § 1983; 28 U.S.C. § 1343) on August 28, 1968, asking the following relief: (1) an injunction compelling Alfred University to reinstate them as students for this fall semester; (2) an injunction restraining Alfred from imposing penalties upon students for exercising their right to free speech; (3) a declaratory judgment declaring null and void certain guidelines entitled "A Policy on Demonstrations" (see Appendix 1), which was promulgated by the university early in 1968; and (4) damages in the amount of $100,000.

 In addition to their main action requesting permanent relief the plaintiffs, by order to show cause, sought a temporary restraining order.

 The parties have agreed that the actions for a temporary restraining order and permanent injunction and the declaratory judgment action be tried together, pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure.

 On Saturday morning, May 11, 1968, an ROTC drill ceremony was held on the football field at Alfred University to honor certain outstanding cadets for their performance during the past school year. This was also the Annual Parents' Day, and the stands at the field were filled with several hundred parents and other spectators. A separate reviewing stand reserved for officials and special guests had been erected about two feet above ground level between the stands and the field, and about eight or ten feet from the football field sideline. Next to the reviewing stand was placed a table upon which various trophies and honors to be awarded certain of the cadets were placed.

 As the cadets were forming on the field, the seven plaintiffs, a faculty member and eight other students came out along the sideline in single file between the reviewing stand and the area where the honor cadets were eventually to assemble to receive their awards. These "demonstrators" carried signs which carried four different messages. One called for the abolition of compulsory ROTC at Alfred University; a second advocated the establishment of academic courses in black history; a third urged an increase in the number of Negro scholarships at Alfred; and a fourth protested against the war in Vietnam. The protesters marched up and down two or three times in single file in front of the stands, and then took a standing position in front of the stands with their signs held facing the grandstand. On various occasions, these signs were raised so as to block the spectators' view of the cadets on the field. One of the demonstrators shouted at the people in the grandstand: "You don't want your sons to go to Vietnam and get killed, do you?" Some of the spectators reacted by booing and by shouting back: "Get off the field; get out of the way!"

 The Dean of Students, Paul F. Powers, was in the pressbox at the top of the grandstand. He was in a good position to see and hear the reaction of the spectators. He could see that the people in the reviewing stand and many spectators in the grandstand would not be able to see the cadets. Furthermore, he could observe the position of the demonstration and their probable interference with the cadets marching on the field. After the demonstrators had been on the field for about five minutes, it became clear to the Dean that they intended to remain where they were. He determined that the demonstrators were in violation of the university guidelines, and he then addressed them in these words:

 
"I now request that you modify your demonstration procedure by leaving the field. You are in violation of the university policy and guidelines in that you are interrupting a classroom situation, and I request that you remove yourselves from the field." (Testimony of Emile Powe at pp. 25-26.)

 He repeated this request four times -- twice directed to the students involved and twice to the faculty member who was on the field.

 About eight of the student demonstrators heeded the Dean's request by walking to the end of the field and by sitting next to the grandstand, with their signs, for the remainder of the drill. The other demonstrators, including the seven plaintiffs and the faculty member, chose to ignore the Dean's order by remaining on the field. In response to their defiance, the Dean made a further announcement:

 
"In accordance with the university policy on guidelines and the power invested in me, I now provisionally suspend you from Alfred University. You will have to pick up the charges against you in my office. You are to appear at a hearing on Sunday morning at ten A.M." (Testimony of Emile Powe at p. 26.)

 Subsequent to this announcement, Colonel Fred Schumacher, head of the ROTC unit at Alfred, and one of his aides moved the trophy table to a different position on the field so that the presence of the demonstrators would not interfere with the awards ceremony. As they attempted to move the trophy table through an opening in the line of demonstrators, the students closed their rank and one student elbowed him in the ribs.

 The drill lasted about forty-five minutes. From time to time, the demonstrators would hold their signs in such a way so that it was difficult for those in the reviewing stand to see the cadets on the field. Because of the position of the demonstrators on the field, both the band and the brigade had to modify its line of march to avoid the demonstrators. It became impossible for the honored guests to "troop the line" as planned. Because the brigade commander could not clearly see the reviewing stand, he could not present the honor cadets to the reviewing officer in a proper manner. Certain parts of the award ceremony were altered. One person, who was scheduled to present awards to the honor cadets, felt constrained to leave the reviewing stand because of this incident.

 During the entire demonstration, no one interfered with the students in any way. For five minutes, they were given ample opportunity to display their signs and march in front of the stands. After the Dean's request, the spectators could have seen their signs even if they had positioned themselves on the other side or at either end of the field.

 The plaintiffs were well acquainted with the "Policy on Demonstrations." When these guidelines were first drafted, plaintiff Emile Powe, president of the Students for a Democratic Society on campus, and several other students were asked by President Leland Miles for their comments and suggestions on the guidelines. Having experienced other demonstrations on campus, the "Policy on Demonstrations" was intended to provide reasonable guidelines for the conduct of future demonstrations.

 On May 20, 1968 the plaintiffs were given a hearing and they were represented by an attorney, Mr. David G. Jay of Buffalo, New York. This hearing date had been adjourned from May 12, 1968 so that the plaintiffs would have sufficient time to prepare a defense with the aid of legal counsel. After the hearing the students were suspended until January, 1969.

 GOVERNMENTAL INVOLVEMENT

 Alfred University was incorporated by the New York Legislature in 1857. Its charter provides that the university should be governed by a board of 33 trustees who are empowered to fill their own vacancies. These are private individuals, and there are no representatives of the State of New York. The university, through its trustees, has the power, inter alia, to contract and to appoint a president, professors and other instructors as are deemed necessary. The charter further provides:

 
"The said university shall be subject to the visitation of the Regents of the university of this state in the same manner and to the same extent ...

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