Moore and Smith, Circuit Judges, and Timbers, District Judge.*fn* J. Joseph Smith, Circuit Judge (dissenting).
Appellants, eight students at Central Connecticut State College (CCSC), New Britain, Connecticut, appeal from a judgment entered after hearings in the United States District Court for the District of Connecticut, T. Emmet Clarie, District Judge, dismissing their complaint which sought declaratory and injunctive relief against the President of the College, the Dean of Student Affairs of the College, the Dean of Administrative Affairs of the College and the members of the Board of Trustees for the State Colleges of Connecticut. 319 F. Supp. 113 (D.Conn.1970); see also 311 F. Supp. 1275 (D.Conn.1970). We hold that the District Court correctly ruled that defendants, in denying official college recognition to a local chapter of Students for a Democratic Society (SDS), did not violate plaintiffs' constitutional rights of freedom of speech, of freedom of assembly or to the equal protection of the laws; that they did not act arbitrarily or capriciously; but that they did act well within "the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools." Tinker v. Des Moines School District, 393 U.S. 503, 507, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969); and see Epperson v. Arkansas, 393 U.S. 97, 104, 21 L. Ed. 2d 228, 89 S. Ct. 266 (1968).
In order more precisely to focus upon the narrow issue here involved, it may be helpful at the outset to make clear what is not involved. Plaintiffs as individuals have not been denied their rights, on or off campus, to speak, to assemble, to petition or to demonstrate. Nor have they been prevented from organizing off campus any group, club, chapter or other collective activity.
What this case does involve is the narrow question whether the President of the College,*fn1 upon the specific record before him, properly acted within his broad discretion and comprehensive authority in denying the College's stamp of approval for a local chapter of SDS as an officially recognized campus organization with its attendant privileges. We hold that he did.
The controlling facts are not in dispute. In large measure they were stipulated.
In view of the District Court's clear and comprehensive findings of fact,*fn2 we shall summarize only so much of the chronology as is believed necessary to an understanding of our decision below.
(A) Events Leading Up to District Court's Decision of April 24, 1970.
In common with most colleges and universities, the faculty of CCSC on May 19, 1969 adopted a "Statement on Rights, Freedoms and Responsibilities of Students."*fn3
In September 1969, following publication in the student newspaper of a notice of a meeting to organize at CCSC a local chapter of SDS, plaintiffs met and voted to request the administration to grant official recognition to such a chapter on the campus. They sent to Dean Judd an application containing a written statement of the purposes of the proposed "local chapter of Students for a Democratic Society"; this statement, among other things, disclaimed that the local SDS chapter would be "under the dictates of any National organization."
Plaintiffs' application on October 2, 1969 was referred to the Student Affairs Committee (also referred to as the Student Personnel Committee) which is an eight member group advisory to the President, consisting of the Dean of Student Affairs, three faculty members and four students. On October 13, 1969, the Student Affairs Committee, by a 6-2 vote, recommended to President James that the local SDS chapter be given official recognition.
On October 30, 1969, President James rejected the recommendation of the Student Affairs Committee and denied official recognition to the local chapter of SDS. His reasons for this action were set forth in a written memorandum,*fn4 a copy of which was furnished to plaintiffs on October 30.
On November 6, 1969, after President James had denied official recognition to the local SDS chapter, plaintiffs and others met in the Devils' Den of the Student Center, apparently a campus coffee shop under the administration of the College. Upon being informed that this was a meeting of the "CCSC-SDS" and that its purpose was to discuss President James' action of October 30, Dean Judd and Dean Clow notified the group in writing that they could not meet in the Devils' Den or in any other College property "since the CCSC-SDS is not a duly recognized college organization."
Some three and a half months later, the instant lawsuit was commenced by the filing of the complaint on February 24, 1970.*fn5 Plaintiffs*fn6 sought declaratory and injunctive relief, the primary thrust of which was to obtain official college recognition of "a chapter of Students for a Democratic Society . . . as a campus student organization."
After the pleadings were closed and a stipulation of facts was filed, Judge Clarie on March 23, 1970 held a hearing on plaintiffs' motion for a preliminary injunction. While the hearing was devoted mainly to marking of exhibits and to arguments of counsel, it was anything but perfunctory. Judge Clarie's questions to counsel on both sides were perceptive and pervasive;*fn7 they clearly indicated the lines of inquiry he thought should be pursued at the administrative hearing he subsequently ordered.
(B) District Court's Decision of April 24, 1970.
On April 24, 1970, Judge Clarie filed a comprehensive 14 page memorandum of decision. 311 F. Supp. 1275. He reviewed the events which led to the lawsuit. He summarized the claims of the parties, noting that plaintiffs did not challenge the constitutionality of the standards established by the College for determining whether campus organizations are to be recognized, but that they did claim as a denial of procedural due process the action of President James, without affording plaintiffs a hearing, in denying their application for official recognition of a local SDS chapter and particularly in going outside plaintiffs' application and attributing to plaintiffs the aims and purposes of the national organization of SDS which he in turn found to be contrary to the policies of CCSC as set forth in its "Statement of Rights, Freedoms and Responsibilities of Students" (Appendix, pp. 1135, 1136, infra). In this connection, Judge Clarie pointed out an ambiguity on the face of plaintiffs' application which he suggested should be clarified at an administrative hearing:
"The ambiguity in this application is patent in that it states that the petitioners wish to become a 'local' chapter of SDS. The term itself, 'local chapter,' strongly infers some kind of affiliation with a more extensive parent organization; yet the application specifically represents that the local group would not be under the dictates of the national organization. The college administration may wish to have this ambiguity clarified and the credibility of the representations ascertained and verified." 311 F. Supp. at 1282.
Then, after a careful analysis of the pertinent authorities, the upshot of Judge Clarie's April 24, 1970 decision was to order that an administrative hearing be held in accordance with the following blueprint (311 F. Supp. at 1282-83):
(1) The hearing was to be held within 30 days.
(2) Reasonable notice was to be given to all parties.
(3) The hearing was to be conducted by either President James "or a hearings officer duly designated by him and acting in his stead."
(4) All plaintiffs were to be afforded an opportunity to be heard.
(5) Cross-examination of witnesses was to be allowed.
(6) A record of the hearing was to be made.
(7) The hearing was to be conducted "in a climate of respectful civility."
(8) Without attempting to restrict the scope of the hearing, the following lines of inquiry were suggested by Judge Clarie:
(a) "The initial question might be whether or not a local unaffiliated chapter of SDS can lawfully exist without being subject to the dictates of the national organization."
(b) "A copy of the organization's charter, by-laws or other similar type of document might be helpful on this point."
(c) "In light of the recent fragmentation of the National SDS, it might also be relevant to know of which faction, if any, this group wishes to become a local chapter."
(d) "Were it to be found to be impossible for a local chapter of SDS to exist without being affiliated with the national parent organization, could the aims and philosophy of the latter group become relevant and important?"
(9) Minutes of the October 2 and October 13, 1969 meetings of the Student Affairs Committee were to be produced.
(10) Judge Clarie directed that President James, after the conclusion of the administrative hearing and upon the overall record, "make his findings as to whether or not the application met the existing policy standards of the college, which would qualify the applicant club for official campus recognition."
(11) Jurisdiction was retained by the District Court for the entry of such further orders or judgments as might be necessary and appropriate.
(C) College Administrative Hearing of May 19 and May 25, 1970.
The administrative hearing ordered by Judge Clarie was held in the CCSC Administration Building in New Britain on May 19 and May 25, 1970. Notice of the hearing was given to and acknowledged by all interested parties, including each individual plaintiff and plaintiffs' retained counsel who was present throughout.
While one of the primary purposes of the hearing was to afford plaintiffs the procedural due process Judge Clarie found had been denied them by President James' action of October 30, 1969 without a hearing, it became quickly apparent at the first session of the hearing on May 19 that the notion of procedural due process entertained by plaintiffs' counsel was quite different from that contemplated by Judge Clarie.
The following are examples, selected at random, of the disruptive tactics resorted to by plaintiffs' counsel at the administrative hearing:
(1) Although Judge Clarie ordered that a record be made of the hearing, plaintiffs' counsel spent two and a half pages of the transcript objecting to the presence of a tape recorder,*fn8 concluding that "I'm objecting to the use of this device because this device cannot talk back and tell me when it doesn't hear me. . . ."*fn9
(2) Despite Judge Clarie's order that the hearing be conducted by either President James "or a hearings officer designated by him," plaintiffs' counsel took up another page of the transcript objecting to President James' absence and his designation of Dean Judd as the hearing officer,*fn10 stating that "I take the position that the hearing is not properly conducted notwithstanding Judge Clarie's statement."*fn11 Upon being overruled, plaintiffs' counsel then moved to postpone the hearing and again was overruled.*fn12
(3) While Judge Clarie had ordered that "all of the plaintiffs in this action shall be afforded an opportunity to be heard," plaintiffs' counsel made it clear at the outset that he was going to do the testifying, not the plaintiffs: "Well, as far as I'm concerned, I will make all the remarks that have to be made. I'm not foreclosing any one of my people from speaking, but as far as I'm concerned, I have no reasons for them to make any statements."*fn13 Of the eight named plaintiffs, only two appeared at the May 19 hearing, one at the May 25 hearing. Plaintiffs' counsel did all the talking. Plaintiffs themselves did not testify at all, with one minor exception.*fn14
(4) Having effectively sealed off the individual plaintiffs from testifying, plaintiffs' counsel thereupon called President James as a witness on behalf of plaintiffs at the May 25 hearing. Having in mind the purpose of the administrative hearing ordered by Judge Clarie and his directive that President James upon the overall record "make his findings as to whether or not the application met the existing policy standards of the college," plaintiffs' counsel proceeded to ask James questions such as the following:
"Dr. James, you -- I withdraw that. Have you already decided this case?"*fn15
"Dr. James, you addressed the Lions Club last week, did you not?"*fn16
"Dr. James, do you intend to offer any evidence in which the creditability of any of these students is under attack?"*fn17
(5) After reading to Dr. James the only evidence offered by plaintiffs at the two day hearing -- a statement of change of name of plaintiffs' proposed organization from "local chapter of Students for a Democratic Society" to "Students for a Democratic Society of Central Connecticut State College" -- plaintiffs' counsel then asked President James:
"Now, does that statement help you in making a judgment?"*fn18
(6) The attempt by plaintiffs' counsel to talk to President James off the record is reflected in the following colloquy:*fn19
"Attorney Silver: Yes, could we go off the record? I'd like to talk to Dr. James.
Attorney Silver: Will the record show that I wanted to talk to Dr. James 'off the record', and I was told that I couldn't do so?
Dean Judd: That request is denied. Dr. James is here as your witness, counselor. We are conducting a hearing; ...