Housewares company, company employee, and student challenged university regulation barring product demonstrations in student dormitories. United States District Court for the Northern District of New York, Neal P. McCurn, Judge, dismissed the complaint. Students appealed. Held, that (1) students have right to receive information in dormitory rooms; (2) district court erroneously applied public forum analysis; and (3) commercial speech tests are appropriate. Reversed and remanded. Judge Mahoney dissents.
Oakes, Cardamone, and Mahoney, Circuit Judges.
This case commenced when a corporation selling housewares to college students challenged a university regulation barring its access to student dormitory rooms. Initially only one student who wished to host a housewares demonstration joined the suit. He argued that the university regulation impaired his constitutional right to receive information in his dormitory room. The United States District Court for the Northern District of New York, Neal P. McCurn, Judge, granted a preliminary injunction utilizing commercial free speech analysis. American Future Sys., Inc. v. State Univ., 565 F. Supp. 754 (N.D.N.Y. 1986). Additional students then joined the suit. After a non-jury trial, the district court turned away from the students' First Amendment rights and focused on the houseware company's efforts to enter the university. Fox v. Board of Trustees, 649 F. Supp. 1393, 1398-1402 (N.D.N.Y. 1986). On appeal, the focus of the case shifted. The housewares company dropped out as a party and is now merely an amicus. Numerous students and student organizations joined as amici curiae. The university, however, is still fighting the case as it began, and we note that the lawyers representing the students originally represented the housewares company. Yet, the case no longer involves an effort by outsiders to gain access to university property; rather it concerns only the constitutional rights of students in their dormitories. Accordingly, we reverse and remand for further proceedings in light of this opinion.
Appellants are students at various campuses of the State University of New York (SUNY), in particular, at Cortland, Albany, and Binghamton. The appellees are the Board of Trustees of SUNY, the chancellor of SUNY, SUNY colleges at Cortland, Albany, Binghamton, and Potsdam, and their respective presidents.
SUNY requires all freshmen, sophomores, and new transfer students to live in college-operated housing. Only students over twenty-one years of age, married students, students with prior military service, and students living at home with parents are exempt. All students living in SUNY housing sign a "license" covering room and board. They agree to pay a specific amount for the academic year (subject to change by the SUNY trustees) in return for room and board "in the residence halls operated by the College subject to the rules and regulations of the College with respect to its students." The rules and regulations are described in the license and in university and college publications. One such publication, known as RALPH, is furnished by the residence life staff to all Cortland students. It sets forth the students' rights and responsibilities. RALPH is replete with assurances that the university will respect students' right to privacy in their dormitory room.
As a member of the residence hall community and as a tenant of the College, you have a right to privacy in your own room. You should in no way be subject to arbitrary entry or searches by College officials or by anyone else. Additionally, you do not have the right at any time to enter another student's room without his or her specific permissions [ sic ].
The College cannot, and will not, authorize any person to enter your room without your specific permission. The City Police Department, Campus Public Safety, and other law enforcement agencies are subject to the legal processes which govern entry into any dwelling.
RALPH informs students that law enforcement officials seeking entry to a student's room must have a search warrant which the student has a right to see. No member of the college or residence hall staff can enter a student's room without at least twenty-four hours' advance notice, except in "emergency situations when there is a reasonable fear of imminent danger to life, safety, health, or property."
Most of the campus living situations have unlimited visitation hours, although in a few dormitories visits may occur only from 6:00 a.m. to midnight, Sunday to Thursday, and from 6:00 a.m. to 2:00 a.m. on Friday and Saturday. Any visitor who stays past midnight must register with residence hall staff.
In 1966 the SUNY Board of Trustees adopted Resolution 66-156 which, as amended by Resolution 73-26 in 1973 and by Resolution 79-100 in 1979, reads as follows:
No authorization will be given to private commercial enterprises to operate on State University campuses or in facilities furnished by the University other than to provide for food, legal beverages, campus bookstore, vending, linen supply, laundry, dry cleaning, banking, barber and beautician services and cultural events.
The parties stipulated that the Resolution (hereinafter "the Regulation") prevents SUNY students from inviting into their dormitory rooms commercial enterprises or persons who furnish information, provide a product, or provide a service where a fee is charged or a profit involved. A statement of SUNY's policy prohibiting "selling and soliciting ...