Appendix — Associated Students of Western Kentucky University v. Downing

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 72-1894

AssociatED STUDENTS OF WESTERN

Kentucky University, Linpa

Jones, Recrnatp Guass, ALBERT

Stiru, Parrack Lone, Epwarp

JorpaN, CHARLES Boreter, and

»

Micuakt FrRoe..a, APPEAL from the

Plaintiffs-A ppellants, United States Dis-

», ‘ trict Court for the

Western District of

Dero G. Down1nG, President of the Kentucky, Bowling

Western Kentucky University, Green Division.

CuarLtes Keown, and the Boarp

or Recents oF WEsTERN KeEn-

tucky University, a Body Cor-

porate,

Defendants-A ppellees, -

Decided and Filed March 28, 1973.

Before: Puuituips, Chief Judge, Peck, Circuit Judge,

and Kennepy, District Judge.*

Pumurrs, Chief Judge. The governing officials of West-

ern Kentucky University at Bowling Green made a decision

that the sponsoring by the University of a certain motion

picture film and its showing on the campus under Univer-

sity auspices would be inappropriate. Accordingly, the Un-

iversity cancelled the booking contract which it previously

had exeeuted for the showing of the film. District Judge

Rhodes Bratcher, after a comprehensive evidentiary hear-

*Honorable Cornelia G. Kennedy, United States District

Judge for the Eastern District of Michigan, sitting by designation.

I a A A REDE Rt BE LIEGE OE RS OE I Ene 8 Wa OO wen * = Oa =

“IG Si

ped “

10

; ing, found that the decision of the University was within

; the rights and powers of its governing officials.

We affirm.

The appellants are Associated Students of Western Ken.

tucky University, the student government organization, two

of the officers of that organization and two other University

students.

The appellee Board of Regents is the duly constituted

governing body of the University. K.R.S. § 164.350. The

President and Dean of Student Affairs also were named

parties defendant.

Since about 1966 the University and the Associated Stu-

dents have planned and operated jointly a series of cultural,

social and educational programs for the benefit and enjoy-

ment of students. The District Court held that the Univer.

sity is an indispensable party, both as to selection and con-

tent of the programs under consideration in the series. The

programs are financed through an item in the University’s

budget, which in 1971 was set at a maximum of $52,000. Ail

agreements in connection with the series required the ap-

proving signature of the University as a necessary con-

tracting party.

A showing of “The Films of John Lennon and Yoko

Ono” was scheduled on the campus on February 2, 1971.

The University signed a booking contract for this program.

After a preliminary showing of the film, the University

cancelled the contract.

One segment of the film in question was titled “The

Fly.” Judge Bratcher described it as follows:

“The Court has seen the questioned film in chambers

and it has been described in the testimony. Briefly, it

consists of a camera focused upon what appears to be

an ordinary house fly as it crawls and meanders over,

around, in, on and about the body of a nude female

Letters) AGN

& Leal ine Mi vik

ve

11

model lying in bed . . . on her back with her legs

spread apart. The camera, on oceasion, zooms in for

close-up showings of the open vaginal orifice with the

ever-present fly crawling in and around the exposed

area,

“The travels of the fly take it to the legs, arms, nip-

ples of breast, ears, hair of the head, hair under the

arms and substantially the entire body of the model,

ail accompanied by background music.”

The Dean of Student Affairs concluded that: “It would

be inappropriate for the University to continue as a con-

tracting party.” The President of the University coneurred

in this conclusion. There is no dispute that the making of

this decision was within the scope of authority delegated by

the Board of Regents.

The appellants sought declaratory judgment and injune-

tive relief to protect certain rights alleged to have been

violated in derogation of constitutional guaranties. After

a full hearing Judge Bratcher ruled that the University, as

a party to the booking contract and pursuant to its terms,

had the right to cancel the contract in the absence of a clear

case of constitutional infringement.

We believe this case to be distinguished from situations

where University officials have censored programs spon-

sored by students or student organizations or otherwise in-

terfered with the exercise of First Amendment rights. See,

¢.9., Brooks v. Auburn University, 412 F. 24 1171 (5th Cir.

1969); Korn v. Elkins, 317 F. Supp. 138 (D. Ma. 1970) ;

Antonelli v. Hammond, 308 F. Supp. 1329 (D. Mass. 1970).

In the present case the University did nothing more than

to make a determination that, with respect to a particular

experimental film, it would be “inappropriate for the Uni-

versity to continue as a contracting party.”

12

The evidence supports the conclusion of the District

Court that appellants demonstrated no violation of any con-

stitutional right. The findings of fact of the District Court

are not clearly erroneous, but to the contrary are supported

by substantial evidence. Rule 52(a), Fed. R. Civ. P. The

University had the prerogative to determine, as it did, that

it was inappropriate for it as an institution of higher learn-

ing to sponsor the showing of the questioned film as a part

of its educational program.

Affirmed.

13

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT BOWLING GREEN

No. 1559

AssocIATED StuDENTS or Western KENTUCKY

University, Linpa Jones, Recrnatp Gass,

ALBERT StitH and Patrick Long -— - Plaintiffs

v.

Dero G. Down1ne, President of Western Ken-

tucky University, CuarLes Keown, and the

Boarp or ReGENts or Western Kentucky

University, a Body Corporate - - Defendants

MEMORANDUM AND ORDER—Entered June d, 1972

This is an action by Associated Students of Western

Kentucky University, Linda Jones, Reginald Glass, Albert

Stith and Patrick Long against Dero G. Downing, President

of Western Kentucky University, Charles Keown, and the

Board of Regents of Western Kentucky University, a body

corporate, defendants. The plaintiff, Associated Students,

is the duly constituted and officially recognized student

government association of Western Kentucky University.

Linda Jones was President of Associated Students and by

virtue of her office was an ex officio member of the Board

of Regents. Reginald Glass was vice president, Albert

Stith and Patrick Long were members of Associated Stu-

dents Congress, All were full-time students at Western

Kentucky University.

The defendant Board of Regents of Western Kentucky

University is the duly constituted governing body of a state-

supported institution of higher learning located in Bowling

etary .

Green, Kentucky, with co-educational enrollment of about

10,000 students ranging in age from 16 years upward. The

defendant Board of Regents is organized under the provi-

sions of KRS 164.550 and exercises plenary governing

power over the University. The defendant Dero G, Down.

ing is President of the University and the defendant Charles

Keown is the Dean of Student Affairs and as such serves as

adviser to the Associated Students. The plaintiffs in this

action seck declaratory judgment and injunctive relief to

protect certain alleged rights claimed to have been violated

i derogation of constitutional guaranties.

The relevant facts are these:

Plaintift's and defendants since about 1966 have jointly

planned and operaicd a serics of cultural, social and educa-

tional programs for the benefit and enjoyment of the stu-

dents. While there is some disagreement as to facts, it is

clear that the University was an indispensable party and

directly involved in the decision-making process, both as to

selection and content of the programs under consideration

in the series.

The plaintiffs had no separate funds budgeted to it for

its sole and exclusive use and benefit but depended upon

the University to allocate funds to it from its overall budget

where this could be accumpiished for college approved ac-

tivities and within the school’s “established maximum level

of expenditure” which, in 1971, was set at $52,000.00.

All agreements in connection with the series required

the approving signature of the University as a necessary

contracting party.

This pattern of procedure was understood by each of

the parties hereto. In the past the University exercised

these prerogatives without provoking any controversy until

the present hostilities were ignited.

Plaintiffs scheduled “The Films of John Lennon and

Yoko Ono” for showing on campus February 2, 1971. On

February 1, Dean Keown, after his suspicions were aroused

14

’ 15

from reading a distributor leaflet description as to one seg-

ment of the film referred to or titled “The Fly”, viewed the

film and subsequently refused to permit it to be shown on

campus and stated the film was “gross” and it “would not

be in the best interest of the University”.

Keown decided after seeing the questioned portion that

the film was “gross”, “offensive”, “lewd”, “unrefined”,

“erude”, “no educational value”, “coarse” (adjectives he

used at various times to deseribe the film) and that:

“It would be inappropriate for the University to con-

tinue as a contracting co-sponsor.”

He therefore decided to cancel as he had a right to do.

Under the terms of the contract the University reserved

the right to cancel.

The University, through its officials and governing body,

supported the decision of Dean Keown and agreed that his

judgment was sound, according to President Downing.

Negotiations with the Associated Students to delete “The

Fly” were fruitless, notwithstanding the producer did

agree. The University did not object to the Associated

Students showing the film off campus in a non-university

facility. When efforts to come up with some acceptable al-

ternatives failed, the booking was cancelled by the Univer-

sity as recommended by Dean Keown.

The plaintiffs contend that the University’s decision

amounied to official censorship and violated the students’

(1) right to receive information and (2) freedom of ex-

pression.

The Court has seen the questioned film in chambers and

it has been deseribed in the testimony. Briefly, it consists

of a camera focused upon what appears to be an ordinary

house fly as it evawls and meanders over, around, in, on

and about the body of a nude female model lying in bed in

a prone position on her back with her legs spread apart.

16

The camera, on occasion, zooms in for close-up showings of

the open vaginal orifice with the ever-present fly crawling

in and around the exposed area,

The travels of the fly take it to the legs, arms, nipples

of breast, ears, hair of the head, hair under the arms and

substantially the entire body of the model, all accompanied

by background music,

The Bowling Green, Kentucky, Chief of Detectives

Ashby and its Chief of Police Constance each described thc

film as “filthy” and stated that if it had been shown at a

duwntown commercial theatre it would have been illegal

and an arrest justified.

“The Fly” was unrated. The advertising material dis-

tributed in connection with the film contained a warning

that it was recommended “for mature audiences only”. Ap-

parently, at the proposed showing at Western it would not

have been so restricted.

Mr. Skates, theatre manager at Bowling Green for the

Martin chain of theatres, testified that unrated movies re-

ceive an automatic rating of “X”. He stated that “The

Fly” would not have been shown under their present policy.

Reginald Glass, Vice President of Associated Students

testified that the film was an experimental film. He ex-

plained that by that he meant it was out of the ordinary—

made by non-professionals-—designed for mature audiences

with knowledge of experimental films.

It is obvious that a coilege or university campus would

be a ecenvenient, exploitable outlet for a questionable film

which is denied the normal commercial outlets by civilian

law. However, no one has attempted to explain why the

University officials should provide a testing place for such

a film. Plaintiffs have made no effort to show that the film

Was enter(aining, educational or morally uplifting, only that

it was experimental. Many films no matter how offensive

to good taste, could qualify if this was the sole requirement.

py he VaR IA ay Wighie*

i "

17

Certainly there was no great demand from the students that

it he shown since only eight tickets had been sold in advance.

With this factual background we now proceed to a dis-

cussion of the applicable law as we conceive it to be.

This Court does have power to issue an injunction where

university Officials violate the constitutional rights of stu-

dents. Dickson vy. Setlerson, 280 F. Supp. 486,

It is settled that university students do not discard se-

cured constitutional rights upon entering a state-supported

school. Tinker v, Des Moines Independent Community

School District, 393 U. 8S. 503 (1969).

This is not to say that all surrounding facts, cireum-

stances and conditions must be either ignored or disre-

garded. It is equally well settled that no one has the right

to say anything he wants to, and at any time, and on any

occasion. Schenck v. U. S., 249 U.S. 47.

We must recognize that First Amendment rights are not

absolute. Regulation as to time, place and manner of the

exercise of such rights is proper when reasonably related

to a valid public interest. In the instant ease the Univer-

sity was burdened with the administrative responsibility

and clothed with the authority to regulate the conduct and

behavior of its siudents, particularly if it tended to threaten

achievement of its educational goals. The University had

the inherent power to formulate rules it deemed appropriate

to the maintenance of proper decorum and to prevent that

which it regarded as a reckless display of impropriety. In

doing so it should fairly consider the aceepted norms of

social behavior in the community. See Sellers v. Regents

of University of California, 482 F. 2d 493 (1970, 9th Cir.).

In the academic community greater restrictions may

prevail than in society at large, and the subtle fixing of

these limits should in a large manner be left to the eduea-

tional institution, Goldberg v. Regents of University of

California, 57 Calif, Reporter 463.

18

In Bright v. Nunn, 448 F. 2d 245 (1971, 6th Cir.) it is

held:

“There can be no question of the right of the school

official to prescribe and control conduct in the schools.

This was recognized in Tinker, supra (at 507, 89 S. Ct.

733) and by us in Norton v. Discipline Comm. of East

Tenn. State Univ., 419 F. 2d 195 (6th Cir. 1969) cert.

denied, 399 U. S. 906, 90 S. Ct. 2191, 26 L. Ed. 2d 562

(1970).”

School officials must be given wide latitude in maintain-

ing discipline and good order on campus and courts should

not set themselves up as supreme boards of review in such

matters.

The University obviously cannot surrender its responsi-

bility and allow the students the rights to unbridled self

expression. The University in this case was confronted

with a very delicate situation, it acted promptly, decisively

and reasonably. This Court does not believe it would be

wise to interfere and grant the relief demanded by the

plaintiffs. The school officials were clearly acting in ut-

most good faith and in an area where the school had a

genuine and legitimate concern.

In Epperson v. Arkansas, 393 U.S. 97, 89 S. Ct. 266,

our highest tribunal held that courts do not and camnot

intervene in the resolution of conflicts which arise in the

daily onerstion of school systems and which do not directly

and sharply implicate basic constitutional values.

A college has the inherent power to promulgate rules

wid reguiations and courts should interfere only where

there is a clear case of constitutional infringement. See

Esteban v. Central Misouri State College, 415 F. 2d 1077

(1969, 8th Cir.)

The Court is constrained to follow Close v. Lederle, 424

I’. 2d 9SS (1st Cir., 1970), which was an artist’s action for

19

a declaration that a state university's removal of his paint-

ing from the university’s art exhibit was in violation of his

rights under the Firs! and Fourteenth Amendments and for

an order for reinstatement. The Distriet Court directed

reinstatement and upon appeal it was held that where the

state university corridor in which art was exhibited was

regularly used by the public, the university officials could

consider such primary use by the public and even without

complaints received, were warranted in finding that the

plaintiff's paintings were inappropriate for exhibition

therein and, accordingly, had a right to withdraw permis-

sion for their showing. This case holds that detailed codi-

fication of all rules and regulations are not necessary on cam-

puses. In the instant case the plaintiffs has specifie and

actual notice that the University officials, and not the As-

sociated Students, had the vested right to select the con-

tents of such programs. The University was a full con-

tracting party with concomitant rights and powers respect-

ing booking arrangements for the film in question.

The Court feels that the University officials were acting

at all times herein in absolute good faith and that their ae-

tions were not improper under the facts of this case and,

in fact, consistent with the objectives of the Associated Stu-

dent government of Western Kentucky University as set

out in the preamble to its constitution which reads in part

as follows:

“To uphold and promote ideals, principles and objec-

tives of the University; by the authority of the Univer-

sity.”

Pursuant to the Federal Rules of Civil Procedure 65, all

applications for injunctive relief and the trial on the merits

are hereby consolidated. It is further Orperep that this

Memorandum and Order shall likewise constitute the

Court’s Findings of Fact and Conclusions of Law.

20

For the reasons hereinabove stated, it is the judgment

of the Court that the plaintiffs’ action be and same is hereby

dismissed. ,

June 2, 1972

(s) Rhodes Bratcher

United States District Judge