Papish v. Board of Curators of the University of Missouri
Opinion of the Court
Petitioner, a graduate student in the University of Missouri School of Journalism, was expelled for distributing on campus a newspaper “containing forms of indecent speech”
Following a hearing, the Student Conduct Committee found that petitioner had violated Par. B of Art. Y of the General Standards of Student Conduct which requires students “to observe generally accepted standards of conduct” and specifically prohibits “indecent conduct or speech.”
After exhausting her administrative review alternatives within the University, petitioner brought an action
The District Court's opinion rests, in part,
This case was decided several days before we handed down Heady v. James, 408 U. S. 169 (1972), in which, while recognizing a state university’s undoubted preroga
Reversed and remanded.
This charge was contained in a letter from the University’s Dean of Students, which is reprinted in the Court of Appeals’ opinion. 464 F. 2d 136, 139 (CA8 1972).
In pertinent part, the bylaw states:
''Students enrolling in the University assume an obligation and are expected by the University to conduct themselves in a manner compatible with the University's functions and missions as an educational institution. For that purpose students are required to observe generally accepted standards of conduct. . . . [I]ndecent conduct or speech . . . are examples of conduct which would contravene this standard. . . .” 464 F. 2d, at 138.
Miss Papish, a 32-year-old graduate student, was admitted to the graduate school of the University in September 1963. Five and one-half years later, when the episode under consideration occurred, she was still pursuing her graduate degree. She was on "academic probation” because of “prolonged submarginal academic progress,” and since November 1, 1967, she also had been on disciplinary probation for disseminating Students for a Democratic Society literature found at a university hearing to have contained “pornographic, indecent and obscene words.” This dissemination had occurred at a time when the University was host to high school seniors and their parents. 464 F. 2d, at 139 nn. 3 and 4. But disenchantment with Miss Papish's performance, understandable as it may have been, is no justification for denial of constitutional rights.
Prefatorily, the District Court held that petitioner, who was a nonresident of Missouri, was powerless to complain of her dismissal because she enjoyed no “federally protected or other right to attend a state university of a state of which she is not a domiciled resident.” 331 F. Supp. 1321, 1326. The Court of Appeals, because it affirmed on a different ground, deemed it “unnecessary to comment” upon this rationale. 464 F. 2d, at 141 n. 9. The District Court’s reasoning is directly inconsistent with a long line of controlling decisions of this Court. See Perry v. Sindermann, 408 U. S. 593, 596-598 (1972), and the cases cited therein.
Under the authority of Gooding and Cohen, we have reversed or vacated and remanded a number of cases involving the same expletive used in this newspaper headline. Cason v. City of Columbus, 409 U. S. 1053 (1972); Rosenfeld v. New Jersey, 408 U. S. 901 (1972); Lewis v. City of New Orleans, 408 U. S. 913 (1972); Brown v. Oklahoma, 408 U. S. 914 (1972). Cf. Keefe v. Geanakos, 418 F. 2d 359, 361 and n. 7 (CA1 1969).
It is true, as Mr. Justice Rehnquist’s dissent indicates, that the District Court emphasized that the newspaper was distributed near the University’s memorial tower and concluded that petitioner was engaged in “pandering.” The opinion makes clear, however, that the reference to "pandering” was addressed to the content of the news
Dissenting Opinion
dissenting.
We held in Healy v. James, 408 U. S. 169, 180 (1972), that “state colleges and universities are not enclaves immune from the sweep of the First Amendment.” But that general proposition does not decide the concrete case now before us. Healy held that the public university there involved had not afforded adequate notice and hearing of the action it proposed to take with respect to the students involved. Here the Court of Appeals found, and that finding is not questioned in this Court’s opinion, that “the issue arises in the context of a student dismissal, after service of written charges and after a full and fair hearing, for violation of a University rule of conduct.” 464 F. 2d 136, 138.
Both because I do not believe proper exercise of our jurisdiction warrants summary reversal in a case dependent in part on assessment of the record and not squarely governed by one of our decisions, and because I have serious reservations about the result reached by the Court, I dissent from the summary disposition of this case.
I
Petitioner Papish has for many years been a graduate student at the University of Missouri. Judge Stephenson, writing for the Court of Appeals in this case, summarized her record in these words:
“Miss Papish’s academic record reveals that she was in no rush to complete the requirements for her grad*674 uate degree in Journalism. She possesses a 1958 academic degree from the University of Connecticut; she was admitted to graduate school at the University of Missouri in September in 1963; and although she attended school through the fall, winter, and summer semesters, she was, after 6 years of work, making little, if any, significant progress toward the achievement of her stated academic objective. At the time of her dismissal, Miss Papish was enrolled in a one-hour course entitled ‘Research Journalism’ and in a three-hour course entitled ‘Ceramics 4.’ In the semester immediately preceding her dismissal, she was enrolled only in ‘Ceramics 3.’ ” 464 F. 2d, at 138 n. 2.
Whatever may have been her lack of ability or motivation in the academic area, petitioner had been active on other fronts. In the words of the Court of Appeals:
“3. On November 1, 1967, the Faculty Committee on Student Conduct, after notice of charges and a hearing, placed Miss Papish on disciplinary probation for the remainder of her student status at the University. The basis for her probation was her violation of the general standard of student conduct.... This action arose out of events which took place on October 14, 1967 at a time when the University was hosting high school seniors and their parents for the purpose of acquainting them with its educational programs and other aspects of campus life. She specifically was charged, inter alia, with openly distributing, on University grounds, without the permission of appropriate University personnel, two non-University publications of the Students for Democratic Society (SDS). It was alleged in the notice of charges, and apparently established at*675 the ensuing hearing, that one of these publications, the New Left Notes, contained ‘pornographic, indecent and obscene words, “f — ,” “bull s — ,” and “sh--s.” ’ The notice of charges also recites that the other publication, The CIA at College: Into Twilight and Back, contained ‘a pornographic and indecent picture depicting two rats apparently fornicating on its cover . . .
“4. Some two weeks prior to the incident causing her dismissal, Miss Papish was placed on academic probation because of prolonged submarginal academic progress. It was a condition of this probation that she pursue satisfactory work on her thesis, and that such work be evidenced by the completion and presentation of several completed chapters to her thesis advisor by the end of the semester. By letter dated January 31, 1969, Miss Papish was notified that her failure to comply with this special condition within the time specified would result in the termination of her candidacy for a graduate degree.” Id., at 138-139, nn. 3, 4.
It was in the light of this background that respondents finally expelled petitioner for the incident described in the Court’s opinion. The Court fails to note, however, two findings made by the District Court with respect to the circumstances under which petitioner hawked her newspaper near the memorial tower of the University:
“The Memorial Tower is the central unit of integrated structures dedicated to the memory of those students who died in the Armed Services in World Wars I and II. Other adjacent units include the Student Union and a Non-Sectarian chapel for prayer and meditation. Through the Memorial Arch pass parents of students, guests of the University, stu*676 dents, including many persons under 18 years of age and high school students.” 331 F. Supp. 1321, 1325 n. 4.
“The plaintiff knowingly and intentionally participated in distributing the publication to provoke a confrontation with the authorities by pandering the publication with crude, puerile, vulgar obscenities.” Id., at 1325.
II
I continue to adhere to the dissenting views expressed in Rosenfeld v. New Jersey, 408 U. S. 901 (1972), that the public use of the word “M-f-” is “lewd and obscene” as those terms were used by the Court in Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). There the Court said:
“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Id., at 571-572.
But even were I convinced of the correctness of the Court’s disposition of Rosenfeld, I would not think it should control the outcome of this case. It simply does not follow under any of our decisions or from the language of the First Amendment itself that because peti
Ill
The Court cautions that “disenchantment with Miss Papish’s performance, understandable as it may have been, is no justification for denial of constitutional rights.” Quite so. But a wooden insistence on equating, for constitutional purposes, the authority of the State to criminally punish with its authority to exercise even a modicum of control over the university which it operates, serves neither the Constitution nor public education well. There is reason to think that the “disenchantment” of which the Court speaks may, after this decision, become widespread among taxpayers and legislators. The system of tax-supported public universities which has grown up
Dissenting Opinion
dissenting.
I join the dissent of Justice Rehnquist which follows and add a few observations.
The present case is clearly distinguishable from the Court’s prior holdings in Cohen, Gooding, and Rosenfeld,
In theory, at least, a university is not merely an arena for the discussion of ideas by students and faculty; it is also an institution where individuals learn to express themselves in acceptable, civil terms. We provide that environment to the end that students may learn the self-restraint necessary to the functioning of a civilized society and understand the need for those external restraints to which we must all submit if group existence is to be tolerable.
I find it a curious — even bizarre — extension of Cohen, Gooding, and Rosenfeld to say that a state university is impotent to deal with conduct such as that of the petitioner. Students are, of course, free to criticize the university, its faculty, or the Government in vigorous, or even harsh, terms. But it is not unreasonable or violative of the Constitution to subject to disciplinary action those individuals who distribute publications which are at the same time obscene and infantile. To preclude a state university or college from regulating the distribution of such obscene materials does not protect the values inherent in the First Amendment; rather, it demeans those values. The anomaly of the Court's holding today is
The judgment of the Court of Appeals was eminently correct. It should be affirmed.
Cohen v. California, 403 U. S. 15, 27 (1971) (Blackmun, J., with whom Burger, C. J., and Black, J., joined, dissenting); Gooding v. Wilson, 405 U. S. 518, 528 (1972) (Burger, C. J., dissenting), 534 (Blackmun, J., dissenting); Rosenfeld v. New Jersey, 408 U. S. 901, 902 (1972) (Burger, C. J., dissenting), 903 (Powell, J., dissenting), 909 (Rehnquist, J., dissenting).
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