Papish v. Board of Curators of University of Missouri


PAPISH v. BOARD OF CURATORS OF THE UNIVERSITY OF MISSOURI ET AL.
No. 72-794
SUPREME COURT OF THE UNITED STATES
410 U.S. 667

March 19, 1973, Decided

PER CURIAM

Petitioner, a graduate student in the University of Missouri Schoolof Journalism, was expelled for distributing on campus a newspaper "containingforms of indecent speech" in violation of a bylaw of the Board of Curators.The newspaper, the Free Press Underground, had been sold on this stateuniversity campus for more than four years pursuant to an authorizationobtained from the University Business Office. The particular newspaperissue in question was found to be unacceptable for two reasons. First,on the front cover the publishers had reproduced a political cartoon previouslyprinted in another newspaper depicting policemen raping the State of Libertyand the Goddess of Justice. The caption under the cartoon read: ". . .With Liberty and Justice for All." Secondly, the issue contained an articleentitled "M --f -- Acquitted," which discussedthe trial and acquittal on an assault charge of a New York City youth whowas a member of an organization known as "Up Against the Wall, M --f --."

Following a hearing, the Student Conduct Committee found that petitionerhad violated Par. B of Art. V of the General Standards of Student Conductwhich requires students "to observe generally accepted standards of conduct"and specifically prohibits "indecent conduct or speech." Her expulsion,after affirmance first by the Chancellor of the University and then byits Board of Curators, was made effective in the middle of the spring semester.Although she was then permitted to remain on campus until the end of thesemester, she was not given credit for the one course in which she madea passing grade. (n1)

[Footnote 1: Miss Papish, a 32-year-old graduate student, was admittedto the graduate school of the University in September 1963. Five and one-halfyears later, when the episode under consideration occurred, she was stillpursuing 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 Studentsfor a Democratic Society literature found at a university hearing to havecontained "pornographic, indecent and obscene words." This disseminationhad occurred at a time when the University was host to high school seniorsand their parents. . But disenchantment with Miss Papish's performance,understandable as it may have been, is no justification for denial of constitutionalrights.]

After exhausting her administrative review alternatives within the University,petitioner brought an action for declaratory and injunctive relief pursuantto 42 U. S. C. ? 1983 in the United States District Court for theWestern District of Missouri. She claimed that her expulsion was improperlypremised on activities protected by the First Amendment. The District Courtdenied relief, 331 F.Supp. 1321, and the Court of Appeals affirmed, onejudge dissenting. 464 F.2d 136. Rehearing en banc was denied byan equally divided vote of all the judges in the Eighth Circuit.

This case was decided several days before we handed down Healyv. James, 408 U.S. 169 (1972), in which, while recognizinga state university's undoubted prerogative to enforce reasonable rulesgoverning student conduct, we reaffirmed that "state colleges and universitiesare not enclaves immune from the sweep of the First Amendment." We think

Healymakes it clear that the mere dissemination of ideas -- no matter how offensiveto good taste -- on a state university campus may not be shut off in thename alone of "conventions of decency." Other recent precedents of thisCourt make it equally clear that neither the political cartoon nor theheadline story involved in this case can be labeled as constitutionallyobscene or otherwise unprotected. There is language in the opinions belowwhich suggests that the University's action here could be viewed as anexercise of its legitimate authority to enforce reasonable regulationsas to the time, place, and manner of speech and its dissemination. Whilewe have repeatedly approved such regulatory authority, the facts set forthin the opinions below show clearly that petitioner was expelled becauseof the disapproved content of the newspaper rather than the time,place, or manner of its distribution.

It is true, as MR. JUSTICE REHNQUIST's dissent indicates, that the DistrictCourt emphasized that the newspaper was distributed near the University'smemorial tower and concluded that petitioner was engaged in "pandering."The opinion makes clear, however, that the reference to "pandering" wasaddressed to the content of the newspaper and to the organization on thefront page of the cartoon and the headline, rather than to the manner inwhich the newspaper was disseminated. The charge against petitionerwas quite unrelated to either the place or manner of distribution. TheDean's charge stated that the "forms of speech" contained in the newspaperwere "improper on the University campus." Thus, in the absence ofany disruption of campus order or interference with the rights of others,the sole issue was whether a state university could proscribe this formof expression.

Since the First Amendment leaves no room for the operation of a dualstandard in the academic community with respect to the content of speech,and because the state University's action here cannot be justified as anondiscriminatory application of reasonable rules governing conduct, thejudgments of the courts below must be reversed. Accordingly the petitionfor a writ of certiorari is granted, the case is remanded to the DistrictCourt, and that court is instructed to order the University to restoreto petitioner any course credits she earned for the semester in questionand, unless she is barred from reinstatement for valid academic reasons,to reinstate her as a student in the graduate program.

Reversed and remanded.

MR. CHIEF JUSTICE BURGER, dissenting.

In theory, at least, a university is not merely an arena for the discussionof ideas by students and faculty; it is also an institution where individualslearn to express themselves in acceptable, civil terms. We provide thatenvironment to the end that students may learn the self-restraint necessaryto the functioning of a civilized society and understand the need for thoseexternal restraints to which we must all submit if group existence is tobe tolerable.

I find it a curious -- even bizarre -- extension of [our prior holdings]to say that a state university is impotent to deal with conduct such asthat of the petitioner. Students are, of course, free to criticize theuniversity, its faculty, or the Government in vigorous, or even harsh,terms. But it is not unreasonable or violative of the Constitution to subjectto disciplinary action those individuals who distribute publications whichare at the same time obscene and infantile. To preclude a state universityor college from regulating the distribution of such obscene materials doesnot protect the values inherent in the First Amendment; rather, it demeansthose values. The anomaly of the Court's holding today is suggested byits use of the now familiar "code" abbreviation for the petitioner's foullanguage.

The judgment of the Court of Appeals was eminently correct. It shouldbe affirmed.

MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICEBLACKMUN join, dissenting.

We held in Healy v. James (1972), that "state collegesand universities are not enclaves immune from the sweep of the First Amendment."But that general proposition does not decide the concrete case now beforeus. Healy held that the public university there involved had notafforded adequate notice and hearing of the action it proposed to takewith respect to the students involved. Here the Court of Appeals found,and that finding is not questioned in this Court's opinion, that "the issuearises in the context of a student dismissal, after service of writtencharges and after a full and fair hearing, for violation of a Universityrule of conduct."

I

Petitioner Papish has for many years been a graduate student at theUniversity of Missouri. Judge Stephenson, writing for the Court of Appealsin this case, summarized her record in these words:

"Miss Papish's academic record reveals that she was in no rush to completethe requirements for her graduate degree in Journalism. She possesses a1958 academic degree from the University of Connecticut; she was admittedto 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 progresstoward the achievement of her stated academic objective. At the time ofher dismissal, Miss Papish was enrolled in a one-hour course entitled 'ResearchJournalism' and in a three-hour course entitled 'Ceramics 4.' In the semesterimmediately preceding her dismissal, she was enrolled only in 'Ceramics3.'"

Whatever may have been her lack of ability or motivation in the academicarea, petitioner had been active on other fronts. In the words of the Courtof Appeals:

"On November 1, 1967, the Faculty Committee on Student Conduct, afternotice of charges and a hearing, placed Miss Papish on disciplinary probationfor the remainder of her student status at the University. The basis forher 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 andtheir parents for the purpose of acquainting them with its educationalprograms and other aspects of campus life. She specifically was charged,interalia, with openly distributing, on University grounds, without thepermission of appropriate University personnel, two non-University publicationsof the Students for Democratic Society (SDS). It was alleged in the noticeof charges, and apparently established at the ensuing hearing, that oneof 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,TheCIA at College: Into Twilight and Back, contained 'a pornographic andindecent picture depicting two rats apparently fornicating on its cover. . . .'

"Some two weeks prior to the incident causing her dismissal, Miss Papishwas placed on academic probation because of prolonged submarginal academicprogress. It was a condition of this probation that she pursue satisfactorywork on her thesis, and that such work be evidenced by the completion andpresentation of several completed chapters to her thesis advisor by theend of the semester. By letter dated January 31, 1969, Miss Papish wasnotified that her failure to comply with this special condition withinthe time specified would result in the termination of her candidacy fora graduate degree."

It was in the light of this background that respondents finally expelledpetitioner for the incident described in the Court's opinion. The Courtfails to note, however, two findings made by the District Court with respectto the circumstances under which petitioner hawked her newspaper near thememorial tower of the University:

"The Memorial Tower is the central unit of integrated structures dedicatedto the memory of those students who died in the Armed Services in WorldWars I and II. Other adjacent units include the Student Union and a Non-Sectarianchapel for prayer and meditation. Through the Memorial Arch pass parentsof students, guests of the University, students, including many personsunder 18 years of age and high school students."

"The plaintiff knowingly and intentionally participated in distributingthe publication to provoke a confrontation with the authorities by panderingthe publication with crude, puerile, vulgar obscenities."

II

I continue to adhere to the dissenting views expressed in Rosenfeldv. New Jersey, 408 U.S. 901 (1972), that the public use of the word"M --f --" is "lewd and obscene" as those termswere used by the Court in Chaplinsky v. New Hampshire, 315U.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 raiseany Constitutional problem. These include the lewd and obscene, the profane,the libelous, and the insulting or 'fighting' words -- those which by theirvery utterance inflict injury or tend to incite an immediate breach ofthe peace. It has been well observed that such utterances are no essentialpart of any exposition of ideas, and are of such slight social value asa step to truth that any benefit that may be derived from them is clearlyoutweighed by the social interest in order and morality."

But even were I convinced of the correctness of the Court's dispositionof Rosenfeld, I would not think it should control the outcome ofthis case. It simply does not follow under any of our decisions or fromthe language of the First Amendment itself that because petitioner couldnot be criminally prosecuted by the Missouri state courts for the conductin question, she may not therefore be expelled from the University of Missourifor the same conduct. A state university is an establishment for the purposeof educating the State's young people, supported by the tax revenues ofthe State's citizens. The notion that the officials lawfully charged withthe governance of the university have so little control over the environmentfor which they are responsible that they may not prevent the public distributionof a newspaper on campus which contained the language described in theCourt's opinion is quite unacceptable to me, and I would suspect wouldhave been equally unacceptable to the Framers of the First Amendment. Thisis indeed a case where the observation of a unanimous Court in Chaplinskythat "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 benefitthat may be derived from them is clearly outweighed by the social interestin order and morality" applies with compelling force.

III

The Court cautions that "disenchantment with Miss Papish's performance,understandable as it may have been, is no justification for denial of constitutionalrights." Quite so. But a wooden insistence on equating, for constitutionalpurposes, the authority of the State to criminally punish with its authorityto exercise even a modicum of control over the university which it operates,serves neither the Constitution nor public education well. There is reasonto think that the "disenchantment" of which the Court speaks may, afterthis decision, become widespread among taxpayers and legislators. The systemof tax-supported public universities which has grown up in this countryis one of its truly great accomplishments; if they are to continue to growand thrive to serve an expanding population, they must have something morethan the grudging support of taxpayers and legislators. But one can scarcelyblame the latter if, told by the Court that their only function is to supplytax money for the operation of the university, the "disenchantment" mayreach such a point that they doubt the game is worth the candle.