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SNYDER v. BOARD OF TRUSTEES OF UNIVERSITY OF ILL.

July 11, 1968

MICHAEL SNYDER ET AL., PLAINTIFFS,
v.
THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, NORMAN A. PARKER AND H.W. BAILEY, DEFENDANTS.



Before Kiley, Circuit Judge, and Decker and Napoli, District Judges.

The opinion of the court was delivered by: Napoli, District Judge.

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This is a class action, brought on behalf of all students enrolled at the University of Illinois, including the specified subclass of all members of the "Illini Humanists" (hereinafter referred to as the "Humanists"), a voluntary unincorporated association of students on the Chicago Circle Campus of the University of Illinois. The Humanists are an officially recognized student organization at the Circle Campus of the University of Illinois. Several faculty members at the Circle Campus have also joined as plaintiffs, representing the class of all faculty members at the University of Illinois.

Defendant Board of Trustees of the University of Illinois (hereinafter referred to as the "Board") is a body corporate entrusted with the government of the University of Illinois, including supervision of lands and buildings and other property belonging to the University, both at its campus in Chicago, and at the campus in Champaign, Illinois. Individual defendants Norman A. Parker and H.W. Bailey are, respectively, a vice president and an assistant vice president of the University, who are in charge of the adminstration of the Chicago Circle Campus, and are authorized to act as agents of the Board.

It is stipulated that the University, under supervision of the Board, permits the use of its facilities by recognized student organizations, including the Humanists, for the purpose of holding meetings at which guest speakers from off campus are presented. On several occasions the Board has permitted the Humanists and other student organizations to invite highly controversial speakers to address their meetings.

The present dispute between the parties results from the persistent refusal of defendants to allow one Louis Diskin, a member of the Communist party of the United States, to speak at Humanist on campus meetings, on such topics as "Communism and Youth", "The Communist Party Platform" and "Views of the Communist Party Regarding Proposed Action Concerning the War in Vietnam, Civil Rights, etc.," unless the student officers of the Humanists, and their faculty advisor, plaintiff Bartky, give prior written assurances that "the proposed speech by Mr. Louis Diskin * * * will not carry on, advertise or publicize the subversive and seditious activities of the Communist Party, U.S.A., and that, to the best of (your) knowledge, no violation of law will occur in connection with the speech." The speaker, Louis Diskin was also required to execute such assurances as a condition to permission being granted. Plaintiffs on several occasions invited Diskin to speak but refused to give the written assurances, and in each case defendants refused to permit the proposed meeting. In an affidavit filed in this cause, defendant Parker admits that if the requested assurances had been filed on any of these occasions, he would have permitted Diskin to speak at the Humanist meeting.

The sole reason given by defendants for cancellation of the various Humanist meetings is that the scheduled meetings and speeches would violate the provisions of a statute of the State of Illinois, Illinois Revised Statutes, Chapter 144, Section 48.8 (hereinafter referred to as the "Clabaugh Act"), which provides as follows,

  No trustee, official, instructor, or other
employee of the University of Illinois shall extend
to any subversive, seditious, and un-American
organization, or to its representatives, the use of
any facilities of the University for the purpose of
carrying on, advertising or publicizing the
activities of such

  organization. 1947, Aug. 8, Laws 1947, p. 1746,
§ 1.

Plaintiffs ask that this Court declare the Clabaugh Act illegal and void on its face and as applied, for contravention of the First and Fourteenth Amendments to the Constitution of the United States, and that defendants be permanently enjoined from enforcing the Clabaugh Act in so far as it relates to the rights of plaintiffs. Since this is an action seeking an injunction restraining the enforcement of a state statute on the grounds of its repugnance to the United States Constitution, a three judge Court was convened. 28 U.S.C. § 2281.

All material facts herein have either been stipulated by the parties or admitted in the answer. Thus plaintiffs' pending motion for summary judgment presents only issues of law for determination by this Court.

I. Jurisdiction over the subject matter

Jurisdiction lies properly here under 28 U.S.C. § 1343(3) and (4). Defendants contend that, since plaintiffs have no constitutional right to use university lecture halls, they have failed to allege a cause of action within the ambit of the Civil Rights Act. Whether this is the correct characterization of plaintiffs' action, and whether, as a matter of law, the constitutional rights of plaintiffs have been violated, must be determined after the Court assumes jurisdiction. Assertion of a non-frivolous claim of a federal right, and the alleged denial of that right by defendants, is sufficient to preclude a dismissal for want of federal jurisdiction, and judgment must be on the merits. cf. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

II. Class action

Rule 23 of the Federal Rules of Civil Procedure requires that the Court determine whether the action is properly maintained as a class action, and if so, whether and to what extent other members of the class shall be notified of the pendency of the action. We find that all the necessary prerequisites to a class action are present here. It is immaterial that some members of the student body at the University of Illinois, or that some members of the faculty, may not approve of the maintenance of this lawsuit. The constitutionality vel non of the Clabaugh Act has been called into question in an actual controversy between the named plaintiffs and the defendants. Resolution of this issue will, as a practical matter, be dispositive of the rights of all other members of the class, whether or not they approve of the maintenance of this suit. Although it is scarcely conceivable that any member of the various classes and subclasses of plaintiffs will be prejudiced by our order today, pursuant to Rule 23(c)(2) of the Federal Rules of Civil Procedure, leave will be given any member of the classes represented by plaintiffs here to enter an appearance through counsel within the next thirty days, in order to request exclusion from, or modification of, our judgment today. Finally, we note from the record the extensive publicity that has been given this case, both in the newspapers and ...


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