Kiley, Swygert, and Cummings, Circuit Judges.
This is an appeal from a declaratory judgment that disciplinary proceedings of the University of Wisconsin instituted on the basis of alleged "misconduct" are unconstitutional.
The named plaintiffs are ten students at the Madison campus of the University of Wisconsin and the Madison chapter of the Students for a Democratic Society. They brought this suit on October 16, 1967, for themselves and persons similarly situated. The defendants are various officials of the University of Wisconsin, the State of Wisconsin and the City of Madison allegedly involved in disciplinary actions on the Madison campus. The final complaint alleges the following pertinent facts:
On October 18, 1967, plaintiffs and others were protesting the presence of recruiting representatives of the Dow Chemical Corporation on the Madison campus. On the following day, the defendant Dean of Student Affairs wrote two of the plaintiffs and other "members of their class" that they were "suspended from the University pending a hearing before the Administrative Division of the Committee on Student Conduct and Appeals." The ground for the suspension was stated to be violation of Chapter 11.02 of the Laws and Regulations of the University of Wisconsin (see note 2, infra), and the students were informed that a hearing date would be set at a later time. By letter of October 21, 1967, the chairman of the Administrative Division advised them that the hearing would be held on November 2, and that they would be permitted to attend classes and write examinations in the interim.
On November 1, some of the plaintiffs, as well as other individuals, received "Amended Charges" from the chairman of the Administrative Division.*fn1 These charges specifically described the offensive conduct ascribed to plaintiffs, including the denial of others' rights to job interviews with the Dow Chemical Corporation by physical obstruction of the doorways and corridors of a university building. This behavior was characterized as "misconduct," as well as violative of Chapters 11.02 and 11.15 of the University Policies on the Use of Facilities and Outside Speakers (see note 2, infra).
The complaint further alleged that some of the defendants had previously expelled two plaintiffs and another member of their class "by application of the doctrine of 'misconduct'," and were threatening to suspend or expel others for "misconduct." This doctrine was alleged to be so vague and overbroad as to violate the rights of plaintiffs under the First and Fourteenth Amendments. The complaint requested a declaratory judgment that the defendants' misconduct doctrine on its face violated the United States Constitution and prayed for an injunction against further application of that doctrine as the basis for disciplinary proceedings.
For their part, defendants answered that the term "misconduct" "as a standard for disciplinary action by the University" did not violate any of the provisions of the federal Constitution.
The district court, in a scholarly opinion, held that the standard of misconduct alone may not serve as the foundation for the expulsion or suspension of students for any significant time.*fn2 295 F. Supp. 978. The court concluded that "misconduct", as so used, violates the Due Process Clause of the Fourteenth Amendment by reason of vagueness or, in the alternative, violates the First Amendment (as applied to the states by the Fourteenth Amendment) by reason of vagueness and overbreadth. Injunctive relief, however, was denied so that the University could have a reasonable time to readjust its regulations.*fn3
Defendants raise several preliminary issues which challenge the power of the district court to entertain this action. They assert that the court lacked jurisdiction under the Civil Rights Act (42 U.S.C. § 1891 et seq.) because the record fails to disclose that the plaintiffs were engaged in constitutionally protected activities. We do not agree. Plaintiffs' conduct is not determinative of jurisdiction. The proper question here is whether defendants were depriving plaintiffs of any constitutional rights regardless of the character of their behavior. In our view, jurisdiction existed because the complaint alleged that defendants' use of the doctrine of misconduct as a basis for its disciplinary proceedings subjected plaintiffs to "deprivation of * * * rights [and] privileges * * * secured by the Constitution" (42 U.S.C. § 1983). Under the Declaratory Judgment Act (28 U.S.C. § 2201 et seq.), it became appropriate for the district court to determine the legality of the misconduct standard being employed by defendants in the Amended Charges of November 1. This was not an abstract question, for plaintiffs were being charged with "misconduct" and threatened with punishment. Whether plaintiffs were entitled to relief was to be decided after the court assumed jurisdiction over the controversy. Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 90 L. Ed. 939; Sigafus v. Brown, 416 F.2d 105 (7th Cir. 1969); Snyder v. Board of Trustees, University of Illinois, 286 F. Supp. 927, 931 (N.D.Ill.1968; 3-judge court).
Likewise, the nature of the conduct attributed to plaintiffs has no effect on their standing to challenge the application of the misconduct doctrine as the basis for the proceedings taken against them. They are entitled to contend that the disciplinary proceedings were invalid deprivations of due process because based upon nonexistent or unconstitutionally vague standards. It is well settled that a statute threatening the exercise of First Amendment freedoms because of overbreadth is subject to attack
"* * * with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S. Ct. 736, 741-742, 84 L. Ed. 1093; NAACP v. Button, 371 U.S. , at 432-433, 83 S. Ct. at 337-338, 9 L. Ed. 2d 405; cf. Aptheker v. Secretary of State, 378 U.S. 500, 515-517, 84 S. Ct. 1659, 1668-1669, 12 L. Ed. 2d 992; United States v. Raines, 362 U.S. 17, 21-22, 80 S. Ct. 519, 522-523, 4 L. Ed. 2d 524. We have fashioned this exception to the usual rules governing standing, see United States v. Raines, supra, because of the '* * * danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.' NAACP v. Button, supra, 371 U.S. at 433, 83 S. Ct. at 338." Dombrowski v. Pfister, 380 U.S. 479, 486-487, 85 S. Ct. 1116, 1121, 14 L. Ed. 2d 22.
Nor can we agree with defendants that this exception to standing requirements is limited to cases presenting challenges to criminal statutes. Such a literal reading overlooks the main function of the exception. The thrust of cases such as Dombrowski lies in their attempt to counteract the "chilling effect upon the exercise of First Amendment rights" which may result from the very fact of prosecution. Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S. Ct. 1116, 14 L. Ed. 2d 22. Administrative sanctions as harsh as those available to the University in this case, as well as criminal statutes, serve to chill the exercise of free speech. It is accordingly immaterial that this controversy involves a disciplinary rule rather than a criminal statute.*fn4
Turning to the merits, defendants contend that the "misconduct" doctrine does not constitute a "standard" of conduct and that it was not employed as such. They argue that "misconduct" represents the inherent power of the University to discipline students and that this power may be exercised without the necessity of relying on a specific rule of conduct. This rationale would justify the ad hoc imposition of discipline without reference to any preexisting standards of conduct so long as the objectionable behavior could be called misconduct at some later date. No one disputes the power of the University to protect itself by means of disciplinary action against disruptive students. Power to punish and the rules defining the exercise of that power are not, however, identical. Power alone does not supply the standards needed to determine its application to types of behavior or specific instances of "misconduct." As Professor Fuller has observed: "The first desideratum of a system for subjecting human conduct to the governance of rules is an obvious one: there must be rules." Fuller, Law and Morality, p. 46 (2d printing, 1965). The proposition that government officers, including school administrators, must act in accord with rules in meting out discipline is so fundamental that its validity tends to be assumed by courts engaged in assessing the propriety of specific regulations. See Tinker v. Des Moines School District, 393 U.S. 503, 513-514, 89 S. Ct. 733, 21 L. Ed. 2d 731. The doctrines of vagueness and overbreadth, already applied in academic contexts, presuppose the existence of rules whose coherence and boundaries may be questioned. Cf. Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629; Snyder v. Board of Trustees, University of Illinois, 286 F. Supp. 927 (N.D.Ill.1968; 3-judge court); Buttny v. Smiley, 281 F. Supp. 280 (D.Colo.1968). These same considerations also dictate that ...