United States District Court, Northern District of Illinois, E.D
December 21, 1972
JEANNE RASCHE, PLAINTIFF,
BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS ET AL., DEFENDANTS.
Before Kiley, Circuit Judge, and Will and McMILLEN, District
The opinion of the court was delivered by: Will, District Judge.
Plaintiff seeks a declaration that section 504(a) of the Higher
Education Act, as amended, 20 U.S.C. § 1060(a), is
unconstitutional on its face and as applied to her, as well as an
injunction restraining defendants and their agents from enforcing
the statute against her. The section in question provides in
pertinent part as follows:
(a) If an institution of higher education determines,
after affording notice and opportunity for hearing to
an individual attending, or employed by, such
institution, that such individual has been convicted
by any court of record of any crime which was
committed after October 16, 1968, and which involved
the use of (or assistance to others in the use of)
force, disruption, or the seizure of property under
control of any institution of higher education to
prevent officials or students in such institution
from engaging in their duties or pursuing their
studies, and that such crime was of a serious nature
and contributed to a substantial disruption of the
administration of the institution with respect to
which such crime was committed, then the institution
which such individual attends, or is employed by,
shall deny for a period of two years any further
payment to, or for the direct benefit of, such
individual under any of the programs specified in
subsection (c) of this section. . . .
Plaintiff contends that the section is unconstitutionally vague
and overbroad and exerts a chilling effect on freedom of speech,
association and assembly. She asserts particularly that the
standards of "crime . . . of a serious nature" and "substantial
disruption of the administration of the institution" are so vague
and overbroad as to be invalid.
The defendants have moved to dismiss the complaint on the
ground that the statute is constitutionally valid. Since the
complaint raises a substantial constitutional issue, a
three-judge court has been convened pursuant to 28 U.S.C. § 2282
and has taken the defendants' motions under advisement on the
briefs. No further hearing has been requested or is necessary
under 28 U.S.C. § 2284. The only issue in the case is the facial
constitutionality of the statute in question. Since we find that
section 1060(a) is facially unconstitutional, the defendants'
motions to dismiss will be denied.
The facts as alleged in the complaint and which, for the
purposes of the ruling on the defendants' motions to dismiss, we
must accept as true and correct, are as follows:
Plaintiff was a graduate student in the Department of
Philosophy at the Chicago Circle Campus of the University of
Illinois during the 1970-1971 school year. She had been enabled
to pursue her studies by virtue of having received a federal loan
under the National Defense Education Act (20 U.S.C. § 421-429),
since she had no independent means of support.
On May 6, 1970, plaintiff, along with approximately 1,500 other
students, participated in a non-violent demonstration on the
Chicago Circle Campus protesting the United States involvement in
the war in Southeast Asia and the shootings at Kent State
University and Jackson State University. The demonstration began
elsewhere on the campus on May 6, 1970, but moved to the ROTC
Building on Roosevelt Road at about noon in order to protest the
existence of the ROTC program on campus. At that time, all
personnel inside were told to leave by university officials
"because there were demonstrations outside the building,
demonstrators passing leaflets, etc." Several hours later, about
50 students, including plaintiff, entered the empty building and
staged a peaceful "sit-in" demonstration in an unused part of the
building, which lasted until their arrest at approximately 10:20
P.M. on May 6.
As a result of her participation in the "sit-in" demonstration,
plaintiff was convicted of the offense of "Criminal Trespass to
State Supported Land" (Ill.Rev.Stat. ch. 38, § 21-5 (1969), a
misdemeanor, and was fined $20. On January 21, 1971, former
Chancellor Norman A. Parker notified plaintiff that her
"conviction . . ., if true, will disqualify . . . [her] from
further assistance under the N.D.E.A. student loan program."
Assistant Chancellor Robert P. Bentz was appointed hearing
officer "to determine the truth of this charge against . . .
[her]." Following a hearing conducted by University officials,
the hearing officer issued findings of fact in which he found
among other things that:
1. A demonstration of approximately 1500 persons
began outside the ROTC Building located at 728 West
Roosevelt Road, Chicago, Illinois, at approximately
1:00 P.M. on May 6, 1970.
2. The ROTC Building was closed by the
administration for security reasons sometime before
2:00 P.M., despite the normal closing hour of 5:30
P.M., because of the activities of the demonstrators
outside the building. (No finding was made as to the
nature of these "activities.")
3. A "sit-in" occurred in the ROTC Building on the
afternoon and evening of May 6, 1970, beginning at
approximately 2:30 P.M., after the building had been
closed and most of the personnel had left, and
continuing until about 10:00 P.M.
4. As a result of the ROTC Building being closed,
certain of the University placement and ROTC
personnel could not perform their duties, thus
causing a disruption of the activities of the
5. Miss Rasche freely and voluntarily participated
in the demonstration outside the building and in the
"sit-in" and, despite being ordered to leave the
building by Deputy Chief of the University Police
Arnum, remained in the building until arrested and
removed about 10:00 P.M.
6. The misdemeanor of "Criminal Trespass to State
Supported Land" is a "serious crime."
7. There was physical violence following the arrest
of Miss Rasche and the other participants which would
not have occurred but for the "sit-in" and the arrest
of the participants.
8. Miss Rasche neither injured any person nor
damaged any property before, during or after the
"sit-in" nor did she instigate, encourage, aid or
abet any such action by others.
9. Title 20 U.S.C. § 1060(a) is constitutional.
10. Miss Rasche should be declared ineligible under
the provisions of 20 U.S.C. § 1060(c) for
financial aid for a period of two years beginning
December 17, 1970.
One principal deficiency of Section 1060(a) is its failure to
adequately define a "crime of a serious nature." The use of that
phrase as a condition of disqualification brings Section 1060(a)
within the ambit of Connally v. General Construction Co.,
269 U.S. 385
, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Speaking in that
case of a "penal" statute, the court said at p. 391, 46 S.Ct. p.
127: "A statute which either forbids or requires the doing of an
act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application
violates the first essential of due process of law." Although
Section 1060(a) is not a penal statute, its effect is punitive
and subjects it to the same test. Cf. Kennedy v.
Mendoza-Martinez, 372 U.S. 144
, 83 S.Ct. 554, 9 L.Ed.2d 644
(1963); Soglin v. Kauffman, 418 F.2d 163
(7 Cir. 1969).
The phrase "crime of a serious nature" does not have a
generally understood meaning, is not one commonly used in the law
or elsewhere, and can mean different things to different persons.
A somewhat more precise phrase, "misdemeanor involving moral
turpitude," was held unconstitutionally vague in Corporation of
Haverford College v. Reeher, 329 F. Supp. 1196 (E.D.Pa. 1971). In
short, the term "crime of a serious nature" is too susceptible of
subjective interpretation to fairly advise in advance what in
fact a student is forbidden to do. A student has a right to fair
warning under the Fourteenth Amendment to our Constitution, and
the failure to give this warning violates the First Amendment.
See Giaccio v. Pennsylvania, 382 U.S. 399, 402-403, 86 S.Ct. 518,
15 L.Ed.2d 447 (1966).
While the action of the hearing officer in the instant case in
finding that the misdemeanor of which Miss Rasche was convicted
and fined $20 was a "serious crime" does not necessarily prove
the vagueness of the term, it demonstrates that one presumably
intelligent individual, the Assistant Chancellor of the
University, believed that a minor offense could properly be found
to be a "serious crime." This pragmatic demonstration of the
ambiguity of the phrase supports the conclusion that it is so
susceptible of subjective interpretation as to be
The other standard of Section 1060(a) challenged by plaintiff
is the requirement that the serious crime shall have "contributed
to a substantial disruption of the administration of the
institution." This provision has two criteria which are either
vague, overbroad or both. The first is the requirement that the
action which constituted the serious crime "contributed to" a
substantial disruption. Must the causal relationship between the
action and the disruption be direct and substantial or may it be
remote and minute?
The instant case again demonstrates the potentialities of such
vague language. Apparently, as the hearing officer found, the
ROTC Building was closed by the administration at about 2:00 P.M.
because there were demonstrators on the sidewalk outside. This
caused the placement and ROTC personnel to terminate their work
for the day. This action constituted the disruption which the
hearing officer found had occurred. It was followed by the
"sit-in" which started at 2:30 P.M., and continued until 10:00
P.M. when plaintiff and the other participants were arrested. Yet
the hearing officer, the University's
Assistant Chancellor, had no apparent difficulty in finding that
the "sit-in" which started a half hour after the building had
been closed "contributed" to the disruption. It may be urged that
the hearing officer simply misapplied the language of the
statute, but vague language is susceptible of subjective
interpretation or complete misinterpretation. This is precisely
why penal or punitive statutes must be sufficiently precise as to
give fair notice to persons whose actions may be subject to them
as well as to provide effective standards for adjudication of
their applicability. If a statute is so obscure that men of
common intelligence must guess at its meaning or differ as to its
applicability, it is unconstitutionally vague. See Connally v.
General Construction Co., supra; Landry v. Daley, 280 F. Supp. 938
(N.D.Ill. 1968), rev'd on other grds. sub nom. Boyle v. Landry,
401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971).
The foregoing observations are equally applicable to the phrase
"substantial disruption of the administration of the
institution." Similar language in a Pennsylvania statute was
considered by a three-judge court in Corporation of Haverford
College v. Reeher, supra. The court there concluded (329 F. Supp.
Thus, a heavy penalty of deprivation of financial aid
eligibility rides on the university's interpretation
of words without any guiding standard. The student
could not possibly know what would be a disruption in
the opinion of the school, an opinion which may vary
widely from institution to institution and from time
to time. Under the statute, the word "disruption"
acquires only such meaning as any given institution
may attach to it at any given time. The subsection
cannot constitutionally stand in the face of such
The instant case once again is pragmatic proof of the wisdom of
the foregoing observations. The University's reaction to
demonstrators on the sidewalk was to close the ROTC Building
three and one-half hours earlier than the usual closing time. Was
this a "substantial disruption to the administration" of the
University? The Assistant Chancellor concluded that it was. The
peaceful "sit-in" followed and was terminated by the arrest of
the participants that evening. The next day business as usual
presumably resumed in the ROTC Building.
In this connection, it may be observed that at least as applied
by the Assistant Chancellor, the statute is overbroad in that it
penalizes conduct protected by the First Amendment. The
demonstrations on the sidewalk outside the building were clearly
within the demonstrators' rights to free speech, association and
assembly. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84
L.Ed. 1093 (1940). Even the peaceful "sit-in" at least up to the
time the participants were ordered to leave the building, was
protected activity. See Garner v. Louisiana, 368 U.S. 157, 82
S.Ct. 248, 7 L.Ed.2d 207 (1961).
Defendants urge that the ambiguous provisions of Section
1060(a) are saved by Section 1060(d) which provides:
(3) Nothing in this section shall be construed to
limit the freedom of any student to verbal expression
of individual views or opinions.
This subsection preserves only the freedom of "verbal" expression
whereas the First Amendment also guarantees such rights as
peaceful picketing and wearing arm bands to protest the war.
Tinker v. Des Moines Independent Community School District,
393 U.S. 503
, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Obviously the
proviso is and was ineffective here to preserve the plaintiff's
freedom of expression under the First Amendment.
One final obvious observation may be appropriate. Nothing here
said or decided is intended to imply that Congress may not
properly condition or withdraw federal aid to students under
appropriately precise standards. The language of Section 1060(a),
however, falls far
short of the minimum precision which due process demands.
The motions to dismiss the complaint are denied. Since the only
issue raised by the parties is the constitutionality of Section
1060(a), and since our conclusion is that the statute is facially
invalid, no additional pleadings by the parties appear necessary.
Accordingly, a declaratory judgment and injunction consistent
with the foregoing will be entered.
McMILLEN, District Judge (concurring).
Although I concur with the result reached in the foregoing
Opinion, I do not agree that the phrase "contributed to a
substantial disruption of the administration of the institution"
is unconstitutionally vague or overbroad when read in the context
of the balance of Section 1060. Starting with the precept that a
Congressional enactment should be upheld if possible,
particularly when life or liberty are not at stake, I am
persuaded that the foregoing term is specific enough to give a
student fair warning of the kind of conduct which could
jeopardize her federal assistance. Furthermore, the offender is
given the added protection of a hearing by an official who is
presumably qualified to apply this particular phrase, even though
he might not be able to identify a "crime of a serious nature."
Few, if any, legislative enactments are flawless, and the
courts' objective is to enforce them, not to edit them. This is
particularly true in the case of a statute by which the Congress
has expressed an important public policy. The Senate Committee
Report which accompanied the bill stated:
The committee has been dismayed and alarmed by
evidence of student unrest on the college campuses of
this country which has been outwardly evidenced by
rioting, trespass and forceful interference with the
administration of the colleges and with the
activities of students who wish to pursue their
studies. Such activity is not to be countenanced in a
society such as ours. Peaceful picketing and free
speech are treasured rights which must be protected
but unlawful and violent conduct cannot be condoned.
[1968 U.S.Code, Cong. & Admin. News, pp. 4035,
Although there is no satisfactory objective measure by which to
test a statutory phrase, the Supreme Court in Cameron et al. v.
Johnson et al., 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182
(1968) sustained a Mississippi statute which prohibited
picketing ". . . in such a manner as to obstruct or unreasonably
interfere with free ingress or egress to and from any . . .
county . . . courthouses. . . ." At 390 U.S. p. 616, at 88 S.Ct.
p. 1338, the Court stated:
The terms "obstruct" and "unreasonably interfere"
plainly require no "guess[ing] at [their] meaning."
Appellants focus on the word "unreasonably." It is a
widely used and well understood word and clearly so
when juxtaposed with "obstruct" and "interfere." We
conclude that the statute clearly and precisely
delineates its reach in words of common
understanding. It is "a precise and narrowly drawn
regulatory statute evincing a legislative judgment
that certain specific conduct be . . .
The phrase "substantial disruption of the institution" leaves
only a little more to the imagination than does the phrase in the
Mississippi anti-picketing statute and, in my judgment,
adequately advises a student and the hearing officer of the
conduct which Congress intended to proscribe. If the foregoing
quoted words pass muster, the balance of the phrase in Section
1060 should not require us to invalidate the statute. With all
due respect, I believe that the majority's concern with the
particular words in issue is based on an undue involvement with
semantics such as the Supreme Court warned against in Cole v.
Richardson, 397 U.S. 238
at 240, 90 S.Ct. 1099
, 25 L.Ed.2d 275
© 1992-2003 VersusLaw Inc.