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December 21, 1972


Before Kiley, Circuit Judge, and Will and McMILLEN, District Judges.

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 parties' 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 ...

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