United States District Court, Northern District of Illinois, E.D
December 11, 1973
UNDERGRADUATE STUDENT ASSOCIATION ET AL., PLAINTIFFS,
JACK W. PELTASON ET AL., DEFENDANTS.
Before Swygert, Circuit Judge, and Will and McLAREN, District
The opinion of the court was delivered by: McLAREN, District Judge:
MEMORANDUM OPINION AND ORDER
In recent years, college campuses across the Nation were swept
by an unprecedented wave of student unrest. Healy v. James,
408 U.S. 169, 171, 92 S. Ct. 2338, 33 L.Ed.2d 266 (1972). In response
to increasing violence, Congress and the legislatures of a
majority of the states enacted measures dealing with student
conduct. Comment, State Legislative Response to Campus Disorder:
An Analytical Compendium, 10 Houston L.Rev. 930, 932-33 (1973).
the Undergraduate Student Association of the University of
Illinois at Champaign and individual students at that university,
seek declaratory and injunctive relief against one such statute,
Ill. Rev.Stat. ch. 122, § 30-17,*fn1 "Revocation of Scholarship
Because of Misconduct." The matter is now before this three-judge
court upon plaintiffs' motion for summary judgment declaring that
section of the Illinois School Code to be unconstitutional on its
Plaintiffs' principal challenge*fn3 to § 30-17 is on the
grounds of vagueness and overbreadth under the First and
Fourteenth Amendments to the Constitution. Because of the
difficulty in applying these concepts, particularly in the area
of student conduct, the Court will first examine their basis and
the general standards governing their use.
The classic statement of the vagueness doctrine was first made
in Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct.
126, 127, 70 L.Ed. 322 (1926):
"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."
Because we can never expect our language to possess the precision
and certainty of mathematical symbols, Grayned v. City of
Rockford, 408 U.S. 104
, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222
(1972); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337
340, 72 S.Ct. 329, 96 L.Ed. 367 (1952), the root of the doctrine
has been characterized as simply "a rough idea of fairness."
Colten v. Kentucky, 407 U.S. 104
, 110, 92 S.Ct. 1953, 32 L.Ed.2d
584 (1972). Impermissibly vague laws offend this standard of
fairness because they may trap unintentional wrongdoers and
encourage arbitrary and erratic enforcement. Grayned v. City of
Rockford, supra, 408 U.S. at 108-109, 92 S.Ct. 2294, 33 L.Ed.2d
222; Papachristou v. City of Jacksonville, 405 U.S. 156
, 162, 92
S.Ct. 839, 31 L.Ed.2d 110 (1972).
Where a vague statute abuts upon sensitive areas of basic First
Amendment freedoms, its uncertain meanings inevitably lead
citizens to steer far wider of the unlawful zone than if the
boundaries of forbidden conduct were clearly marked and thus
operate to inhibit or "chill" the exercise of those freedoms.
Grayned v. City of Rockford, supra, 408 U.S. at 109, 92 S. Ct.
2294, 33 L.Ed.2d 222. It is at this point that the doctrines of
vagueness and overbreadth become inextricably intertwined.
Comment, Aid to Education, Student Unrest, and Cutoff
Legislation: An Overview, 119 U.Pa.L.Rev. 1003, 1026 (1971),
because the vague law, through its susceptibility to sweeping and
improper application in the area of First Amendment rights is
overbroad as well. NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct.
328, 9 L.Ed.2d 405 (1963). This does not mean that the government
cannot legislate in areas touching those rights, but it is
required to draft such measures with narrow specificity.
Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 2915, 37
L.Ed.2d 830 (1973); Keyishian v. Board of Regents, 385 U.S. 589,
604, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). A distinction is drawn,
however, between pure speech and speech-related conduct or, as
the Supreme Court recently put it, "advocacy" and "action." Healy
v. James, supra, 408 U.S. at 192, 92 S.Ct. 2338, 33 L.Ed.2d
266. Although advocacy is entitled to full protection, action may
be subjected to reasonable regulations
on time, place, and manner which are necessary and narrowly
tailored to further significant governmental interests. Cox v.
Louisiana, 379 U.S. 536, 554-555, 85 S.Ct. 453, 13 L.Ed.2d 479
The protection of constitutional freedoms is nowhere more vital
than in the schools. Kleindienst v. Mandell, 408 U.S. 753, 763,
92 S.Ct. 2576, 33 L.Ed.2d 683 (1972); Shelton v. Tucker,
364 U.S. 479, 487, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). The courts
nevertheless seem to have agreed that regulations of student
conduct, which clearly touch on the rights of expression, need
not be so narrowly drawn as criminal statutes, although there
remains a sharp divergence as to the required degree of
specificity. Sword v. Fox, 446 F.2d 1091, 1097 (4th Cir.), cert.
denied, 404 U.S. 994, 92 S.Ct. 534, 30 L.Ed.2d 547 (1971); Jones
v. Snead, 431 F.2d 1115, 1117 (8th Cir. 1970); Soglin v. Kaufman,
418 F.2d 163, 168 (7th Cir. 1969); Esteban v. Central Mo. State
College, 415 F.2d 1077, 1088 (8th Cir. 1969), cert. denied,
398 U.S. 965, 90 S.Ct. 2169, 26 L.Ed.2d 548 (1970); see also Healy v.
James, supra, 408 U.S. at 201-203, 92 S.Ct. 2338, 33 L.Ed.2d
266 (Rehnquist, J., concurring); but see Wright, The Constitution
on Campus, 22 Vand.L.Rev. 1027, 1065 (1969). And the Supreme
Court has recently emphasized the limited applicability of the
overbreadth doctrine to regulations of expressive conduct.
Broadrick v. Oklahoma, supra. But even considering this
apparently more permissive standard, the conclusion that § 30-17
is facially unconstitutional is inescapable.
Section 30-17 punishes the student who "participates in any
disorderly disturbance or course of conduct directed against the
administration or policies of . . . [the college or university
attended] using means which are not protected by the constitution
of this State or of the United States. . . ." Both the student
and the administrator may legitimately ask: What is a "disorderly
disturbance or course of conduct" and what are the "policies" of
the school? What if, in an orderly demonstration, a few create a
"disorderly disturbance"? Are the rest in violation? Although the
subject matter of the statute obviously demands some flexibility
and discretion, the vague terms employed fail to give the student
fair notice of the kind of conduct which may cause the revocation
of scholarship aid, and fail to provide those charged with
enforcing the act with any objective standards.
The Illinois legislature recognized § 30-17's potential for
application to speech-related conduct by including the
restriction to "means which are not protected by the
constitution." For example, one common form of such conduct, on
the campus and in the community, is demonstrations in public
places. Yet if the state sought to regulate campus demonstrations
specifically, it could do so only by reasonable, albeit flexible,
standards of time, place, and manner tailored to further its
interest in preventing material and substantial disruptions of
the work and discipline of its schools. Healy v. James, supra,
408 U.S. at 189, 192-193, 92 S.Ct. 2338, 33 L.Ed. 2d 266; Grayned
v. City of Rockford, supra, 408 U.S. at 115, 92 S.Ct. 2294, 33
L.Ed.2d 222; Police Dept. of City of Chicago v. Mosley,
408 U.S. 92, 98, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). But instead of
providing such standards, the statute subjects those who
participate in expressive conduct to an ex post facto
determination of the breadth of its prohibitions. The attempted
restriction of § 30-17's broad language simply recognizes the
boundary of the state's power to regulate, but fails to give
students contemplating participation in a demonstration any
greater guidance as to what is prohibited; instead, it presents
them with a question of constitutional law. Correspondingly, the
section, owing to its vagueness, may be enforced at the
administrator's peril, for he or she, acting in good faith, may
unwittingly punish students for protected conduct.
Although it is normally fair to require that one who goes
perilously close to an area of proscribed conduct must accept the
risk that he may cross the line, United States v. An Article of
Drug Consisting of One Drum of 104,000 Tablets, 484 F.2d 748 (7th
Cir. 1973), application of this rule in the area of First
Amendment freedoms would chill the exercise of those rights,
contrary to constitutional principles. In light of the heavy
penalty — deprivation of student financial aid — Rasche v. Board of
Trustees, 353 F. Supp. 973, 977 (N.D.Ill. 1972); Corporation of
Haverford College v. Reeher, 329 F. Supp. 1196, 1207 (E.D.Pa.
1971), the deterrent effect of the statute's vague proscriptions
upon the exercise of the First Amendment freedoms is clearly real
and, judged in relation to its legitimate sweep, substantial. Nor
does it appear that this could be cured through case-by-case
analysis. Broadrick v. Oklahoma, supra, 413 U.S. at 616, 93 S.
Ct. at 2918. The Court therefore concludes that § 30-17 is
invalid on its face.
In apparent recognition of the insufficiency of the language of
the act itself, defendants devote most of their argument to the
proposition that § 30-17 should be construed with and viewed as
narrowed by the "Disruptive Action Statement" adopted by the
board of trustees of the University of Illinois in 1970. They
contend that such a construction is dictated by the fact that the
statement was adopted in response to the "Decorum on Campus" Act,
Ill.Rev. Stat. ch. 144, §§ 225-226 which became effective on the
same date as § 30-17. The Disruptive Action Statement, although
it provides reasonably clear standards of student conduct, makes
no reference to the sanction of scholarship revocation. In fact,
nothing in the statement shows that it was even adopted in
response to the Decorum on Campus Act which defendants urge is in
pari materia with § 30-17. Even assuming that the statement was
made in response to the Decorum Act, the difference in coverage
between that act (state-supported institutions of higher
learning) and § 30-17 (both private and state-supported colleges
and universities) militates against the construction contended
for by defendants. Even if it was the intention of the state
through the Decorum Act, and the board of trustees through its
statement, to narrow § 30-17 (which appears to be extremely
doubtful), it does not appear that students of common
intelligence could have realized it. Cf. Gregory v. City of
Chicago, 394 U.S. 111, 121, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969)
(Black & Douglas, JJ., concurring). In short, the Court is
convinced that the statute's vagueness and overbreadth are not
cured by reference to the Disruptive Action Statement of the
University of Illinois.
The Court having concluded that § 30-17 is unconstitutional on
its face and there being no genuine issues of material fact
remaining on that question, summary judgment will be entered for
plaintiffs declaring that statute to be unconstitutional.
It is so ordered.