High Court Backs Ruling Against Play Ban


Ruling in a San Diego case sparked by a racially charged play, the U.S. Supreme Court on Monday let stand a decision that college officials do not have the authority to censor plays to be performed on campus.

Leaving intact a California court ruling, the Supreme Court refused to hear an appeal by San Diego Community College District officials who contended that they, not instructors or students, have final control over plays, publications and other “expressive activities” on campus.

The court’s refusal to hear the case suggests that college administrators do not have the same broad powers the justices granted high school officials--in a case decided two years ago--to limit freedom of speech in school-sponsored activities.

The high court’s action Monday also signaled a victory not only for the college instructor and student who brought the suit, but for anyone with an interest in freedom of speech, said an ACLU lawyer who helped bring the case.


“I think the principle involved--that First Amendment issues were at the heart of what happened--has been established and, more importantly, that a very resounding defense of the First Amendment for college students, and academic freedom for college instructors, has been affirmed,” ACLU attorney Betty Wheeler said.

The case arose in 1986 when Alan DiBona, then a San Diego community college instructor, chose the play “Split Second” for his drama students to perform. The plot revolves around the shooting of a white suspect by a black policeman in New York City and the racial tensions that result.

DiBona, who now lives in Seattle, planned to have the play performed at the Educational Cultural Complex in Southeast San Diego, a branch of the community colleges. Students auditioning for the play were to receive course credit.

At the time, racial tensions in San Diego were high over the case of Sagon Penn, a young black man who was twice acquitted in the shooting of two white San Diego police officers and a Latino woman who was riding in the officers’ squad car.


After hearing of the play, several local ministers complained to Robert Matthews, who was then president of the Education Cultural Complex. Matthews now heads another college branch, the Continuing Education Centers.

After examining the play, Matthews concluded that its language was “inappropriate” and its plot “not very uplifting.” Then, saying the class lacked adequate enrollment, he ordered DiBona to cancel the production.

“I don’t even think the First Amendment should have been an issue there,” Matthews said Monday. “The issue as I’m looking at it was simply the procedures of the school. We had the right to close the class if we didn’t have the numbers necessary to keep class in operation. There was never any class, as far as we’re concerned.”

DiBona and one of his students, Scott Gundlach, filed the lawsuit against Matthews and James Hardison, then the dean of arts and sciences, contending that they had violated the First Amendment guarantee of freedom of speech. Hardison is now dean of another college branch, the Midway Center.

Initially, San Diego Superior Court Judge Arthur Jones ruled for the college administrators, saying DiBona and Gundlach did not have legal standing to bring the suit.

But last May, the 4th District Court of Appeal, on a 2-1 vote, reversed that decision and revived the suit.

The appeals court said it was aware of “no authority which would allow a college or university to censor” class materials selected by the instructor “because they contain ‘indecent’ language or deal with ‘offensive’ topics.”

Community college students, many of whom are adults, have full First Amendments rights, the court said.


The college appealed, relying on the 1988 U.S. Supreme Court ruling that granted a high school principal, not the student editors, final control over what appears in the school newspaper.

The First Amendment rights of high school students are not the same as those of adults, the U.S. Supreme Court said in that decision, adding that school officials legally control the curriculum.

Officials of the San Diego Community College District said the logic of that decision should apply also to colleges and universities.

On July 25, the California Supreme Court refused to hear the college’s appeal, and, on Monday, the U.S. Supreme Court did the same.

Wheeler, the ACLU attorney, said the Supreme Court action could bring about the end of the case because DiBona and Gundlach “have, to a large extent, achieved what they set out to achieve,” which was an affirmation of their constitutional rights. Neither the instructor nor the student sought monetary damages, she said.

Under the 4th District Court’s opinion, which still stands, the college retains the right to go to trial on the case. But Matthews said he had no burning desire for a trial.

“There’s nothing I want to happen,” he said. The case “can continue on if others so desire, or it can stop where it is if others so desire. I don’t care at this particular point.”

Donal M. Hill, the deputy county counsel who handled the case for the college, could not be reached Monday for comment. Neither could DiBona nor Gundlach.