FRANK A. KAUFMAN, District Judge.

Plaintiff, Gregory M. Dunkel, an Assistant Professor of Mathematics at Howard University, Washington, D.C., since February, 1970, and the holder of degrees of Master of Science and Ph.D. (Mathematics) from the University of Maryland in 1965 and 1967, asks this Court to declare unconstitutional Md. Ann. Code art. 27, § 577B (1970 Cum.Supp.), and to enjoin defendants from enforcing its provisions against plaintiff or any other person. Defendants are the Honorable Marvin Mandel, Governor of Maryland; Wilson H. Elkins, President of the University of Maryland; and the State of Maryland. Jurisdiction is invoked pursuant to 28 U.S.C. § 1343, the jurisdictional counterpart of 42 U.S.C. § 1983 and related sections. A three-judge court was prayed and convened pursuant to 28 U.S.C. § 2281 and 2284. Both sides have filed motions for summary judgment. The facts are established by uncontroverted affidavits, except in a few instances. The factual disputes posed by the latter are not material to the resolution of the legal issues presented herein.

I

The College Park campus of the University of Maryland was, in the spring of 1970, a scene of the utmost turmoil. On May 4, 1970, Governor Mandel proclaimed that "a state of public crisis, emergency and civil disturbance exists within the vicinity of College Park, Maryland," ordered the Maryland State Militia into active service, and gave it "full power and responsibility for [the] area of the University of Maryland Campus at College Park. * * *" On May 15, 1970, the Adjutant General of Maryland prohibited the possession or transportation of gasoline or other flammable liquids (except in the tank of a motor vehicle) on that campus.

On May 4, 1970, plaintiff was observed on the campus, apparently "leading * * * [a] mob of students * * *" which shortly afterwards broke down the doors of the main administration building.

On March 26, 1970, plaintiff was seen on the campus, apparently,

* * * coordinating or assisting [a group of students who had been arrested for a recent "sit-in"] in their efforts to disrupt the faculty meeting then in progress by yelling and shouting obscenities at appropriate times when speeches, motions, or votes were taken to which the group was opposed. * * *

On April 7, 1970, plaintiff was photographed along with a number of students "blocking and disrupting vehicular traffic" on the University's grounds.

On May 14, 1970, plaintiff was observed on the steps of the main administration building shortly after its locked doors "were broken and certain individuals, many of whom were students, forcibly entered the building."

On May 18, 1970, President Elkins addressed the following written notice to Dunkel:

You are hereby requested to leave the campus premises and you are advised that henceforth you are denied the right of access to the buildings and grounds of the University of Maryland. In the event that you are found in or upon the University premises or property, you will be subject to prosecution as provided in Article 27, Section 577B of the Annotated Code of Maryland. [Emphasis supplied.]

That notice was served on Dunkel on May 19, 1970.

Dunkel has submitted an affidavit, dated December 29, 1970, stating, inter alia:

1. * * *

2. On May 19, 1970 at about 1:00 P.M., I was served by a member of the police force of the University of Maryland with a document captioned "NOTICE" [set forth supra at p. 1238] * * *. I have never been advised of the reason for the issuance of this notice to me (other than the vague conclusion expressed in the affidavit of Wilson H. Elkins [see n. 8, supra] * * *), nor have I been advised of, nor given the opportunity to attend, any hearing relating to the issuance of the notice.

3. At the time of the issuance of the notice, and at all other times that I have been present on the premises of the University of Maryland, I have been engaged in lawful activities including the communication of ideas and information to members of the faculty and students of the University.

4. The University of Maryland is a public institution funded and operated by the State of Maryland under the supervision of the Governor of Maryland. Its premises and many of its buildings are open to the general public. The grounds of the University are often used by the public for recreational purposes and the University maintains on its grounds several businesses open to the public including an ice cream parlor and athletic exhibitions. In addition, the University makes many of its facilities available to persons or groups not directly connected with the University of Maryland, sometimes for compensation. I personally have come upon the University of Maryland's campus at least 100 times since my graduation in 1967, and except for the delivery of the above referred to notice to me on May 19, 1970, I have never been told that I was not permitted to be on campus or asked to state the reason for my presence on campus. During the many years that have elapsed since I commenced my studies at the University of Maryland campus, I can recall no occasion when a member of the general public was asked to leave the University's premises. To the best of my knowledge, the University of Maryland's campus police force makes no attempt, on any regular basis, to exclude members of the general public from using the walkways, stores and lawns of the University of Maryland. The campus of the University of Maryland is bisected by an east-west street known as Campus Drive which is constantly used by members of the general public to cross from U.S. Route 1 (Washington Boulevard) to Maryland Route 193 (University Boulevard). In addition, the campus is bisected by U.S. Route 1, a heavily traveled north-south highway.

5. Since I ceased to be a student at the University, I have confined my presence at the University to places open to the general public or to places specifically to which I was granted access by duly authorized students, faculty members or other officials of the University.

6. Since the receipt by me of the aforesaid notice, I have been warned by members of the University's police force that my presence on the University's premises or grounds will result in my arrest and prosecution under Section 577(B). * * *

7. In my professional capacity as a mathematician, as an associate professor of mathematics at Howard University, as an alumnus at the University of Maryland, and as a member of the public, I have need and desire to converse, consult and otherwise communicate with students and faculty members at the University's College Park Campus. On a number of occasions in the past, I have attended meetings of mathematicians held at the University of Maryland, have lectured in a professional capacity at the University of Maryland in conjunction with its Math Department, have attended symposia on mathematics at the University of Maryland, and have conversed with its professors and students concerning matters in the field of mathematics.

8. * * * [In its] May 20, 1970 issue, * * * "The Diamondback", the University's newspaper * * * quotes a University official who explained that the notice to me was issued because "he is a menace everytime he speaks on campus". I believe that the issuance of the notice to me was based upon utterances by me at or about the University, which speech is protected by the First Amendment to the Federal Constitution and has given rise to no criminal charges against me.

* * * * * *

II

Article 27, section 577B provides as follows:

The highest official or governing body of the University of Maryland, any of the State colleges, any community college or public school may deny access to the buildings or grounds of the institution to persons who are not bona fide, currently registered students, staff, or faculty at the institution, and who have no lawful business to pursue at the institution, or who are acting in a manner disruptive or disturbing to the normal educational functions of the institution. Administrative personnel and staff of the University of Maryland, any of the State colleges, any community college or public school may demand identification and evidence of qualification for use of anyone desiring to use or come upon the premises of the particular institution. Whoever shall trespass upon the grounds of the University of Maryland, any of the State colleges, any community college or public school or who refuses or fails to leave the buildings or grounds of these institutions after being requested to do so by an authorized employee of the institution, or who wilfully damages or defaces any of the buildings, furnishings, statues, monuments, memorials, trees, shrubs, grasses, or flowers on the grounds of such institutions shall be guilty of a misdemeanor, and upon conviction thereof, shall be fined not more than $1,000.00, or imprisoned for not more than six months, or both, in the discretion of the court.

That statute is in no way ambiguous. Therefore, there is no basis for the abstention by this Court sought by defendants. As Mr. Justice Douglas recently wrote in Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S.Ct. 507, 511, 27 L.Ed.2d 515 (1971):

* * * the naked question, uncomplicated by an unresolved state law, is whether that Act on its face is unconstitutional. * * * [A]bstention should not be ordered merely to await an attempt to vindicate the claim in a state court. Where there is no ambiguity in the state statute, the federal court should not abstain but proceed to decide the federal constitutional claim. * * * We would negate the history of the enlargement of the jurisdiction of the federal district courts, if we held the federal court should stay its hand and not decide the question before the state courts decided it. [Footnote omitted.]

III

* * * men of common intelligence must necessarily guess at its meaning and differ as to its application * *."

Baggett v. Bullitt, 377 U.S. 360, 367, 84 S.Ct. 1316, 1320, 12 L.Ed.2d 377 (1964). The "no lawful business to pursue" test, set forth in section 577B, seemingly excludes all constitutionally protected activity. Thus, unlike the statute held overbroad in Dombrowski v. Pfister, 380 U.S. 479, 491, 85 S.Ct. 1116, 1123, 14 L.Ed.2d 22 (1965), a "readily apparent construction suggests itself as a vehicle for rehabilitating the statutes," i.e., any constitutionally protected activity is a "lawful business." Although section 577B does not define what activities are so constitutionally protected, the range of uncertainty inherent in its language is not such that would "broadly stifle fundamental personal liberties when the end can be more narrowly achieved." (Footnote eliminated.) Aptheker v. Secretary of State, 378 U.S. 500, 508, 84 S.Ct. 1659, 1665, 12 L.Ed.2d 992 (1964), quoting from Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).

Plaintiff cites Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940), as support for his contention that the "no lawful business" standard is unconstitutional. The state statute under consideration in Thornhill prohibited persons from going near or loitering about a business premise "without a just cause or legal excuse" ( 310 U.S. at 91, 60 S.Ct. at 739) for the purpose, inter alia, of inducing others not to deal with that business. After noting (at 100, 60 S.Ct. at 743) that "[t]he phrase `without a just cause or legal excuse' does not in any effective manner restrict the breadth of the regulation," Mr. Justice Murphy revealed the concern of the Court with the statute's explicit language. Thus, he wrote (at 100-101, 60 S.Ct. at 743-744):

* * * The courses of action, listed under the first offense, which an accused — including an employee — may not urge others to take, comprehends those which in many instances would normally result from merely publicizing, without annoyance or threat of any kind, the facts of a labor dispute. An intention to hinder, delay or interfere with a lawful business, which is an element of the second offense, likewise can be proved merely by showing that others reacted in a way normally expectable of some upon learning the facts of a dispute. The vague contours of the term "picket" are nowhere delineated. Employees or others, accordingly, may be found to be within the purview of the term and convicted for engaging in activities identical with those proscribed by the first offense. In sum, whatever the means used to publicize the facts of a labor dispute, whether by printed sign, by pamphlet, by word of mouth or otherwise, all such activity without exception is within the inclusive prohibition of the statute so long as it occurs in the vicinity of the scene of the dispute. [Footnotes omitted.]

Unlike section 577B, therefore, the statute in Thornhill barred, on its face, constitutional activity.

The second standard set forth in section 577B — "acting in a manner disruptive or disturbing to the normal educational functions of the institution" — is, as plaintiff points out, susceptible of an impermissible interpretation, e.g., the banning of an individual whose pursuit of constitutionally protected activity "disrupts" the normal functions of the University. It is likewise, however, susceptible of a constitutionally permissible construction. Although it may be "fundamental that one may not be barred from speaking merely because his presence alone provokes riotous conduct among the audience," Stacy v. Williams, 306 F. Supp. 963, 977 (N.D.Miss. 1969), the "disruptive" standard in section 577B does not necessarily reach that end even if that end is forbidden. As was true of the "no lawful business" test, the "disruptive" provision is reasonably compatible with a constitutional interpretation, i.e., only non-constitutionally protected disruptive activities are prohibited. In the absence of any contrary interpretations by a Maryland court, we are unwilling to strike down section 577B on the grounds that it will not be construed and applied constitutionally by the courts of Maryland.

IV

Defendants urge that plaintiff's use of public land and property is a "privilege withdrawable by the State at any time for any reason." We do not agree. While the State undoubtedly possesses power to control the use made of its premises, it cannot do so without regard to the Constitution. Mr. Justice Stone, in Hague v. Committee for Industrial Organization, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939), laid defendants' argument to rest when he wrote:

* * * Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. * * *

Nor can there be much doubt that a University campus is such a "public place." As Judge Hemphill noted in Hammond v. South Carolina State College, 272 F. Supp. 947, 949 (D.S.C. 1967), in which students challenged a college rule:

* * * The power of the president to oversee, to rule, is an integral part of the mechanism for providing and promoting education at State College. Be that as it may, colleges, like all other institutions, are subject to the Constitution. Academic progress and academic freedom demand their share of Constitutional protection. * * *

However, a determination that a state university campus is a public campus tells only part of the story. Writing principally of the rights of students, Professor Wright has suggested:

But it does not advance the analysis to suggest that because a university is owned by the public and ordinarily open to the public, decisions on what must be permitted in other places are automatically applicable to the university. As Justice Fortas wrote last year:

public use does not authorize either the general public or the university faculty and students to use them in a way which subverts their purpose and prevents their intended use by others. The public character of a university does not grant to individuals a license to engage in activities which disrupt the activities to which those facilities are dedicated.

The state may be required to tolerate discussions intended to publicize anti-war views in the Port Authority Bus Terminal. It need not tolerate such discussions in the reading room of the university library. The factors to be considered, such as "the character of the place, the pattern of usual activity, the nature of its essential purpose and the population who take advantage of the general invitation extended * * * are essentially the same." But examination of these factors leads to different results in different cases. [Footnotes to this paragraph omitted.]

In this case, we need not reach the question of whether the University of Maryland could have limited use of the campus to students, faculty and administration, and thus could have excluded all outsiders. In Stacy v. Williams, supra, a three-judge district court, in considering challenges by students, faculty and others to regulations relating to outsiders permitted to speak on campus, wrote ( 306 F. Supp. at 969-971):

We begin with the premise that the facilities of state colleges and universities, dedicated as they are to the specialized function of education, may be utilized solely for that purpose. "The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated." Adderly v. State of Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966).

Thus, the freedoms of speech and assembly, while occupying a "preferred position" among constitutional liberties, may not be exercised on public property without regard to its primary usage. Moreover, wherever the policy is to allow outside speakers not connected with the university, it does not follow that the freedoms of speech and assembly of those persons on campus — students and faculty alike — may be exercised by anyone, at any time or place and regardless of the circumstances or probable consequences of the event. * * * Just as the rights of students in this regard are not absolute, neither is the power of the Board, upon consent to outside speakers, so unfettered that it can be exercised in censorship over what is and what is not acceptable or in other arbitrary fashion.

The interest of both students and Board can, and must, yield to harmonious accommodation under the Constitution. In this case, the Board has not adopted an all-inclusive ban, but rather has sought to provide some opportunity, albeit limited, for students at the various institutions to hear guest speakers. For this nonexclusionary attitude it is to be commended, but as it opens the lecture halls, it must do so nondiscriminatorily. * * *

V

An educational institution possesses the power to suspend students, Stricklin v. Regents of University of Wisconsin, 297 F. Supp. 416, 419-420 (W.D.Wis. 1969), appeal dismissed as moot, 420 F.2d 1257 (7th Cir. 1970); Scoggin v. Lincoln University, 291 F. Supp. 161, 172 (W.D.Mo. 1968), or teachers, Lafferty v. Carter, 310 F. Supp. 465, 469-470 (W.D.Wis. 1970), for proper reasons. We hold that a state university has no less a right to prohibit access to its campus to an "outsider" to the university community if he has engaged in conduct which violates constitutional standards clearly embodied in state law, particularly if there is reason to believe that he will again engage in such conduct. However, except in an emergency, such powers of control should not be exercised, without a prior administrative hearing, to deprive any person, as an individual, of access to a state university campus.

In Wright, The Constitution on the Campus, supra n. 13, at 1071-72, the author, speaking of students' rights, wrote:

There is general agreement that four fundamental safeguards are required in every proceeding that may lead to a serious penalty. The student must be advised of the grounds of the charge, he must be informed of the nature of the evidence against him, he must be given an opportunity to be heard in his own defense, and he must not be punished except on the basis of substantial evidence. These requirements are so obvious, and so fundamental, that they require little elaboration.

In Stricklin v. Regents of University of Wisconsin, supra, Judge Doyle stated ( 297 F. Supp. at 420) that:

even when it is impossible or unreasonably difficult to accord the student a preliminary hearing prior to an interim suspension, procedural due process requires that he be provided such a preliminary hearing at the earliest practical time.

Earlier, Judge Doyle concluded that, in the factual context of the Stricklin case, a thirteen-day hiatus between suspension and hearing was unconstitutional (at 419):

A suspension for such a substantial interval imposed as a sanction for misconduct, without prior specification of charges, notice of hearing, or hearing, would violate due process.

Those principles are no less applicable to an individual outsider such as Dunkel. In the case at bar, while it may well have been impractical for the University officials, in the context of the emergency which existed, to have held a hearing prior to issuing and making effective the May 18, 1970 notice, the record discloses no reason why an administrative hearing could not have been held with reasonable promptness subsequent to that date. It was the duty of the University, if, because of the emergency, it could not have provided an administrative hearing prior to issuing such notice to Dunkel, to have taken the initiative to offer, and to have made suitable arrangements for, an administrative hearing as promptly as possible after that notice issued. In any such hearing, the burden of proof would have been upon the University officials to establish that Dunkel, within the meaning of section 577B, had "no lawful business to pursue at the institution," or had been "acting in a manner disruptive or disturbing to the normal educational functions of the institution." Cf. Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959).

VI

Plaintiff contends that section 577B is unconstitutional because it fails to require a hearing. Cf. Wisconsin v. Constantineau, supra. But Maryland's Administrative Procedure Act, Md.Ann. Code art. 41, § 244 et seq., did require a hearing before, or in any event as promptly as reasonably possible after, the May 18, 1970 notice was given force and effect.

Article 41, section 251 provides in part:

In any contested case, all parties shall be afforded an opportunity for hearing after reasonable notice. * * *

Article 41, section 244(c) defines "contested case" to mean —

* * * a proceeding before an agency in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing. [Emphasis added.]

This case involves both Dunkel's right to visit the University campus and the University's right to exclude him under the standards established by section 577B. That section does not itself require a hearing. Nor seemingly does any other Maryland statute. Thus, the section 577B notice to Dunkel created a "contested case" as defined by section 244(c) of the Maryland Administrative Procedure Act only if Dunkel had a constitutional right to a hearing. For the reasons set forth in part V of this opinion, we hold that he had that right, and that, accordingly, he was entitled to a hearing under sections 244 and 251. No such hearing was held; nor was Dunkel at any time given the opportunity to appear at any administrative hearing.

In so ruling, we reject defendants' contention that the Maryland Administrative Procedure Act was not so applicable because section 577B defines a criminal offense and provides criminal penalties; and because a person such as Dunkel is constitutionally entitled only to a hearing during the criminal proceedings which follow his failure to abide by a section 577B notice and not to an administrative hearing in connection with whether such notice should validly issue. But what was immediately at issue after President Elkins served his May 18, 1970 notice on Dunkel was not the constitutionality of any possible future criminal proceeding growing out of any failure by Dunkel to abide by that section 577B notice, but rather the constitutional right of a campus outsider (Dunkel can so fairly be described) not to be excluded from the University's campus, upon which he had a limited constitutional right to be present, without affording to him an administrative hearing to determine whether, in accordance with the standards provided by section 577B, the University could deny to him entry upon its campus.

VII

On November 6, 1970, several days after this suit was instituted, Estelle A. Fishbein, Special Assistant Attorney General for the State of Maryland, and counsel for defendants herein, informed plaintiff's counsel by letter that:

It is the position of the University that the terms of the notice dated May 18, 1970, addressed to Mr. Dunkel and signed by Dr. Wilson H. Elkins, expired with the termination of the state of emergency on the College Park campus and the close of the spring semester.

Because plaintiff is no longer prohibited from the campus, defendants contend that the present action has become moot and that therefore there is no justiciable controversy before this Court. We cannot agree: The fact that plaintiff has, in the recent past, allegedly been deprived of his constitutional right to an administrative hearing gives to this action the immediacy and reality demanded by Article III of the Constitution.

In Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22 L.Ed.2d 113 (1969), quoting Maryland Casualty Co. v. Pacific Coal and Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941), Mr. Justice Brennan defined the standards to be applied in issuing a declaratory judgment:

[T]he question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

This action satisfies that test: There is no contention that the positions of the parties are not sufficiently adverse; the requisite immediacy and reality are supplied by the more than remote possibility that plaintiff, having once been subjected, without a hearing, to a section 577B prohibition, will in the future be similarly restrained from entering the College Park campus. "The threat of sanctions may deter their [First Amendment rights'] exercise almost as potently as the actual application of sanctions." N.A.A.C.P. v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). See generally, 6A Moore, Federal Practice ¶ 57.13, stating that "* * * where there is a likelihood that the act complained of will be repeated, the issues remain justiciable, * * *."

Defendants rely on Gray v. Board of Trustees, 342 U.S. 517, 72 S.Ct. 432, 96 L.Ed. 540 (1952), and Watkins v. Chicago Housing Authority, 406 F.2d 1234 (7th Cir. 1969). Both actions were dismissed as moot. In Gray, the plaintiff therein was, after the commencement of the suit, admitted to the University from which she alleged she was discriminatorily excluded, thereby achieving the object of her suit. In Watkins, the plaintiffs therein, tenants challenging their eviction from publicly-owned housing, were, after the suit was commenced, "restored to their original status" (at 1235). After regaining tenant status, the plaintiffs in Watkins were still subject to renewed subsequent eviction notices. In Gray, the plaintiff was, after her admission to the University, still subject to discriminatory suspension or expulsion. But in both Watkins and Gray, at least the respective defendants had retreated from the original positions they had asserted. Here, the University's President has not retreated from his position that he had the right to issue a section 577B notice without a hearing. Rather, that official has simply stated, through his attorney, that the emergency, which prompted him to issue such a notice, is over. He has in no way admitted any error of law.

VIII

Dunkel's motion for summary judgment is granted and that of defendants is denied. Judgment is hereby entered for plaintiff, reflecting this Court's holding that plaintiff should have been afforded an administrative hearing. Because, however, the section 577B notice to Dunkel was withdrawn on November 6, 1970 and because this Court is satisfied that in the future the defendants will afford to Dunkel, or to any other person to whom a notice is sent under section 577B, a hearing as required by Article 41, section 251 and in accordance with this opinion, this Court concludes that there is no present need to grant any injunctive or other equitable relief. As for the declaratory relief sought by plaintiff in connection with the alleged facial unconstitutionality of Article 27, section 577B, this Court holds that that statute, read in conjunction with Article 41, sections 244 and 251, is constitutional. Therefore, plaintiff's request for such declaratory relief is denied. Court costs will be borne by the defendants.

It is so ordered.