# Healy v. James/Concurrence Rehnquist

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Burger Rehnquist
* Separate Opinion Douglas
[p201] MR. JUSTICE REHNQUIST, concurring in the result.
While I do not subscribe to some of the language in the Court's opinion, I concur in the result that it reaches. As I understand the Court's holding, the case is send back for reconsideration because respondents may not have made it sufficiently clear to petitioners that the decision as to recognition would be critically influenced by petitioners' willingness to agree in advance to abide by reasonable regulations promulgated by the college.
I find the implication clear from the Court's opinion that the constitutional limitations on the government's acting as administrator of a college differ from the limitations on the government's acting as sovereign to enforce its criminal laws. The Court's quotations from Tinker [p202] v. Des Moines Independent School District, 393 U.S. 503, 506 (1969), to the effect that First Amendment rights must always be applied "in light of the special characteristics of the... environment," and from Esteban v. Central Missouri State College, 415 F. 2d 1077, 1089 (CA8 1969), to the effect that a college "may expect that its students adhere to generally accepted standards of conduct," emphasize this fact.
Cases such as United Public Workers v. Mitchell, 330 U.S. 75 (1947), and Pickering v. Board of Education, 391 U.S. 563 (1968), make it equally clear that the government in its capacity as employer also differs constitutionally from the government in its capacity as the sovereign executing criminal laws. The Court in Pickering said:
   "The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." 391 U.S., at 568.
Because of these acknowledged distinctions of constitutional dimension based upon the role of the government, I have serious doubt as to whether cases dealing with the imposition of criminal sanctions, such as Brandenburg v. Ohio, 395 U.S. 444 (1969), Scales v. United States, 367 U.S. 203 (1961), and Yates v. United States, 354 U.S. 298 (1957), are properly applicable to this case dealing with the government as college administrator. I also doubt whether cases dealing with the prior restraint imposed by injunctive process of a court, such as Near v. Minnesota, 283 U.S. 697 (1931), are precisely comparable to this case, in which a typical sanction imposed was the requirement that the group abandon its plan to meet in the college coffee shop.
[p203] Prior cases dealing with First Amendment rights are not fungible goods, and I think the doctrine of these cases suggests two important distinctions. The government as employer or school administrator may impose upon employees and students reasonable regulations that would be impermissible if imposed by the government upon all citizens. And there can be a constitutional distinction between the infliction of criminal punishment, on the one hand, and the imposition of milder administrative or disciplinary sanctions, on the other, even though the same First Amendment interest is implicated by each.
Because some of the language used by the Court tends to obscure these distinctions, which I believe to be important, I concur only in the result.