Petition for a Writ of Certiorari — Barker v. Hardway

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_—_ JAN3 1969

| Supreme Court of the ited, Staten. ournK

October Term, 1968

No. 9.01

ALLEN F, Barker, ef al.,

Petitioners,

—versus—

WENDELL G. Harpway, President of

Bluefield State College, ez al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Roy Lucas

20 East Ninth Street

New York, N. Y. 10003

Metvin L. WuLF

156 Fifth Avenue

New York, N. Y. 10010

HERBERT H. HENDERSON

317 Ninth Street

Huntington, West Virginia 25701

Attorneys for Petitioners

NorMAN DorsEN

School of Law

New York University

Washington Square

New York, N. Y. 10003

Lewis M. STEEL

55 Central Park West

New York, N.Y. 10023

Of Counsel

INDEX

Citation to Opinions Below

Jurisdiction

Questions Presented .

cE 5 eae eee

When and How the Federal Questions Were Raised

| Ie

Reasons for Granting the Writ

I is cncettniatiohstatinliliebisananmpanein

Point I

Respondents deprived petitioners of liberty with-

out due process of law by indefinitely expelling

them from a public institution of higher learning

prior to a hearing and refusing to readmit them

after offering hearings in which petitioners would

_ have been prejudiced by absence of the procedural

safeguards essential to a fair administrative ad-

judication

A. Right to Fair and Impartial Hearings in

Which Members of the Tribunals Had No

Prior Official Involvement in the Controversy

and Did Not Actively Participate as Witnesses

Against the Students Charged With Miscon-

Se siistiascenhcctaeneseneiisitcoraneniniisiinnllbeni

torial

PAGE

B. Right to Be Accompanied, Advised and Rep-

resented by Retained Counsel 25

C. Right to Confront and Cross-examine the Wit-

nesses Against Them 29

D. Right to Be Presumed Innocent of Alleged

Misconduct 30

Point II

The Court of Appeals erred in determining that

petitioners’ speech and conduct activities were un-

protected by the First Amendment’s freedom of

speech and assembly provisions, and in declining

to undertake a full examination of the record on

this issue 31

A. Scope of Review 31

B. Relationship Between Expression and Conduct

by Petitioners and the Legitimate Educational

Functions of the College 32

C. Petitioners’ Speech and Conduct Were Pro-

tected by the First Amendment’s Freedom of

Speech and Assembly Provisions 33

Pornt III

The Court of Appeals erred by holding, in the al-

ternative, that petitioners’ procedural due process

claims were extinguished and rendered moot by ‘he

District Court’s de novo proceedings, where the

Court’s remedial powers are limited to evaluating

petitioners’ feceral First Amendment claims, but

iii

PAGE

a new college disciplinary tribunal would have in-

dependent state law power to assess lesser penal-

ties ranging from reprimand to limited suspen-

sion, regardless of the outcome of the First Amend-

ment question ...... 35

CoNncLUSION 38

APPENDIX:

Opinion of the United States Court of Appeals

for the Fourth Circuit ............. la

Opinion of the United States District Court for

the Southern District of West Virginia, Bluefield

Division Me awe (iliouaaicliiaestin 3a

West Virginia Code §18-14-1 .... on 25a

From Plaintiff’s Exhibit B 26a

Letter Sent to Each Petitioner 29a

TABLE OF AUTHORITIES:

Cases:

American Cyanamid Co. v. FTC, 363 F. 2d 757 (6th

Cir. 1966) .. 24

Amos Treat & Co. v. SEC, 306 F. 2d 260 (D. C. Cir.

1v62) . - : ——

Barker v. Hardway, 283 F. Supp. 228 (S. D. W. Va.

1968), aff'd per curiam, 399 F. 2d 638 (4th Cir.

1968) .nesceecosscosecnssevesseesenssnssenesnnssnnssnsssnesnsssnssenasensennesnacsnnes 21, 32

PAGE.

Berkshire Employees Ass’n v. NLRB, 121 F. 2d 235 (3d

Cir. 1941) 25

Brown v. Board of Education, 347 U. S. 483 (1954) .... 10

Burnside v. Byars, 363 F. 2d 744 (5th Cir, 1966) .......... 33

Buttny v. Smiley, 281 F. Supp. 280 (D. Colo. 1968) ........ 11

Commonwealth Coatings Corp. v. Continental Casualty

Co., 37 U. S. L. W. 4037 (Nov. 18, 1968) 23

Cosme v. Board of Education, 50 Misc. 2d 344, 270

N. Y. S. 2d 231 (Sup. Ct. N. Y. Cty., 1966), aff’d

mem: 27 App. Div. 2d 905, 281 N. Y. S. 2d 970 (1st

Dep’t 1967) 27

Dickey v. Alabama State Board of Education, 273 F.

Supp. 613 (M. D. Ala. 1967), vacated Sub nom. as

moot, Troy State University v. Dickey, No. 25507

(5th Cir. Oct. 21, 1968) | vty AF

Dickson v. Sitterson, 280 F. Supp. 484 (M. D. N. C.

1968) 11

Dixon v. Alabama State Board of Education, 294 F. 2d

150 (5th Cir.), cert. denied, 368 U. S. 930 (1961) 11,16,

17, 19, 20, 30, 32, 35

Due v. Florida A. & M. University, 233 F, Supp. 396

(N. D. Fla. 1963) . 27

Esteban (I) v. Central Missouri State College, 277 F.

Supp. 649 (W. D. Mo. 1967) 11, 17, 25, 27, 30

Esteban II, 290 F. Supp. 622 (W. D. Mo. 19§8) ............ 11

In re Gault, 387 U. S. 1 (1967) 13, 18, 19, 26

Gideon v. Wainwright, 372 U. S. 335 (1963) ................ 19

Goldwyn v. Allen, 54 Misc. 2d 94, 281 N. Y. S. 2d 899

(Sup. Ct. Queens Cty. 1967) 25, 27

Goslin v. Thomas, 400 F. 2d 594 (5th Cir. 1968) ............ 28

Greene v. Howard University, 271 F. Supp. 609

(D. D. C.), injunction pending appeal granted, No.

21267 (D. C. Cir. Sept. 8, 1967) 11

Greene v. McElroy, 360 U. S. 474 (1959) 18, 30

In re Groban, 352 U. S. 339 (1957) 27, 28

Grossner v. Trustees of Columbia University, 287 F.

Supp. 535 (S. D. N. Y. 1968) 1%

Hamilton v. Regents of the University of California,

293 U. S. 245 (1934) 11

Hammond vy. South Carolina State College, 272 F.

Supp. 947 (D. 8. C. 1967) 11

Hyun v. Landon, 219 F. 2d 404 (9th Cir. 1955), aff’d

mem. by an equally divided court, 350 U. S. 990

(1956) 28

Jones v. Board of Education, 279 F. Supp. 190 (M. D.

Tenn. 1968), appeal pending No. 18,482 (6th Cir.) ..11,

21-22

Kent v. United States, 382 U. S. 541 (1966) 19, 28

Kwong Hai Chew v. Colding, 344 U. S. 590 (1953) ....18, 36

Madera v. Board of Education, 386 F. 2d 778 (2d

Cir. 1967), cert. denied, 390 U. S. 1028 (1968) ........ 11, 27

Mempa v. Rhay, 389 U. S. 128 (1967) 28

Moore v. Troy State University, 284 F. Supp. 725

(M. D. Ala. 1968) 11, 16-17

In re Murchison, 349 U. S. 133 (1955) 23, 24, 30

Mustell v. Rose, 282 Ala. 358, 211 So. 2d 489, cert.

denied, 89 S. Ct. 297 (1968) 11

Offutt v. United States, 348 U. S. 11 (1954) 24

In re Oliver, 333 U. S. 257 (1948) -...-ssssssssssssessssseee-coee 28

Parker v. Gladden, 385 U. S. 363 (1966) (per curiam) .. 24

Pickering v. Board of Education, 391 U. S. 563 (1968) ..23, 32

Pillsbury Co. v. FTC, 354 F. 2d 952 (Sth Cir. 1966) .. 24

Powell v. Alabama, 287 U. S. 45 (1932) 28

Reilly v. Pinkus, 338 U. S. 269 (1949) ...... 19

In re Ruffalo, 390 U. S. 544 (1968) 17-18

Shioutakon v. District of Columbia, 236 F. 2d 666

(D. C. Cir. 1956) ... 28

Slochower v. Board of Higher Education, 350 U. S.

551 (1956) ; 18

Snyder v. Board of Trustees, 286 F. Supp. 927 (N. D.

Ill. 1968) 11

State ex rel. Sherman v. Hyman, 180 Tenn. 99, i71

S. W. 2d 822 (1942), cert. denied, 319 U. S. 748 (1943) 30

Steier v. New York State Educ, Commn’r, 271 F. 2d 13

(2d Cir. 1959), cert. denied, 361 U. S. 966 (1960) .... 11

Texaco, Inc. v. FTC, 336 F. 2d 754 (D. C. Cir. 1964),

vacated and remanded on other grounds, 381 U. S.

739 (1965) (per curiam) 24

Tinker v. Des Moines Independent Community School

Dist., cert. granted, 390 U. S. 942 (1968) (pending) .... 33

Trans World Airlines v. CAB, 254 F. 2d 90 (D. C.

Cir. 1958) 24

Tumey v. Ohio, 273 U. S. 510 (1927) 23

United States v. Jackson, 390 U. S. 570 (1968) ............ 37

United States ex rel. Accardi v. Shaughnessy, 347 U. S.

260 (1954) wee 19, 37

PAGE

Wasson v. Trowbridge, 382 F. 2d 807 (2d Cir.

WOOT) cencecceveccnrnsrsirvemssssnnssersnenenrensneesntnensraseameianewetitn 11, 21, 22

West Virginia Board of Education v. Barnette, 319

U. S. 624 (1943) 33

Willner v. Committee on Character and Fitness, 373

U. S. 96 (1963) ... 30

Wong Yang Sung v. McGrath, 339 U. 8. 33 (1950) ....19, 24

Wright v. Texas Southern University, 277 F. Supp. 110

(S. D. Tex. 1967), aff’d, 392 F. 2d 728 (5th Cir.

DOOD ncccccsens<eosnsesensnereecsssnconenssoeessisasesttsencetaetnieeeneeee 11, 21, 22

Zanders v. Board of Education, 281 F. Supp. 747 (W.

D. La. 1968) ... 11

Symposia:

Legai As,ects of Student-Institutional Relationships,

45 Denver L. J. 497 (1968) 12

Symposium—Student Rights and Campus Rules, 54

Calif. L. Rev. 1 (1966) 12

Developments in the Law—Academic Freedom, 81

Harv. L. Rev. 1045 (1968) , 12, 26, 36

Other Authorities :

Heyman, Some Thoughts on University Disciplinary

Proceedings, 54 Calif. L. Rev. 73 (1966) 29

Joint Statement on Rights and Freedoms of Students,

54 A. A. U. P. Bull. 258 (1968) 12, 17, 25, 29

Johnson, The Constitutional Rights of College Stu-

dents, 42 Texas L. Rev. 344 (1964) 29

Vili

PAGE

McKay, The Student as Private Citizen, 45 Denver

oe f) eaeinenceeeonane 12

Seavey, Dismissal of Students: “Due Process”, 70

Harv. L. Rev. 1406 (1957) ...... 16

U. S. Bureau of the Census, Statistical Abstract of the

United States: 1968 (89th ed. 1968) 10

Van Alstyne, Procedural Due Process and State

University Students, 10 U. C. L. A. L. Rev. 368

(1963) 18, 21, 29

Van Alstyne, The Student as University Resident, 45

Denver L. J. 582 (1968) NN Pe ER 29

E. G. Williamson & J. L. Cowan, The American Stu-

dent’s Freedom of Expression (1966) 13

IN THE

Supreme Court of the United States

October Term, 1968

SU scomaaieai

ALLEN F, Barker, DonaLp Steven Hit, THomas MALone,

Terry Mier, CHartes E. Newsotp, Carmen PrGrm,

Atonzo Saunvers, ALBERT SmitH, SHaron Maria Smita,

and Auutan Scotr Tucker, Individually and in behalf

of All Those Similarly Situated,

Petitioners,

—versus—

WENDELL G. Harpway, President of Bluefield State Col-

lege; J. I. Turner, Dean of Men of Bluefield State

College; Wanna Moorse, Dean of -Women of Bluefield

State College; and West Virginia State Board of Edu-

cation, a Public Body Corporate, ©

Respondents.

——

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS .

FOR THE FOURTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Fourth Circuit entered in the above-entitled case on

September 3, 1968.

RE ee ee eT ee ! ee ET ee Te ee TT

‘ex Ried eeu dsass Ds ple ei de and a

epee ee isan ve ve

Citation to Opinions Below

The Court of Appeals’ per curiam opinion, affirming the

decision below, is reported at 399 F. 2d 638 (4th Cir. 1968),

and printed in the Appendix, infra, p, la. The opinion of

the United States District Court for the Southern District

of West Virginia is reported at 283 F. Supp. 228 (S. D.

W. Va. 1968), and printed in the Appendix, infra, p. 3a.

Jurisdiction

The judgment of the Court of Appeals for the Fourth

Circuit was entered on September 3, 1968. Mr. Chief Jus-

tice Warren extended the time within which to file a peti-

tion for writ of certiorari to and including January 3,

1969. The jurisdiction of this Court is invoked under 28

U.S. C. §1254(1). |

Questions Presented

I. Whether a public institution of higher learning, con-

sistent with the due process clause of the Fourteenth

Amendment, may indefinitely expel students prior to a

hearing and refuse to readmit them after offering hear-

ings in which the students would be prejudiced by absence

of the following procedural safeguards:

A. right to fair and impartial hearings in which mem-

bers of the tribunals have no prior official involve-

ment in the controversy and do not actively par-

ticipate as witnesses against the students charged

with misconduct; |

B. right to be accompanied, advised, and represented

by retained counsel;

C. right to confront and cross-examine the witnesses

against them;

D. right to presumed innocence of(glleged misconduct.

II. Whether the Court of Appeals erred in determining .

that petitioners’ speech and conduct activities were not pro-

tected by the First Amendment’s freedom of speech and

assembly provisions, and in declining to undertake a full

examination of the record on this issue.

III. Whether the Court of Appeals erred by holding, in

the alternative, that petitioners’ procedural due process

claims were extinguished and rendered moot by the Dis-

trict Court’s de novo proceedings, where the Court’s

remedial powers are limited to evaluating petitioners’ fed-

eral First Amendment claims, but a new college discipli-

nary tribunal would have independent state law power to

assess lesser penalties ranging from reprimand to limited

suspension, regardless of the outcome of the First Amend-

ment question.

Statement of the Case

Petitioners are former students at Bluefield State Col-

lege, Bluefield, West Virginia. Until October 16, 1967, they

were students in yood standing. On that date respondent

Hardway, President of Bluefield State Cellege, notified

each petitioner by letter of his ex parte determination that

they should be indefinitely suspended. Hardway sent to

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each petitioner the same letter’ charging participation in a

demonstration on October 14, 1967, which had allegedly

been disruptive. The demonstration had been staged dur-

ing a football game on the previous weekend.

The Hardway letter stated that petitioners were “imme-

diately suspended indefinitely from [the] College.” [Em-

phasis in letter.] Moreover, it indicated that petitioners

would “not be permitted on the grounds or in the buildings”

while suspended. The letter also stated that petitioners

could appeal the ex parte decision “to the College Faculty

Committee on Student Affairs....” Further appeal from

the Committee lay to the President, Hardway, who had

made the initial ex parte decision.

Each petitioner formally requested a hearing before the

Committee. At that time the Committee consisted of six

faculty members, appointed by and removable at the pleas-

ure of President Hardway (Tr. 393).?

Six petitioners (Newbold, Malone, Miller, S. Smith, Pil-

grim, and A. Saunders) appeared before the Committee

with retained counsel to advise them (Tr. 401). They were

told that counsel were not permitted to be present.’ The six

then refused to be subjected to the proceedings.

1A copy of the letter is included in the Appendix to this peti-

tion, p. 29a. The one petitioner (Allan Tucker) who received a

different letter was reinstated by the District Court.

2Three members of the Committee testified at the trial., This

testimony revealed that there was no fixed procedure (Tr. -40;

957-59; 991-92). In fact one member stated that she could not

recali ever taking a vote on a student’s guilt or innocence (Tr.

1012).

In theory the students were permitted to be represented by a

non-legal adviser of their choice, including faculty members (Tr.

957). Two former faculty members testified that as a result of

The other four petitioners appeared without the benefit

of counsel. After hearings the Committee recommended

conditional reinstatement for two (Tucker and Hill) and

continued indefinite suspension for the other two (Barker

and A. Smith). President Hardway affirmed the recom-

mendations of the Committee in each instance.‘

At the proceedings President Hardway, according to his

own testimony “in most instances . . . was in the hearing

as the accuser” (Tr, 390). A short excerpt from his testi-

mony is instructive on ‘he kind of hearing® which petition-

ers received «Tr. 391-94):

Q. Well, Doctor Hardway, if I understand your

testimony you’re telling me that you saw the ten

charged parties do what they did? A. Yes, sir.

Q. And that you adjudged them guilty, isn’t that

right? A. Well, I hadn’t told you that.

Q. Well, is that right? A. That’s right, yes, sir.

Q. And no matter what kind of hearing they had

they still would have been guilty, isn’t that correct?

(No reply.)

trying to aid students in disciplinary difficulties they had been

declared persona non grata by Doctor Hardway and decided to

leave the college (testimony of Professor Emma Sue Phelps, Tr.

35-36, 39-64 ; testimony of Professor Janet Lee Hall, Tr. 143-54).

‘Minutes from three of the four hearings were not prepared

until subpoenaed over two months later for the District Court’s

proceedings in this case (Tr. 445). Apparentiy Doctor Hardway

affirmed the recommendations with no consideration of what oc-

curred in the hearings other than the conclusions.

* Minutes of the Barker hearing, for example, clearly show that

no witness appeared against hia (Petitioners’ Exhibit 14). The

Committee asked him for explanations of his alleged behavior.

Since “[he] was unable to give any logical reasons for his personal

behavior nor to encourage any hope for improved behavior,” éd.,

the Committee recommended continued suspension.

a ae

Q. Yes or no sir? A. Yes, they were guilty.

Q. Well, could you admit that you might have been

wrong about any of these ten? A. I positively know

I was not wrong about any of the ten.

Q. Well, sir, if you went into a committee and said,

“T positively saw X doing these things, and I heard

him say something, and I am positive it was him, I

was right there, I saw him,” and then the committee

comes down to—comes down with a finding that X was

not there at all, and he didn’t say what you say he

said. Wouldn’t that be a slap in your face? A. Well,

it would be—it would be ~ disappointment.

Although the Committee’s recommendations were not

final, and were subject to review by President Hardway,

he testified that his “ordinary procedure” (Tr. 386) was

to act on the Committee’s recommendations the same or

following day. He further testified that he did not “ordi-

narily see the minutes of the committee. They’re kept for

their own use” (Tr. 390).

According to the testimony of Mr. Randolph White, a

member of the Committee, “we try to determine the ac-

curacy of the guilt” (Tr. 441). The evidence thus indicated

that both the Committee, and Doctor Hardway (the one-

man appellate tribunal), acted on a presumption of guilt °

which the students had to rebut if they were to be allowed

to continue their higher education.

A final observation on Committee procedures which re-

lates to the claim made here that the procedural due

process issues were not mooted by the de novo trial, is Doc-

tor Hardway’s testimony that “[i]n a hearing there can

be many things discovered that would regulate or temper

ths punishment that was to result” (Tr. 392). Accordingly,

the Court of Appeals’ finding that petitioners’ conduct was

not protected by the First Amendment does not end the

controversy. A new, and fair, hearing by the Committee

could impose a lesser sanction than expulsion.

A full review of the testimony on the demonstration

cannot be undertaken in this petition. The principal wit- _

ness against petitioners was President Hardway. He

claimed that the students disrupted the latter part ‘of the

football game and obstructed his view. Similarly, he testi-

fied that the students endangered him and other spectators.

The District Court weighted his testimony heavily even

though the demonstration had been staged to protest his

policies and practices which the students claimed were

racially discriminatory and destructive of First Amend-

ment rights.

Petitioners, however, testified that considerable and suc-

cessful efforts had always been made to instill concepts

of nonviolence in the student group which planned the

demonstration (Tr. 220, 539-40). The testimony showed

that the students made frequent appeals to the U. S. Con-

stitution and the Bill of Rights as supporting fairer dis-

ciplinary hearings and rights of expression for the stu-

dents. Petitioners’ Exhibit 1 is such an appeal, as are

petitioners’ Exhibits 2 and 22.

Moreover, Floyd Meadows, husband of a Bluefield

faculty member, who took many of the photographs (Peti-

tioners’ Exhibits 27-30), testified that he observed no vio-

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lence and heard no threats during the game (Tr. 1106-

1110). Mr. Meadows’ photographs of the demonstration

directly contradict President Hardway’s testimony. The

District Court, however, made no reference to the photo-

graphic evidence and declined to make further findings of

fact after judgment as to the accuracy and relevance of

the photographs. See Order entered May 28, 1968.

Or. April 10, 1968, the District Court entered judgment

based on testimony and evidence received at the trial from

January 2 to 12, 1968. The Court dismissed the complaint

on that date, and further denied, on May 28, 1968, peti-

tioners’ motion for a new trial and additional findings of

fact.

Thereafter, on August 5, 1968, petitioners filed a motion

for temporery injunctive relief and an accelerated appeal

before the Court of Appeals for the Fourth Circuit. On

August 12, 1968, Chief Judge Haynsworth advised petition-

ers that the appeal would be granted. That court heard the

appeal on August 26, 1968, a Monday, and rendered its

per curiam decision the following Tuesday, September 3,

1968.

The Court of Appeals gave no indication that it had ex-

ercised its prerogative of undertaking a full review of the

record, but apparently applied a “clearly erroneous” stand-

ard in finding the judgment below “supported by the rec-

ord,” 399 F.. 2d at 638, Appendix 2a. The Court ruled that

“the administrative appeals which the college afforded the

students satisfied the requirements of due process of law.”

Id, Further, the Court held that “[t]he proceedings in the

district court render moot the students’ contention that

they were denied due process at the college level.” Id.

When and How the Federal Questions Were

Raised and Decided Below

The sole issues involved in this litigation have been ques-

tions of federal law. At the trial in the District Court

petitioners claimed they had been suspended indefinitely

from Bluefield State College prior to a hearing adequate

to meet the basic requirements of federal due process. Peti-

tioners further claimed that their speech and conduct were

protected by the First Amendment and could not therefore

form the basis of disciplinary proceedings.

The District Court ruled against petitioners on both as-

pects of the case.

Petitioners processed an accelerated appeal to the Court

of Appeals for the Fourth Circuit. The Court of Appeals

affirmed, per curiam, ruling that the lower court’s opinion

was supported by the record and applicable law. The per

curiam disposition further ruled that petitioners. had in

effect waived their procedural due process rights by under-

taking a trial on the merits of the First Amendment claim.

The de novo proceedings in the District Courf were thus

found, in the alternative, to render the procedural due

process issues moot, and to foreclosure further college

hearings. ‘

Reasons for Granting the Writ

Certiorari should be granted because the Court of Ap-

peals decided important questions of constitutional law

which have not been but should be resolved by this Court.

The Court of Appeals’ determination on the scope of pro-

cedural due process rights for students in college disci-

ons . es aie

plinary proceedings seems in conflict with applicable rulings

from this Court, and the Fifth and Second Circuits. More-

over, the Court of Appeals’ ruling on the scope of review

of a First Amendment claim appears to be in direct con-

flict with applicable decisions of this Court.

Introduction

The importance of the issues in this case far transcends

its particular facts and the interests of the individual liti-

gants. Affected are the interests of nearly four million

college students and over eight hundred public institutions

of higher education.® The fairness of disciplinary proceed-

ings in these institutions, particularly where First Amend-

ment rights are at stake, has a direct bearing on the quality

of education offered and the degree to which enlightened

academic freedom can flourish.

In other settings this Court has recognized the impor-

tance of the fundamental right to pursue educational op-

portunity:

Today [education] is a principal instrument in awak-

ening the child to cultural values, in preparing him

for later professional training, and in helping him to

adjust normally to his environment. In these days it

is doubtful that any child may reasonably be expected

to succeed in life if he is denied the opportunity of an

education. Brown v. Board of Education, 347 U. S.

483, 493 (1954).

In 1966 eight hundred and twenty-one public institutions of

higher education enrolled approximately 3,624,000 students. U. S.

BUREAU OF THE CENSUS, Statistical Abstract of the United States:

1968, Tables 145 & 146, at 105 (89th ed. 1968).

However, outside of the equal protection context, this

Court has not heard a controversy between a college stu-

dent and his institution since 1934 in Hamilton v. Regents

of the University of California, 293 U. S. 245 (upholding

compulsory ROTC).’ Consequently, the lower federal and

state courts are left without guidelines at a time when

litigation between students and institutions of higher edu-

cation has reached unprecedented volume.’

The issues presented in this case are live and appropriate

for present consideration by this Court. Not only is the

* Denials of certiorari include, e.g., Mustell v. Rose, 282 Ala. 358,

211 So. 2d 489, cert. denied, 89 S. Ct. 297 (1968) ; Madera v. Board

of Education, 267 F. Supp. 556 (S. D. N. Y.), rev’d, 386 F. 2d

778 (2d Cir. 1967), cert. denied, 390 U. S. 1028 (1968) ; Dizon v.

Alabama Board of Education, 186 F. Supp. $45 (M. D. Ala. 1960),

rev'd, 294 F. 2d 150 (5th Cir.), cert. denied, 368 U. S. 930 (1961) ;

Steier v. New York State Educ. Commn’r, 271 F. 2d 13 (2d Cir.

1959), cert. denied, 361 U. S. 966 (1960).

8 In addition to the decisions cited above, one can include, from

the last two years alone, the following examples of completed or

pending cases between students and institutions. E.g., Wright

v. Texas Southern University, 392 F. 2d 728 (5th Cir. 1968) ;

Wasson v. Trowbridge, 382 F. 2d 807 (2d Cir. 1967) ; Troy State

University v. Dickey, No. 25507 (5th Cir. 1968), vacating as moot

273 F. Supp. 613 (M. R. Ala. 1967); Esteban (II) v. Central

Missouri State College, 290 F. Supp. 622 (W. D. Mo. 1968)

(appeal pending) ; Esteban I, 277 F. Supp. 649 (W. D. Mo. 1967) ;

Jones v. Board of Education, 279 F. Supp. 190 (M. D. Tenn.

1968) (appeal pending); Greene v. Howard Unwersity, 271 F.

Supp. 609 (D. D. C.), injunction pending appeal granted, No.

21267 (D. C. Cir. Sept. 8, 1967) ; Grossner v. Trustees of Columbia

University, 287 F. Supp. 535 (S. D. N. Y. 1968) ; Snyder v. Board

of Trustees, 286 F. Supp. 927 (N. D. Ill. 1968); Moore v. Troy

State University, 264 F. Supp. 725 (M. D. Ala. 1968); Zanders

v. Board of Education, 281 F. Supp. 747 (W. D. La. 1968);

Buttny v. Smiley, 281 F. Supp. 280 (D. Colo. 1968); Dickson v.

Sitterson, 280 F. Supp. 484 (M. D. N. C. 1968); Hammond v.

South Carclina State College, 272 F. Supp. 947 (D. S. C. 1967).

Without exception each of the above cases raised either an issue of

procedural due process or First Amendment rights.

amount of litigation significant and increasing, but a con-

siderable quantity of mature legal commentary is available

as background.’ Similarly, professional educational asso-

ciations have recently promulgated a body of customary

standards which bear directly on the kinds of questions

raised in this case.” At a recent symposium on the legal

aspects of student-institutional relationships the Dean of

New York University School of Law paraphrased a classic

colloquy between the Lord Chief Justice of Ireland and a

barrister. He wrote :™

In the hills and vales of New York from which I come

we now speak of little else than matters of student dis-

cipline and student conduct, and the institutional rela-

tionship among students, faculty, and administration.

The discussion, moreover, is neither idle nor trivial.

What was said by this Court in the context of juvenile

detention proceedings bears repeating here:

Failure to observe the fundamental requirements of

due process has resulted in instances, which might

have been avoided, of unfairness to individuals and

inadequate or inaccurate findings of fact and prescrip-

tions of remedy. Due process of law is the primary

*The symposium length publications alone include, e.g., Legal

Aspects of Student-Institutional Relationships, 45 Denver L. J.

497-678 (1968); Developments in the Law—Academic Freedom,

81 Harv. L. Rev. 1045, 1128-59 (1968); Symposium—Student

Rights and Campus Rules, 54 Cau. L. Rev. 1 (1966).

%¢ Joint Statement on Rights and Freedoms of Students, 54

A, A. U. P. Buu. 258 (1968) (approved by AAUP, USNSA, AAC,

and AAHE).

(1968 The Student as Private Citizen, 45 Denver L. J. 558

“Gia DML ig Ot ies nd AS eine Ie 30h

and indispensable foundation of individual freedom.

It is the basic and essential term in the social com-

pact which defines the rights of the individual and

delimits the powers which the state may exercise. In

re Gault, 387 U. S. 1, 19-20 (1967).

A study of disciplinary procedures conducted in 1963 re-

vealed the following “departures from what is ordinarily

provided even for petty criminal offenders:” *

[Of seventy-two state universities responding to a

mail questionnaire] * * *

3. Sixteen percent do not even provide for a hearing

in cases where the student takes exception to the

charge of misconduct or to the penalty proposed ;

4. Forty-seven percent allow students or administra-

tors who appear as witnesses or who bring the

charge, to sit on the hearing board if they are

otherwise a member;

5. Thirty percent do not allow the student charged to

be accompanied by an adviser of his choice during

the hearing; * * * c

A study of the American studeni’s freedom of expression

revealed similarly deplorable states of affairs. The latter

researchers reported :*

[A]t [large] public universities attempts to establish

student freedom have not yet been consummated. Stu-

22,Van Alstyne, Procedural Due Process and State University

Students, 10 U. C. L. A. Rev. 368, 369 (1963).

13. G. Wawiamson & J. L. Cowan, Tue AMERICAN STUDENT'S

FReepoM or EXPRESSION 155-56 (1966).

dents and administrators are not generally in agree-

ment about the actual limits of freedom as it is prac-

ticed now and, furthermore, no unusually large

number of administrators show enthusiasm for the

principle of academic ireedom for students.

Evidently, student academic freedom is neither prac-

ticed nor advocated to an unusual extent in the smaller

public universities ....

In sum, the importance to students and society that ex-

pulsions not be arbitrary, the lack of directly controlling

precedent from this Court, the volume of litigation in the

lower federal courts, the widespread public interest in stu-

dent legal rights, and the evidence that large numbers of

students are unjustifiably denied procedural due process

and First Amendment rights, all combine to urge that the

writ issue in this case.

SARL PREM AS AES IL DORR OS eo TS "

Respondents deprived petitioners of liberty without

due process of law by indefinitely expelling them from

a public institution of higher learning prior to a hear-

ing and refusing to readmit them after offering hear-

ings in which petitioners would have been prejudiced

by absence of the procedural safeguards essential to a

fair administrative adjudication.

The question of a student’s right to a fair hearing before

he is suspended or expelled is important from three per-

spectives. First, the student’s interest in pursuing higher

education is of considerable magnitude. Second, the Fourth

Circuit’s holding on this point appears in direct conflict

with a decision from the Fifth Circuit. Third, the interest

of the State in not holding a hearing prior to expulsion‘

is neither overriding nor compelling, but is little more

than a matter of administrative convenience.

A student’s interest in remaining at a public institution

is valuable to himself and society in numerous ways. His

education will better enable him to play a significant role

in the on-going progress of society. Higher education is

much more than a key to economic well-being; it has been

recognized since the time of Jefferson to be the most sig-

nificant factor in the quest for enlightened democracy.

Similarly, the penalty of expulsion can be irrevocable and

devastating.** In the instant litigation one student almost

14 Professor Seavey observed in 1957 that “the harm to the stu-

dent may be far greater than that resulting from the prison sen-

tence given to a professional criminal. A student thus dismissed

from a medical school not only is defamed without the opportunity

to demonstrate his innocence but is probably barred from becoming

a physician. A law-school student dismissed for cheating will not

AD PRASAD Tel ena ARENA OE DIY ARE BN om

immediately lost federal educational benefits. Others found

themselves in jeopardy of unjustifiably losing selective ser-

vice deferments. And, as the Fifth Circuit stated in Dixon

v. Alabama State Board of Education, 294 F. 2d 150, 157

(5th Cir.), cert. denied, 368 U. S. 930 (1961),

[it] is most unlikely that a public ccilege would accept

a student expelled from another public college of the

same state. Indeed, expulsion may well prejudice the

student in completing his education at any other in-

stitution. Surely no one can question that the right to

remain at the college in which plaintiffs were in good

standing is an interest of extremely great value.

In this case it is undisputed that petitioners were in-

definitely suspended prior to a hearing and thereby forced

to assume the burden of seeking reinstatement. “Defen-

dants admit that plaintiffs were suspended without hear-

ing... .” Defendant’s Answer, p. 9. Both the District

Court and the Court of Appeals approved this procedure

as consistent with due process, apparently because of later

opportunities for a hearing. ,

Yet this holding is in direct conflict with that of Dizon

and of lower court cases which follow Dixon. In that case

Circuit Judge Rives, joined by Judge Wisdom specifically

held that “due process requires notice and some oppor-

tunity for hearing before students at a tax supported

college are expelled for misconduct.” [Emphasis added]

294 F. 2d at 151. Other federal courts have followed Dixon

in this respect. See, e.g., Moore v. Troy State University,

be admitted to practice even if he is able to complete his legal edu-

cation.” Seavey, Dismissal of Students: “Due Process”, 70 Harv.

L. Rev. 1406, 1407 (1957).

Ini _

RTS ain

fads 6 hed Pill OLE AN a TY BU Ay ag tea as ILS ELEN LOT TILA LE POLE a lp LESAN NISMO Se 83 NEG 8 NAIL Se AE a ADT to Ae eb

284 F. Supp. 725, 727 (M. D. Ala. 1968); Esteban (I) v.

Central Missouri State College, 277 F. Supp. 649, 651

(W. D. Mo. 1967) (“plaintiffs as students at a state col-

lege are entitled to procedural due process before they can

be suspended from college”); Dickey v. Alabama State

- Board of Education, 273 F. Supp. 618, 615 (M. D. Ala.

1967) (“due process requires notice and some opportunity

for a hearing before suspension or expulsion’).

The view that college security and administrative con-

venience should permit summary, and possibly arbitrary,

expulsion has been uniformly rejected not only by the

courts above but also by the large number of professional

educational organizations which prepared and endorsed

the Joint Statement on Rights and Freedoms of Students,

54 A. A. U. P. Bunty. 258, 261 (1968). In any event, ex-

pulsion prior to hearing is seldom necessary to protect

public order. The college may impose less severe, tem-

porary restrictions on the students’ activity until hearings

are complete.

Not only does the decision below conflict with Dizon, but

it is at odds with decisions of this Court in administrative

procedure. Expulsion from college is the “academic death

penalty”. In many ways it is equivalent to quasi-criminal

penalties such as disbarment, termination of public em-

ployment, deportation, and even juvenile detention pro-

ceedings. In each of these areas this Court has insisted

upon adherence to the fundamental standards of proce-

dural due process.

For example, only last term, this Court, in an opinion

by Mr. Justice Douglas, recognized that “[{d]isbarment,

designed to protect the public, is a punishment or penalty

imposed upon the lawyer,” In re Ruffalo, 390 U. S. 544,

550 (1968), and required that specific notice of charges be

given because “[t]hese are adversary proceedings of a

quasi-criminal nature. Cf. In re Gault, 387 U.S. 1.” Id. at

551. See also Willner v. Committee on Character and Fit-

ness, 373 U. S. 96, 103-05 (1963) (applicant to bar cannot

be excluded with no hearing and no opportunity to con-

front or cross-examine witnesses against him). Expulsion

from college may be even more serious than disbarment

or refusal to license in its impact on the individual’s future

professional opportunities.

Similarly, where public employment was at issue, as in

Greene v. McElroy, 360 U. S. 474 (1959) (government con-

tractor), “[t]his Court has been zealous to protect [the

rights of procedural due process] from erosion. It has

spoken out not only in criminal cases * * * but also in all

types of cases where administrative and regulatory actions

were under scrutiny. * * *” [Citations omitted.] 360 U. S.

at 497. See also Slochower v. Board of Higher Education,

350 U. S. 551 (1956). Absence of a college education, of

course, almost wholly precludes many kinds of public em-

ployment. Moreover, here there are no considerations of

national security such as were present in Greene.

Additionally, in another administrative area where legis-

lative power is virtually plenary and national security im-

portant, that of deportation, this Court has insisted upon

fair hearings prior to expulsion from the shores of this

country. In language particularly appropriate to the in-

stant setting, this Court has held that a resident alien

cannot be deported without a fair hearing even though the

deportation order was based on confidential matter the

disclosure of which would allegedly not be in the public in-

terest. The Court in Kwong Hai Chew v. Colding, 344

U. S. 590, 597 (1953), stated:

roe” apie Sh ert RMA a NA

Although it later may be established, as respondents

contend, that petitioner can be expelled and deported,

yet before his expulsion, he is entitled to notice of

the nature of the charge and a hearing... .

See also United States ex rel. Accardi v. Shaughnessy, 347

U. S. 260, 267-68 (1954); Wong Yang Sung v. McGrath,

339 U. S. 33 (1950).

Again, in the administrative area of mail fraud orders,

this Court, in an unanimous decision rendered by Mr.

Justice Black, overturned an order for the procedural due

process defect of undue restriction on the right to cross-

examine. Reilly v. Pinkus, 338 U. S. 269, 275 (1949). The

injury inflicted upon petitioners in the instant case is at

least, if not much more, serious than that in Pinkus.

Finally, because of the severe penalties involved in this

case, analogies on procedural fairness can be taken from

the sphere of juvenile detention, if not criminal procedure.

Petitioners contend that “the rudiments of an adversary

proceeding may be preserved without encroaching upon

the interests of the college.” Dixon, supra, 294 F. 2d at

159. As Mr. Justice Fortas stated in In re Gault, 387 U. S.

1, 27-28 (1967) :

[It] would be extraordinary if our Constitution did

not require that procedural regularity and the exercise

of care implied in the phrase “due process.” Under

our Constitution, the condition of being a boy does not

justify a kangaroo court.

Cf. Kent v. United States, 383 U. S. 541 (1966) ; Gideon v.

Wainwright, 372 U. S. 335, 344 (1963). (“From the very

beginning, our state and national constitutions and laws

have laid great emphasis on procedural and substantive

safeguards designed to assure fair trials before impartial

tribunals ... .”)

For the reasons stated above the procedural due process

questions in this case are important and far-reaching. A

conflict is apparent between the decision below and that of

Dixon in the Fifth Circuit. Moreover, decisions of this

Court in several administrative areas, involving both con-

stitutional and statutory interpretation, indicate in prin-

ciple that the Court of Appeals has applied an incorrect

standard.

A. Right to Fair and Impartial Hearings in Which

Members of the Tribunals Had No Prior Official

Involvement in the Controversy and Did Not Ac-

tively Participate as Witnesses Against the Stu-

dents Charged With Misconduct.

A student’s right not to be expelled by an inherently

biased set of procedures has been variously treated by the

Fourth, Second, and Fifth Circuit Courts of Appeal. In

the instant litigation the principal witness against petition-

ers was the college president, Doctor Hardway. He testi-

fied that “they [the ten students charged with misconduct]

were guilty. ... I positively know I was not wrong about

any of the ten” (Tr. 391-92). It was Doctor Hardway who

issued the ex parte indefinite suspensions, who appeared

as the chief witness against the students at the disciplinary

hearings, and to whom an appeal lay from the recommen-

dations of the disciplinary committee. He was the tribunal

of first instance, the prosecutor, the state’s chief witness,

and the appellate tribunal.

As noted previously a study of disciplinary procedures

in state universities showed that “[fJorty-seven per cent

allow students or administrators who appear as witnesses

or who bring the charge, to sit on the hearing board... .”

Van Alstyne, Procedural Due Process and StateUniversity

Students, 10 U. C. L. A. L, Rev. 368, 369 (1963). The prob-

lem is thus widespread. Yet the Court of Appeals concluded

that “the administrative appeals [from ex parte suspen-

sion] which the college afforded the students satisfied the

requirements of due process of law.” Barker v. Hardway,

399 F. 2d 638 (4th Cir. 1968) ; Appendix p. 2a.

Although the Court of Appeals cited no authority for its

per curiam disposition, a recent Second Circuit decision is

directly to the contrary, Wasson v. Trowbridge, 382 F. 2d

807, 813 (2d Cir. 1967). In Wasson, Judge Moore, joined

by Judges Friendly and Anderson ruled:

It is too clear to require argument or citation that a

fair hearing presupposes an impartial trier of fact

and that prior official involvement in a case renders

impartiality most difficult to maintain.

Accordingly, the Second Circuit remanded the case for a

hearing on Wasson’s allegations that members of the

United States Merchant Marine Academy tribunal which

disciplined him “had participated in the investigation

against him.” Jd. The prior official involvement of Doctor

Hardway in this case is far more serious; yet the District

Court and Fourth Circuit gave almost no consideration to

this procedural due process question.

A similar question was considered by the Fifth Circuit

in Wright v. Texas Southern University, 392 F. 2d 728

(5th Cir. 1968), aff’g 277 F. Supp. 110 (S. D. Tex. 1967),

and is also presently before the Sixth Circuit in an appeal

argued on December 13, 1968. Jones v. Board of Education,

Le a oe eee OS ee” Dee ee ony e © _. er se

eae

279 F. Supp. 190 (M. D. Tenn. 1968), appeal pending No.

18,482 (6th Cir.).

The District Court in Wright observed that

[a]pplication of the notice-and-hearing requirement to

colleges and universities presents somewhat of a theo-

retical dilemma when the University official in charge

of student discipline is a witness to the student’s mis-

conduct. It is my opinion, however, that the University

official is not disqualified from making the determina-

tion of what disciplinary action is to be taken, if any.

277 F. Supp. at 112 n. 1.

In affirming Wright the Fifth Circuit relied on the official's

personal observations as well as the fact that the students

could not be found after diligent efforts by the college offi-

cials who were attempting to notify them of the charges

of misconduct. Wright, then, appears to disagree in prin-

ciple with Wasson.

Jones, in the District Court, presents a more direct clash

with Wasson. There the Court ruled that “the fact that

two members of the [disciplinary committee] testified

against the plaintiffs is [not] sufficient in itself to consti-

tute a denial of fundamental fairness.” 279 F. Supp. at

200. The Court required the plaintiffs to prove that the

witness-judges were biased, a burden of considerable mag-

nitude, which would require the students to elicit state-

ments of bias in most cases from the mouths of the tribunal

members.

A decision by this Court would resolve this difficult, im-

portant, and recurring question, and there have been nu-

merous indications by this Court of serious concern over

one * ‘i ~y . - m ee = . - . = a

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the injustice inherent in impartial tribunals which pass on

questions of importance to the lives, fortunes, and liberties

of citizens.

A relevant observation was recently made by Mr. Jus-

tice Marshall in his appendix to the Court’s opinion in

Pickering v. Board of Education, 391 U. S. 563 (1968), de-

cided last term. For the first time, in this Court, Pickering

challenged his dismissal from a teaching position on the

separate and independent due process ground that the pro-

cedure followed “deprived him of due process in that he

was not afforded an impartial tribunal.” 391 U. S. at 579

n, 2. While this Court declined to review that particular

issue since it had not been raised before, a special observa-

tion was made that “we do not propose to blind ourselves

to the obvious defects in the fact-finding process occasioned

by the board’s multiple functioning vis-d-vis [Pickering].

Compare Tumey v. Ohio, 273 U. S. 510 (1927); In re Mur-

chison, 349 U. S. 133 (1955).” Id. Petitioners in the instant

litigation raised the procedural due process questions at

the outset. The issue here concerns the same kind of tri-

bunal of educators.

Further indications of the importance this Court has

attached to impartial administrative hearings can be found

in its construction this term of the United States Arbitra-

tion Act in Commonwealth Coatings Corp. v. Continental

Casualty Co., 37 U. S. L. W. 4037, 4038 (Nov. 18, 1968).

(“[We] should, if anything, be even more scrupulous to

safeguard the impartiality of arbitrators than judges, since

the former have completely free rein to decide the law as

well as the facts... .”) A comparable posture was taken

in the early holding that the Administrative Procedure Act,

and its provisions for separation of prosecutorial and ad-

judicative functions, applied to deportation hearings.

Wong Yang Sung v. McGrath, 339 U. S. 33, 50 (1950).

(“When the Constitution requires a hearing, it requires a

fair one, one before a tribunal which meets at least cur-

rently prevailing standards of impartiality.”)

Moreover, expulsion from college approaches the seri-

ousness of a quasi-criminal penaity. There is ample au-

thority in this area that “to perform its high function in

the best way ‘justice must satisfy the appearance of jus-

tice.’ Offutt v. United States, 348 U.S. 11,14....” im re

Murchison, 349 U. S. 133, 1386 (1955). See also Parker v.

Gladden, 385 U. S. 363, 365 (1966) (per curiam) (right to

impartial jury requires reversal where bailiff indicated to

jurors that he considered defendant guilty).

A final way in which the Court of Appeals’ decision in

this case seriously departs from others in a way justifying

review by this Court can be seen from a review of analo-

gous decisions from other Courts of Appeal on the type of

question presented here. The Sixth and Fifth Circuits,

and the District of Columbia Circuit have held the Federal

Trade Commission to strict standards of impartiality. See

American Cyanamid Co. v. FTC, 363 F. 2d 757 (6th Cir.

1966) ; Pillsbury Co. v. FTC, 354 F. 2d 952 (5th Cir. 1966) ;

Texaco, Inc. v. FTC, 336 F. 2d 754 (D. C. Cir. 1964), va-

cated and remanded on other grounds, 381 U. S. 739 (1965)

(per curiam). Other Court of Appeals’ decisions have

similarly required scrupulous impartiality from the Securi-

ties and Exchange Commission, the Civil Aeronautics

Board, and the National Labor Relations Board. See, e.g.,

Amos Treat & Co. v. SEC, 306 F. 2d 260 (D. C. Cir. 1962) ;

Trans World Airlines v. CAB, 254 F. 2d 90 (D. C. Cir.

WATE EE MY OLS ST

1958) ; Berkshire Employees Ass’n v. NLRB, 121 F. 2d 235

(3d Cir. 1941).

Yet, in this case, where the First Amendment rights of

students appearing before a tribunal of faculty members

to seek reinstatement are at stake, the Fourth Circuit sum-

marily rejected their procedural due process claim.

In addition to the above, the Joint Statement on Rights

and Freedoms of Students, 54 A. A. U. P. Buiy. 258, 261

(1968), takes the unequivocal position that “[no] member

of the hearing committee who is otherwise interested in

the particular case should sit in judgment during the pro-

ceeding.”

In sum, the Court of Appeals’ decision conflicts with an

applicable ruling from the Second Circuit, is contrary to

the principie of decisions from this Court, and flies in the

face of administrative law decisions on analogous ques-

tions.

B. Right to Be Accompanied, Advised and

Represented by Retained Counsel.

A further important and recurring question presented

by this petition is whether the students could claim a right

to he accompanied by retained legal counsel when appear-

ing before the faculty disciplinary committee to seek rein-

statement from their ex parte expulsions. The Court of

Appeals’ decision on this point conflicts with two decisions

it did not consider—one from the Western District of Mis-

souri, a second from the New York State Supreme Court.

Esteban (1) v. Central Missouri State College, 277 F. Supp.

649, 651 (W. D. Mo. 1967) ; Goldwyn v. Allen, 54 Misc. 2d

94, 281 N. Y. S. 2d 899 (Sup. Ct. Queens Cty. 1967). More-

over, the decision below is wholly out of line with the

principle of decisions by this Court, common practice, the

recommendations of professional organizations, and the

considered analysis of the overwhelming majority of com-

mentators.,

The right to be accompanied by counsel at the adjudica-

tive stage of an expulsion proceeding before a faculty com-

mittee is crucial to a student. While “[a] college . . . might

feel that use of counsel is too burdensome in routine dis-

ciplinary proceedings [,] [t]he short answer to the school’s

claim is that what seems to the administrator a minor

problem may be to the student the disaster of his life.”

Developments in the Law—Academic Freedom, 81 Harv.

L. Rev. 1045, 1141 (1968). Here, as in juvenile offender

proceedings, the student “needs the assistance of counsel

to cope with problems of law, to make skilled inquiry into

the facts, to insist upon regularity of the proceedings,

and to ascertain whether he has a defense and to prepare

and submit it.” Mr. Justice Fortas in’In re Gault, 387

U. S. 1, 36 (1967). Guidance of counsel is particularly

crucial in this case, not only because the “academic death

penalty” had already been imposed before hearing, but

because the law in this area is far from settled and clear.

The college is backed by the full power of the state, and

may draw upon advice from the state attorney general or

its corporate counsel. The student needs similar guidance.

Apparently the District Court based its conclusion on

this issue upon its assumption that the hearing was ad-

visory, recommendatory, and investigatory. This is both

erroneous and not ultimately relevant. The college Presi-

dent, Mr. Hardway, issued the expulsion orders ex parte.

There was neither hearing nor representation by counsel.

Moreover, Hardway reviewed the disciplinary committee’s

findings on the same or next day, as he testified (Tr. 386).

There was no hearing on this pro forma review. This is

not a case of a broad rule-making or investigatory hearing.

The students were presumed guilty, had already been ex-

pelled, and were urging the committee to recommend re-

instatement. Here, as in Goldwyn, supra, “punitive sanc-

tions had already been imposed and the apparent, if not

the obvious purpose of the conference was to determine

whether the facts justified the action already taken.” 54

Mise. 2d at 97, 281 N. Y. S. 2d at 904.

In any event, if the disciplinary hearing is viewed as

purely investigatory, then the students never had a hear-

ing with counsel before expulsion was final.

Lower court decisions supporting the right to bring

counsel to expulsion hearings were ignored by the District

Court and Court of Appeals. These include Esteban (I)

v. Central Missouri State College, 277 F. Supp. 649, 651

(W. D. Mo. 1967) (“plaintiffs shall be permitted to have

counsel present with them at the hearing to advise

them ...”); Goldwyn, supra. To the contrary, in dictum,

is Due v. Florida A. & M. University, 233 F. Supp. 396,

403 (N. D. Fla. 1963). Cf. Madera v. Board of Education,

386 F. 2d 778 (2d Cir. 1967), cert. denied, 390 U. S. 1028

(1968) (right to counsel not applicable at high school

guidance conference where expulsion not at issue) ; Cosme

v. Board of Education, 50 Misc. 2d 344, 270 N. Y. S. 2d

231 (Sup. Ct. N. Y. Cty. 1966), aff’d mem., 27 App. Div.

2d 905, 281 N. Y. S. 2d 970 (1st Dep’t 1967).

In addition, the Court of Appeals’ decision conflicts in

principle with decisions of this Court. In re Groban, 352

U. S. 330 (1957) (5-4), took the stance that counsel must

be allowed to attend “an administrative proceeding that _

would . . . adjudicate . . . responsibilities ....” 352 U. S.

at 332. A majority, however, found the particular hearing

(an investigation by « fire marshall) to be “a proceeding

solely to elicit fects .. .” 352 U. S. at 332. A dissenting

opinion by Mr. Justice Black, joined by Justices Douglas,

Brennan, and the Chief Justice, pointed out that

this Court bes sewer held and I would never agree

that an administrative agency conducting an investi-

gation could validly compel a witness to appear before

it and testify in secret without the assistance of his

counsel. 352 U.S. at 348.

Regardless of how one views this case, petitioners never

had an administrative hearing, before the committee or

President Hardway, in which they could be accompanied by

counsel. See also In re Oliver, 333 U. S. 257, 273 and n. 31

(1948); Kent v. United States, 383 U. S. 541 (1966);

Mempa v. Rhay, 389 U. S. 128, 135 (1967) ; Powell v. Ala-

bama, 287 U. S. 45, 68-69 (1932); Goslin v. Thomas, 400

F. 2d 594 (5th Cir. 1968) ; Shioutakon v. District of Colum-

bia, 236 F, 2d 666, 669 n. 18 (D. C. Cir. 1956).

Further, in the closely analogous area of deportation

proceedings, the Ninth Circuit recognized that “[an]

alien ... must be afforded due process of law, including . . .

the right to examine witnesses . .. and to be represented

by counsel... .” Hyun v. Landon, 219 F. 2d 404, 406 (9th

Cir. 1955) (dictum), aff'd mem. by an equally divided

court, 350 U. S. 990 (1956). That case involved serious

questions of national security and administrative efficiency

which by no stretch of the imagination are present here.

Finally, it should be pointed out that the vast majority

of colleges have not chosen to exclude counsel from dis-

GEIR Se

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— senescent eat ATR SIERE ip steeds ae oes

ciplinary hearings, at least before the Fourth Circuit is-

sued a carte blanche in this litigation. A survey previously

cited found that only “[t]hirty per cent do not allow the

student charged to be accompanied by an adviser of his

choice during the hearing ... .” Van Alstyne, Proce-

dural Due Process and State University Students, 10

U. C. L. A. L. Rev. 368, 369 (1963). Similarly, the Joint

Statement on Rights and Freedoms of Students, 54

A. A. U. P. Bux. 258, 261 (1968), recommends that “[t]he

student ... should have the right to be assisted in his de-

fense by an adviser of his choice.” And, considered legal

commentary takes the same position. See, e.g., Van Al-

styne, The Student as University Resident, 45 Denver L. J.

582, 593 (1968); Heyman, Some Thoughts on University

Disciplinary Proceedings, 54 Catv. L. Rev. 73, 79 (1966) ;

Johnson, The Constitutional Rights of College Students,

42 Texas L. Rev. 344, 352 (1964). (“[It] is extremely

doubtful that the university could constitutionally deny

the student the right to be represented by outside coun-

sel.”’)

C. Right to Confront and Cross-examine the

Witnesses Against Them.

At two stages petitioners were denied an opportunity to

confront and cross-examine witnesses against them. The

ex parte expulsion foreclosed this right. Similarly, the

right was meaningless in the appeal from the disciplinary

committee to President Hardway because Hardway was

both the appellate tribunal and the chief witness against

the students.

This Court has “emphasized in recent years that pro-

cedural due process often requires confrontation and cross-

examination of those whose word deprives a person of his

livelihood. See Greene v. McElroy, 360 U. S. 474... I

Willner v. Committee on Cha;acter and Fitness, 373 U. S.

96, 103 (1963). Both Willner and Greene were administra-

tive cases.

Similarly, in In re Murchison, 349 U. S. 133, 138-39

(1955), this Court pointed out that adequate confronta-

tion and cross-examination were impossible where the tri-

bunal itself was the principal prosecution witness:

If the charge should be heard before that judge, the

result would either be that the defendant must be

deprived of examining or cross-examining him or else

there would be the spectacle of the trial judge pre-

senting the testimony upon which he must finally

pass.... The right... to examine and cross-examine

witnesses is too essential ... to have that right jeopar-

dized in such way.

Although a fair hearing is virtually impossible without

these rights, the Court of Appeals found no denial of due

process. This result is in apparent conflict not only with

Willner, Greene, and Murchison, but also Esteban (I) v.

Central Missouri State College, 277 F. Supp. 649, 651-52

(W. D. Mo. 1967). But see Dixon v. Alabama State Board

of Education, 294 F. 2d 150, 159 (5th Cir.), cert. denied,

368 U. S. 930 (1961); State ex rel. Sherman v. Hyman,

180 Tenn. 99, 110, 171 S. W. 2d 822, 826 (1942), cert. denied,

319 U. S. 748 (1943).

D. Right to Be Presumed Innocent

of Alleged Misconduct.

The testimony of President Hardway set out on page

5 of this petition shows that both he and the disci-

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plinary committee presumed that the students were guilty

of misconduct justifying indefinite expulsion (Tr. 391-94,

441). Implicit in the concept of a fair and impartial hear-

ing is the principle that adjudications not be based on a

presumption of guilt. This is due process in its most ele-

mentary sense and requires no citation of authority to illus-

trate the clash with decisions of this Court.

Il.

The Court of Appeals erred in determining that peti-

tioners’ speech and conduct activities were unprotected

by the First Amendment’s freedom of speech and as-

sembly provisions, and in declining to undertake a full

examination of the record on this issue.

In three respects the Court of Appeals erred in its treat-

ment of the important First Amendment questions raised

in this case. First, contrary to the explicit requirements

of this Court’s decisions, there was no independent exam-

ination of the entire record. Second, the appeals court

permitted expulsion in a setting where the relationship

between the educational purposes of the college and the

speech and ccnduct censured was at best tenuous. Third,

the lower court erroneously concluded that petitioners’

activities exceeded the range protected by the First Amend-

ment.

A. Scope of Review.

On August 26, 1968, the Court of Appeals heard acceler-

ated argument. That Court, working from only one copy

of the nearly 1200 page transcript, rendered its per curiam

disposition on September 3, 1968. It is apparent that the

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“clearly erroneous” standard of review was applied in find-

ing the judgment below “supported by the record” rather

than correct or incorrect based on an entire examination

of the record. 399 F. 2d 638; Appendix 2a.

This Court has repeatedly held “that where constitu-

tional rights are in issue an independent examination of

the record will be made in order that the controlling legal

principles may be applied to the actual facts of the case.

E.g., * * * New York Times Co. v. Sullivan, 376 U. S. 254,

285 (1964).” Pickering v. Board of Education, 391 U. S.

563, 578 n. 2 (1968). See also Dixon v. Alabama State

Board of Education, 294 F. 2d 150 (5th Cir.), cert. denied,

368 U. S. 930 (1961), where the Fifth Circuit fully exam-

ined the record and overturned student expulsions on pro-

cedural due process grounds.

The decision below therefore conflicts both with Picker-

ing and Dixon on the important question of scope of re-

view.

B. Relationship Between Expression and Conduct by

Petitioners and the Legitimate Educational Func-

tions of the College.

A second important aspect of petitioners’ First Amend-

ment claim concerns the extent to which a college can pun-

ish students for expression and conduct away from the

institution in a social setting wholly unrelated to the edu-

cational functions of tle institution. A demonstration at

a football game is scarcely different from one at a public

event in a nearby city. At some point an institution’s con-

trol over its students must end, and legitimate government

interests must be left to penal authorities. For example,

it might be doubted whether the college could have revoked

ee See eens cee age ao ences Cre

the diplomas of alumni whv participated in the demonstra-

tion or whether it could refuse admission to a graduate

school physics departmert for undergraduates who partici-

pated in such a demonstration within the past five years.

Because of the in terrorem impact of geographically un-

limited school rules on politically active students this ques-

tion is sufficiently important to merit consideration by this

Court. Apart from West Virginia Board of Education v.

Barnette, 319 U. S. 624 (1943), and Tinker v. Des Moines

Independent Community School District, cert. granted, 390

U. S. 942 (1968) (pending), which were high school cases,

there is no guidance available on these points in decisions

from this Court.

Decisions in the Fifth Circuit, however, have sought to

clarify the relationship between a school’s disciplinary

power and the exercise of First Amendment freedoms by

students, and have done so in a way which sharply conflicts

with the principles that guided the Court of Appeals below.

Burnside v. Byars, 363 F. 2d 744 (5th Cir. 1966), for ex-

ample, would permit “reasonable” rules and regulations

pertaining to student expression in and around the school,

but only if the rules were “materially and substantially”

related to “the requirements of appropriate discipline in

the operation of the school.” 363 F. 2d at 748-49. Such a

standard is at odds with a posture that allows school rules

to reach a student wherever he may be.

C. Petitioners’ Speech and Conduct Were Protected

by the First Amendment’s Freedom of Speech

and Assembly Provisions.

For the limited purposes of this petition there are four

observations which indicate strongly that a full review of

eat tall Sa

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the record will vindicate petitioners First Amendment

claims oz the merits.

Even assuming that petitioners’ demonstration at a dis-

tant social function has relevance to the educational aims

of the college, respondents could only justify expulsion if

each petitioner could be shown individually, by a prepon-

derance of the evidence, to have exceeded the bounds of the

First Amendment.

First, the petitioners themselves testified that their stu-

dent rights committee had always stressed nonviolence, and

that the demonstration fell far short of being directly

threatening to the physical safety of anyone (Tr. 220, 226,

539-40; Petitioners’ Exhibits 1, 2, and 22).

Second, although frora twenty-five to thirty local police-

men followed the deracnstration closely (Tr. 223), there

were no arrests, and no civil charges {were ever brought

agrinst the students.

Third, the photographie evideuve taken of the demonstra-

tion (Petitioners’ Exhibits 27-30) refutes any contention

that violence occurred or was imminent. Testimony by

Floyd Meadows, husband of a faculty member at the insti-

tntion, similarly contradicts that of respondent’s witnesses,

and Meadows was the photographer (Tr. 1106-1110).

Fourth, testimony of other witnesses than Doctor Hard-

way fails to substantiate his charges and identification of

petitioners. Two police officers, moreover, testified that two

students were trying to keep the demonstration peaceful

(Tr. 679, 730).

incipient sennneeaniteitnentnsenanemneaelie

Il.

The Court of Appeals erred by hoiding, in the alterna-

tive, that petitioners’ procedural due process claims

were extinguiched aud rendered moot by the District

Couri’s de novo proceedings, where the Court’s remedial

powers are limited to evaluating petitioners’ federal

First Amendment claims, but a new college disciplinary

tribunal would have independeni state law power to

assess lesser penalties ranging from reprimand to limited

suspension, regardless of the outcome of the First

Amendment question.

The Court of Appeals’ holding that petitioners waived

the right to a fair hearing before the disciplinary commit-

tee by contesting their expulsions on First Amendment

grounds is a striking innovation which conflicts with an

applicable decision from the Fifth Circuit, and is contrary

to the principle of decisions by this Court.

As a practical matter the decision below would either

postpone for years the vindication of a student’s First

Amendment rights, or postpone forever challenges above

the District Court level to college disciplinary procedures.

Dixon v. Alabama State Board of Education, 294 F. 2d

150 (5th Cir.), cert. denied, 368 U. S. 930 (1961), involved

the same kind of situation. Alabama State College ex-

pelled, without hearing, a group of students who partici-

pated in demonstrations against one or more of the State’s

racially discriminatory practices. The District Court held

a full trial and ruled that the students’ conduct was not

protected by the Constitution, and that, in any event, they

had no right to a hearing before expulsion where the con-

duct was in violation of college rules. 186 F. Supp. 945

(M. D. Ala. 1960). The Fifth Circuit reversed, ruled that

notice and hearing were required prior to disciplinary

action, and returned the case to the college authorities.

The court did not consider it appropriate to pass on the

merits of any disciplinary action until it had been taken

by a properly constituted college tribunal. The Court

below undertook precisely such an examination, and did

not consider the possibility that a fairly constituted disci-

plirary committee might conclude that a lesser punishment

was desirable. In this way the Court of Appeals usurped

the discretionary state law function of the college disci-

plinary tribunal. The incorrectness of this procedure was

suggested by an earlier commentary on this kind of ques-

tion:

[A procedural defect can be cured by a review on the

merits] only where the question is one of interpreta-

tion of statutory or constitutional rules. Where the

claim involves an appeal to the discretion of the ad-

ministrator, disposition by the court is not satisfac-

tory. Developmenis m the Law—Academic Freedom,

81 Harv. L. Rev. 1045, 1143 (1968).

At the- trial of this case Doctor Hardway himself gave

testimony to substantiate the possibility of mitigated pun-

ishment before the committee. “In a hearing there can be

many things discovered that would regulate or temper the

punishment that was to result” (Tr. 392).

Further support in principle can be found in decisions

of this Court. Kwong Hai Chew v. Colding, 344 U. S. 590

(1953), for example, was a deportation case which held

that a resident alien could not be expelled from the country

without a fair hearing, even though the deportation order

was based on corfidential matter the disclosure of which

would not be in the public interest. Similarly, United

States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954),

ruled that an alien could not be expelled without a fair

hearing even though he admitted being in the country

illegally. Both decisions recognized that the hearing board

was required to exercise its discretion fairly, although the

conclusion might be foreordained.

In two ways the instant case is even stronger. First, it

involves no considerations of national security as are pres-

ent in immigration matters. Second, petitioners, and those

who follow them, are now required to waive their First

Amendment rights or postpone their assertions in order to

contest the procedures by which they were expelled. This

Court has spoken out on numerous occasions against stat-

utes and rules which diluted or extinguished constitutional

claims. Most recently, in United States v. Jackson, 390

U. S. 570, 582 (1968), Mr. Justice Stewart, writing for the

Court, stated that

[w]hatever may be said of Congress’ objectives, they

cannot be pursued by means that needlessly chill the

exercise of basic constitutional rights. ... Shelton v.

Tucker, 364 U. 5. 479, 488-489... . The question is not

whether the chilling effect is ‘incidental’ rather than

intentional; the question is whether that effect is un-

necessary and therefore excessive.

In the instant case there is no need for a Court of Appeals

to refuse to review the procedural due process claims of

petitioners. If mootness means the absence of a contro-

versy it has no application here. At a fair hearing, before

a properly convened disciplinary committee, the issue

would be whether sound discretion justified a penalty less

than indefinite expulsion. The Court of Appeals has de-

prived petitioners of the opportunity to present that issue.

CONCLUSION

For the reasons outlined above the writ of certiorari

should be granted. |

Respectfully submitted,

Roy Lucas

20 East Ninth Street

New York, N. Y. 10003

Metvin L. Wouir

156 Fifth Avenue

New York, N. Y. 10010

Hersert H. HENDFRSON

317 Ninth Street

Huntington, West Virginia 25701

Attorneys for Petitioners

Norman Dorsen

School of Law

New York University

Washington Square

New York, N. Y. 10003

Lewis M. STEe,

55 Central Park West

New York, N. Y. 10023

‘Of Counsel

APPENDIX

7, Aira ire ec i PSA SEM RANT

Opinion of the United States Court of Appeals

for the Fourth Circuit

No. 12,600

ALLEN F, Barker, Donatp Steven Hr, THomas MALone,

Terry Miniter, CoarLtes EK. Nrwsoip, CARMEN PILGRIM,

Axonzo Saunpers, ALBERT SmitH, SHaron Maria Sirs,

and Aan Scott Tucker, Individually and in Behalf of

All Those Similarly Situated,

Appellants,

VETSUS

WENDELL G. Harpway, President of Bluefield State Col-

lege; J. I. Turner, Dean of Men of Bluefield State

College; Wanva Moorsz, Dean of Women of Bluefield

State College; and West Vircrnia State Boarp or Epv-

CATION, a Public Body Corporate,

; Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA, AT BLUEFIELD.

Swney L. Curistm, District Judge.

(Argued August 26, 1968. Decided September 3, 1968.)

Before:

HaynswortnH, Chief Judge, and

Winter and Burzner, Circuit Judges.

Per Curiam:

After the appellants, students at Bluefield State College,

violently protested the policies of the college’s administra-

tive officers, they were suspended. The district judge re-

fused to order their reinstatement setting forth his reasons

in an Opinion which we find to be supported by the record

and to apply correct principles of law. Barker v. Hardway,

283 F. Supp. 228 (S. D. W. Va. 1968).

We believe the district judge correctly concluded that

the administrative appeals which the college afforded the

students satisfied the requirements of due process of law.

In any event, the district judge granted them a plenary,

de novo hearing with counsel. It was upon evidence re-

ceived at this hearing that he based his own findings con-

cerning the conduct that led to their suspension. The

proceedings in the district court render moot the students’

contention that they were denied due process at the college

level.

Affirmed.

— — *. ee ee Ss Bai oh

Bae Bot kelkk WR

Opinion of the United States District Court

for the Southern District of West Virginia

Bluefield Division

Civ. No. 1037

AuLEN F’, Barker, Donatp Steven Hi, THomas MaLone,

Terry Minter, Cuartes EK. Newsoip, CaRMEN PrGRIM,

Atonzo Saunpers, ALBERT SmiTH, SHARON Maria Smits,

and Aan Scott Tucker, Individually and in Behalf of

all those similarly situated,

Plaintiffs,

WEnpELL G. Harpway, President of Bluefield State Col-

lege; J. I. Turner, Dean of Men of Bluefield State

College; Wanna Moore, Dean of Women of Bluefield

State College; and West Vimernia State Boarp or Epv-

caTion, a Public Body Corporate,

Defendants.

UNITED STATES DISTRICT COURT

S. D. West Viren,

BLUEFIELD Drvision. —

April 10, 1968.

Curistiz, District Judge:

STATEMENT OF THE CASE

On October 26, 1967, the plaintiffs, suspended students

at Bluefield State College, filed a verified complaint in this

court seeking to enjoin the defendants from continuing to

enforce their suspension. As is here pertinent, the com-

plaint alleged that since the beginning of the September

1967 term, the plaintiffs and other students had conducted

peaceful and non-violent protests, and that on October 14,

1967, approximately two hundred students participated in

such a demonstration at the college football field to protest

the alleged racially discriminatory practices of the college

administration and for the alleged denial of First Amend-

ment rights. Plaintiffs further alleged that they were sus-

pended without notice of hearing and for the sole purpose

of stifling peaceful protest activities of students at Blue-

field State College in violation of their First and Four-

teenth Amendment rights.

The defendants, by. answer, denied that all the assem-

blages occurring since September 1967 were peaceful and

non-violent, and alleged that several such demonstrations

had been violent in nature and resulted in loss of property

and personal injury and had seriously hampered, impeded

and disrupted the functioniag of the coliege. Specifically,

defendants alleged that the October 14 demonstration he-

came violent and involved attempts te do bodily harm to

defendant Hardway and others, necessitating active police

participation. Defendants further alleged that the suspen-

sion procedure utilized was justified as essential to the

safety and welfare of the entire student body, faculty and

property and the orderly operation of the college; that the

letters of suspension were the only means of notification

available, inasmuch as all efforts to contact plaintiffs were

frustrated by their elusive conduct.

By stipulation and Order entered on January 2, 1968,

the following issues were formulated:

eT ae _

2. DiS toiiat bE ST

Whether the plaintiffs did, singly or in combination, or

in concert with others, overtly engage in, or encourage or

incite others to engage in, a non-peaceful or violent pro-

test or demonstration at Mitchell Field Stadium on Oc-

tober 14, 1967, and if so, whether the degree of their

activity or participation at or preceding such demonstra-

tion was such as to call for disciplir ry action by the

school administration, and if so, what?

II.

Whether those affected were given an opportunity to be

heard before or after their suspensions, and if so, whether

the procedures followed were adequate to meet the re-

quirements of federal due process.

Il.

What rules and regulations, if any, were promulgated

for the government of the student body, on and off campus;

when they became effective; what notice or publication

thereof was given the student body; and whether they, by

their terms, applied equally to both whites and Negroes,

and whether they were administered and enforced by the

school administrators as between whites and Negroes.

IV.

Whether the defendants, or any of them, took any ac-

tions during the year 1967 which denied plaintiffs their

First Amendment rights to freedom of speech, assembly

and petition for redress of grievances.

An evidentiary hearing on these issues commenced on

January 2, 1968, and was concluded on January 12, 1968.

Decision was deferred pending preparation of a trap-

script of the evidence and the submission of briefs.

Finpincs oF Fact

IL.

A. Plaintiffs were students at Bluefield State College, a

state-supported institution of higher learning, located in

Bluefield, West Virginia. It is operated by, and is under

the “control, supervision and management” of the West

Virginia Board of Education.’ Rule making authority is

vested in the president and faculty subject to the approval

of the board.? The college was originally established and

operated as an all-Negro institution, but was desegregated

soon after the 1954 Supreme Court school integration de-

cision. Present school enrollment is 1530, of which ap-

proximately 60% is white and 40% is Negro. Student fi-

nancial aid is distributed on the basis of 76% to Negro

students te 24% to white students.

B. Alonzo Saunders, one of the plaintiffs and a leader

in the student rights movement at the college, planned a

student protest demonstration which was to begin during

the half time of the homecoming football game at Mitchell

Field Stadium on October 14, 1967.

C. The ostensible purpose of the student protest demon-

stration was to encourage Dr. Hardway, President of

Bluefield State College, to grant the students more free-

dom and a greater voice in the administration of the col-

lege. However, it, in reality, culminated into an effort to

1 'W.Va.Code, 18-2-13

2 W.V2.Code, 18-14-1

embarrass, intimidate and denounce Dr. Hardway and

Dean cf Women Wanda Moore, two of the defendants.

D. Approximately two hundred students, the majority

of whom were Negroes, demorstrated at half time by

marching back and forth on the playing field, carrying plac-

ards and chanting themes denouncing Dr. Hardway and

Dean Moore. That the half time demonstration which was

conducted on the playing field was peaceful and non-violent

is undisputed. We are primarily here concerned with what

ensued thereafter.

E. Subsequent to the half time and after the game had

resumed, the student demonstrators moved into the home

stands and unsuccessfully attempted to persuade a group

of white fraternity members to join in the protest. The

demonstrators then moved to the section of the bleachers

where Dr. Hardway, Mrs. Hardway and their guests, Dean

Moore, Mr. Moore, several other members of the college

staff and other spectators were seated, and continued to

demonstrate by displaying their placards and chanting

themes as they had done during the half time. They en-

circled the section in which Dr. Hardway and his guests

were seated and deliberately obscured their view of the

football game by holding a placard directly in front of

their faces. Several of the faculty members and other

spectators felt compelled to leave the game as the actions

of the demonstrators became more harassing and menacing.

Thereupon, the police, deeming it expedient to do so, es-

corted Dr. Hardway and Mrs. Hardway and the latter’s

father and mother from the stands. Mrs. Hardway and

her mother left the stadium and the police escorted Dr.

Hardway and his father-in-law across the end of the field

to the visitors’ side which was then virtually unoccupied.

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F. While this was being done, one of the demonstrators

spat into the face of one of the police officers; another, Al-

bert Smith, called out, “Hardway, we’re going to get you.”

G. Soon after Dr. Hardway and his guest had taken

their seats in the stands on the visitors’ side, the demon-

strators marched over and continued in their menacing con-

duct. With the exception of Donald Hill and Alan Tucker,

all of the suspended students were identified as being ac-

tive participants in the events on the visitors’ side. Hill

was identified as one of the demonstrators whose conduct

en the home side prompted the police tc escort Dr. Hard-

way and his guests from that side of the field.

H. On the visitors’ side, Alonzo Saunders, Charles New-

boid, Carmen Pilgrim, Sharon Smith, Thomas Malone, Al-

len Barker and Terry Miller were specifically identified as

being among those urging that they charge the police offi-

cers who stood between them and Dr. Hardway. Shouts of

“Put the girls up front, they won’t hit them” were heard.

The demonstrators eventually entered the stands where

Dr. Hardway was seated, forcing the police officers to form

a protective circle around him and to escort him entirely

from the stadium. Alonzo Saunders was identified as the

general in charge of this shameful episode. The demon-

strators threw rocks and bottles as they left the stadium.

One police officer was struck in the back by a rock. One

demonstrator attempted to reach through the police circle

and grab or strike Dr. Hardway.

I. The demonstrators followed Dr. Hardway and the

police officers to the parking lot where his automobile was

parked and attempted to prevent his leaving. An automo-

bile was driven in front of Dr. Hardway’s to block its exit.

The police had to force the driver to move. The demon-

strators beat upon and rocked Dr. Hardway’s automobile.

One police officer was struck in the face by a rock, another

was struck in the face by a demonstrator.

J. After the police provided for Dr. Hardway’s exit,

they had to form a defensive line to protect themselves

from the demonstrators. The police officers, while being

verbally and physically abused, were forced to back from

the parking lot into the stadium.

K. Dr. Hardway was personally able to identify Allen

F, Barker, Donald Steven Hill, Thomas Malone, Terry

Miller, Charles Newbold, Carmen Pilgrim, Alonzo Saun-

ders, Albert Smith and Sharon Maria Smith as nine mem-

bers of the student demonstrators, either leaders or active

participants in the demonstration that took place at the

stadium after the half time. Some of these were also iden-

tified by the police officers. One, Terry Miller, was identi-

fied by a police officer, Sergeant Dalton, as a participant

in the melee on the parking lot.

L. Approximately three hundred students engag ‘dina

“sing in” on Dr. Hardway’s lawn, located on the college

campus, at about 12:30 A.M., October 16, 1967. The “songs”

were of the same chants that had been used during the

demonstrations on October 14. Dr. Hardway remained in-

side and observed Alan Tucker as the leader of the “sing

in.”

It is, therefore, specifically found as a matter of fact

that all the suspended students except Alan Tucker did,

following the football game half time, engage in, and en-

10a

courage others to engage in, a non-peaceful and violent

protest demonstration at Mitchell Field Stadium on Octo-

ber 14, 1967, which posed an imminent threat of danger to

Dr. Hardway and others in lawful attendance at the game,

in violation of the rules and regulations of the Bluefield

State College, and that the degree of their activity and

participation therein was such as to call for the invocation

of disciplinary action against them by the school adminis-

tration pursuant to such rules and regulations.

It is further found as a fact that while Alan Tucker, the

other suspended student, was the leader of the “sing in”

after midnight, to-wit, at about 12:30 A.M., October 16,

1967, on Dr, Hardway’s lawn, located on the college campus,

the exercise itself was unaccompanied by any violent or

non -peacefui activity, and though it was obviously designed

to further harass and annoy Dr. Hardway and was in vio-

lation of the rules of the school, it may have been permis-

sible under the First Amendment. Tucker is given the

benefit of the doubt and exonerated of blame for this inci-

dent as a matter of fact.

A. On Monday, October 16, 1967, prior to taking any

action against the nine students identified as participants

in the demonstration after half time at the homecoming

football game and the one who had led the “sing in” pre-

viously mentioned, Dr. Hardway sent Dean of Men Joseph

I. Turner and Dean of Women Wanda Moore to contact

each and request them to come to his office. They were

unable to locate any of the ten students in their scheduled

classes or at their record places of residence. Dean Turner

later found four of the male students participating in an-

—_ EE —— ——— ee Ee

lla

other demonstration on the campus and requested each of

them to go to Dr. Hardway’s office. Each refused.

B. Being unable to get the ten students to come to his

office, Dr. Hardway mailed suspension letters to each and

notii | their parents by telegram. The ten students were

advised in the letters of the reason for the action, that

they could ave an appeal hearing before the Faculty Com-

mitiee on Student Affairs, and how to request one.

C. Each of the ten suspended students formally re-

quested a hearing before the Faculty Committee on Stu-

dent Affairs.

D. The Committee notified each of the students of the

specific charges against them, the procedures to be followed

and the date and time for the hearing.

K. Six of the suspended students* appeared before the

Committee and upon having their requests-to be repre-

sented by legal counsel refused, read a prepared statement

and refused to go on with the hearing.

F. Four of the suspended students‘ appeared and had

~a hearing. The Committee recommended reinstatement for

two® and they were reinstated on January 2, 1968. The

other two suspensions remain in force. Thus, Dr. Hardway

accepted the recommendations of the Committee in each

instance.

8 Charles Newbold, Thomas Malone, Terry Miller, Sharon Smith,

Carmen Pilgrim and Alonzo Saunders.

* Albert Smith, Allen Barker, Donald Hill and Alan Tucker.

5 Alan Tucker and Donald Hill.

BA Aner ere mittee ae NR a ,

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12a

G. The Committee extended further opportunities for a

hearing to the six students who refused. Two other hear-

ing dates were set for each of the six. Nene appeared for

a hearing at any of the designated times.

H. Bluefield State College procedures in effect on Octo-

ber 14, 1967 provide that any student subject to discipli-

nary action may appear before the Dean of Men, Dean of

Women, Faculty Committee on Student Affairs or the

President upon request. When the Faculty Committee on

Student Affairs is to consider a problem in which a student

is involved, the student is notified of the specific charge

against him; that he may bring with him to the hearing

as an advisor a faculty member, a fellow student or his

parents; that he may face his accuser; that he may pro-

duce witnesses; and the date and time set for the hearing.

I. The Committee consists of six faculty members, viz.:

Dr. Cortez D. Reece (Negro), Mrs. Othello Jefferson

(Negro), Mr. Randolph White (white), Mrs. Rita Hill

(white), Miss Doris Rice (Negro) and Mr. Donald

Craft (white). Thus, the composition of the Committee

with reference to race is equally divided. Mr. Craft is its

chairman.

It is, therefore, specifically found as a matter of fact that

the plaintiffs were duly notified of their suspensions, the

reasons therefor and were given an opportunity to be heard.

Whether the procedures provided and followed were ade-

quate to meet the requirements of due process is a ques-

tion of law and it is dealt with elsewhere herein.

13a

A. Dr. Hardway’s administration began in July of 1536.

A student handbook had not been printed for the academic

years 1964-65 and 1965-66. Early in his tenure, Dr. Hard-

way assigned to Dr. S. E. Cary, Director of Guidance, the

task of preparing a current student handbook which was

to include, inter alia, disciplinary procedures. After Dr.

Cary compieted the task, it was sent to the printer early

during the summer of 1967, but the printed copies were

not delivered to the college until sometime during the first

week of October 1967. They were immediately distributed

to the student body. This handbook is identified in the rec-

ord as “Plaintiffs’ Exhibit B.”

B. The handbook also sets forth the right of students

to assemble, discuss, debate and to disseminate personal

and group opinion; the right to initiate and conduct organi-

zations and programs consistent with the institutional pro-

gram of higher education and college policy and the right

to use college facilities in accordance with college regula-

tions. Also included is a code of conduct.

C. With the exception of the disciplinary procedures,

the other matters set forth in the student handbook are es-

sentia.ly the same as contained in similar handbooks of

prior years. Furthermore, the procedures were given by

the Faculty Committee on Student Affairs to each and

every student against whom disciplinary action was taken.

It is, therefore, specifically found as a matter of fact

that the handbook identified as “Plaintiffs’ Exhibit B” was

in effect and was distributed to the student body prior to

October 14, 1967; that the rules, regulations and disciplinary

procedures contained therein, by their terms, applied to all

14a

students equally; and that there was no discrimination

proven against the school administration in the manner of

their application and enforcement as between students or

as between races.

The record fails to disclose any preconceived policy or

design by the West Virginia Board of Education or the

administrative or faculty staff of the college to restrict or

deny the plaintiffs or others similarly situated of their

First Amendment rights, or any specific instance where

any of the defendants attempted te do so. The numerous

attempts by the defendants and other school acministra-

tors to establish communications with the student body and

appeals for a list of grievances, the apparent recognition

of the de facto Students Rights Committee, the numerous

demonstrations on campus such as the student union sit in

and the student demonstration while Arter Hall burned, all

attest to the administration’s desire to encourage rather

than deny or restrict the students in the exercise of their

lawful rights.

It is, therefore, found as a matter of fact that none of

the defendants took any action during the year 1967 which

denied, or had the effect of denying, plaintiffs any of their

First Amendment rights to freedom of speech, peaceful

assembly, or petition for redress of grievances.

Discussion anp Conciusions or Law

The statement of general policies and regulations con-

tained in the student handbook requires decorous, sober

and upright conduct of every student both on and off the

campus. It further interdicts conduct which fails to show

lda .

respect for good order, moral actions, personal integrity,

rights of others, or for the care of property, and provides

for disciplinary action against the offender. These are rea-

sonable rules and generally recognized as necessary to or-

derly administration of schools and colleges. Their obvious

purpose is twofold: (a) to protect the authority and ad-

ministrative responsibility which is imposed on the officers

of the institution, and (b) to provide a suitable climate to

students for study and relaxation. Unless these officials

have authority to keep order, they save no power to guar-

antee education. The power of the president of the college

to oversee, to formulate rules and regulations, and to rule

is a necessary element in order to provide and promote

education. Hammond v. South Carolina State College, 272

F. Supp. 947 (D. C. S. C. 1967). In West Virginia, such

power is specifically delegated by the Board of Education

to the president and faculty. Moreover, these officials have

an inherent general power to maintain order and exclude

those who are detrimental to the student body and institu-

tion’s well-being, so long as they exercise sound discretion

and do not act arbitrarily or capriciously. Buttny v. Smi-

ley, 281 F. Supp. 280 (D. Colo. 1968) ; Zanders v. La. State

Board of Education, 281 F. Supp. 747 (D. C. W. D. La.

1968) ; Goldberg v. Regents, 57 Cal. Rptr. 463, 473 (Ct. App.

1st Dist. 1967).

Consequently, the judiciary must exercise restraint in

questioning the wisdom of specific rules or the manner of

their application, since such matters are ordinarily the pre-

rogative of school administrators rather than the courts.

Burnside v. Byars, 363 F. 2d 744 (5th Cir. 1966); Black-

well v. Issaquena County Board of Education, 363 F. 2d

749 (5th Cir. 1966) ; Due v. Florida A & M University, 233

ce a Rs ai a a

OO et ne ee A

ead? opeset-+7

16a

F. Supp. 396, 403 (N. D. Fla. 1963) ; 47 Am. Jur. (Schools)

Sec. 178, p. 430.

It is concluded as a matter of law that the described acts

and conduct of the identified plaintiffs at Mitchell Field

Stadium on October 14, 1967, far exceeded the bounds of

a peaceful demonstration or protest for the correction of

grievances; that the same were in clear violation of the

rules and regulations of Bluefield State College, and that it,

therefore, became and was the duty of the administrative

authority of the college to take appropriate action and to

invoke available disciplinary procedures then in effect

against those responsible. Having so concluded, Dr. Hard-

way’s action in issuing the suspension orders, with the

right to the parties to appeal to the Faculty Committee on

Student Affairs, was clearly within the recognized limits

of his authority as the administrative head of the college.

There thus being no abuse of discretion on his part in so

doing, this Court is without authority to interfere. Buttny

v. Smiley, supra; Zanders v. La. State Board of Education,

supra; Goldherg v. Regents, supra.

We now reach the question of whether the appeal and

hearing procedures provided and utilized were adequate to

meet the requirements of due process of law.

Whatever the law might previously have been on the sub-

ject, the rule announced by the Fifth C’rcuit in Dixon v.

Alabama Board of Education, 294 F. 2d 150, cert. denied

368 U. S. 930, 82 S. Ct. 368, 7 L. Ed. 2d 193 (i961), that

due process under the Fourteenth Amendment requires no-

tice and opportunity for a hearing before a student at a

tax-supported college can be expelled for misconduct and

SAM Dake ak STE

ee a

17a

prescribing minimum procedural guidelines to be followed

thereat, has since been generally accepted as correct by

other courts. But the Court was most careful to note that

its action in extending the aggrieved students the right to

a hearing in that case was not to “imply that a full-dress

judicial hearing, with the right to cross-examine witnesses,”

was contemplated, and in a further effort to avoid any pos-

sible misunderstanding of its ruling in this regard it went

on to specifically and expressly limit and restrict the hear-

ing procedure to one of a non-adversary nature. In so

doing, it by appropriate language recognized the practical

difficulties and detrimental effect a broader application of

the rule would have upon the institution and students alike. .

I find no basis for disagreement with that ruling or its

rationalization.

As has been shown in the findings of fact, after receiving

their notice of suspension from Dr. Hardway, each of the

ten students requested a hearing before the Faculty Com-

mittee on Student Affairs and after the Committee had

notified each of the specific charges, the procedure to be

followed and the date and time for the hearing, four ap-

peared and received hearings. The other six appeared but

refused to submit to hearings unless represented by counsel.

Their requests for counsel being refused, no hearings were

held. Thereafter, on two separate occasions, the Commit-

tee extended further opportunities for hearings to the six

students but none appeared.

They cannot base their refusal to submit to a hearing

upon the failure of the procedure utilized to comply with

any state statute on the subject for there was none in

effect at the time. Instead, they seek to find justification

for their refusal in the due process clause of the Four-

teenth Amendment. What is required to meet procedural

18a

due process there appears to be controlled by the circum-

stances of each case. As was observed by Mr. Chief Jus-

tice Warren in Hannah v. Larche, 363 U. S. 420, at 442, 80

S. Ct. 1502, 1514, 4 L. Ed. 2d 1307, “‘due process’ is an

elusive concept. Its exact boundaries are undefinable, and

its content varies according to specific factual contexts.”

It thus has no universal application to all situations and,

as the Chief Justice further pointed out, it has “tradition-

ally been associated with the judicial process” (emphasis

added), and whether it “requires that a particular right

obtain in a specific proceeding depends upon a complexity

of factors.” Obviously the Committee here had none of

the attributes of a judicial body, since its only function was

to gather information and make recommendations which

had no binding effect on the president and faculty or on the

Board of Education. It was not represented by counsel.

Dixon was explicit. as previously noted, in pointing out

that a student disciplinary hearing need not be a full-dress

judicial hearing an‘ interpretations thereof have also

clearly negated such a concept. Due v. Florida A & M Uni-

versity, supra; Wasson v. Trowbridge, 382 F. 2d 807 (2d

Cir. 1967); Madera v. Board of Education, 386 F. 2d 778

(2d Cir. 1967); Zanders v. La. State Board of Educaticn,

supra; Cornette v. Aldridge, 408 S. W. 2d 935 (Tex. Civ.

App.). And, as was pointed out in Madera, the right to

counsel is not an essential ingredient to a “air hearing in

all types of proceedings, citing as authority for the state-

ment Mr. Justice Frankfurter’s concurring opinion in re

Groban, 352 U. S. 330, 77 S. Ct. 510, 1 L. Ed. 2d 376,

where he commented,

“** * The utmost devotion to one’s profession and

the fullest recognition of the great role of lawyers in

the evolution of a free society cannot lead one to erect

19a

as a constitutional principle that no administrative in-

quiry can be had im camera unless a lawyer be allowed

to attend.”

Thus the touchstones of the application of due process are

reasonableness and fairness in view of all the facts and

circumstances of the particular case. Due v. Florida A & M

University, supra; Hannah v. Larche, supra. And it may

be noted in passing that the law indulges the presumption

that school authorities act reasonably and fairly and in

good faith in exercising the authority with which it clothes

them, and casts the burden on him who calls their conduct

into question to show that they have not been actuated by

proper motives. 47 Am. Jur. 2d (Schools) Sec. 188, p. 435.

While it is true that Gideon v. Wainwright, 372 U. S.

335, 83 S. Ct. 792, 9 L. Ed. 2d 799 in re Gault, 387 U. S. 1,

97 S. Ct. 1428, 18 L. Ed. 2d 527 (1967) and Mempa. v.

Rhay, 389 U. S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967),

have expanded the Sixth Amendment’s guarantee of right

to counsel in criminal and semi-criminal cases, all involving

the right of liberty, they have no application to matters

purely of a civil nature, and some of the cases cited by

counsel for the plaintiffs are not in point for that reason.

It must be kept in mind that this is a civil proceeding and

unless the right in such a proceeding can be read into the

due process clause of the Fourteenth Amendment or found

in some Act of Congress or administrative rule or regula-

tion, it does not exist. Suess v. Pugh, 235 F. Supp. 661

(N. D. W. Va. 1965); Spears v. United States, 266 F.

Supp. 22 (S. D. W. Va. 1967). I have been cited to no

decision by the Supreme Court or any other court expressly

extending the right of counsel to a student at a school dis-

ciplinary hearing and my own extensive research has

Py eR ee Oe Re

oe eect Pv Ra ee eM et

20a

failed to reveal one. Dixon significantly failed to include it

as a required safeguard in its enumeration of recom-

mended minimum requirements; Wasson expressly declined

to grant it under the facts and circumstances of that case.

Madera and Zanders, although envisioning possible situa-

tions where the right might be required, avoided a definitive

ruling on the point. There is a well-recognized rule of con-

struction that where reasonable doubt exists as to the mean-

ing of any law, or the relief sought is questionable, courts

must act in view of their foresight of consequences. Thus

courts must carefully determine and balance the nature of

the private interest affected against the public interest in-

volved, and this rationalization has undoubtedly influenced

the judiciary in its reluctance to grant adversary judicial

status to student disciplinary hearings. I share that re-

luctance. See 58 A. L. R. 2d (Annotation) See. 4, pp. 909-

12.

I conclude, therefore, that in the circumstances of this

case, the Commitiee did not deny the six aggrieved students

due process by refusing their request for counsel. And this

is true for still another reason. The Supreme Court recog-

nized in Hannah v. Larche, supra, a case dealing with the

validity of certain rules of procedure adopted by the Com-

mission on Civil Rights forbidding the presence of counsel,

that the determinative factor there was whether the pro-

ceeding was “investigative” or “adjudicative.” If investiga-

tive only, the right does not obtain; if adjudicative, it does.

Applying this criterion to the facts of the instant case, it

is clear the aggrieved students were not entitled to counsel

before the Faculty Committee on Student Affairs, since it

unmistakably appears from the evidence and the handbook

that its only function was to gather facts and make recom-

mendations to the president and faculty who could accept

21a

or reject them as they might choose. The adjudicative au-

thority at the college rested at all times with the president

and faculty and was never delegated to the Committee, as

indeed it could not lawfully have been under state law.

Needless to say, the disposition thus made of the ques-

tion does not mean that the six students are remediless in

the premises. It simply means that in the circumstances

of the case, they were not and are not entitled to legal rep-

resentation before the Faculty Committee on Student Af-

fairs by reason of the due process clause of the Fourteenth

Amendment. If they be advised by their counsel that the

college administrators have abused their discretion or have

acted arbitrarily or capriciously, which in the context of

the due process clause I do not find to be the case, they

may relitigate the issue by way of mandamus in an inde-

pendent action where all the rights and privileges of a liti-

gant in an adversary judicial proceeding, including the

right of legal representation, would be judicially afforded to

both sides. This is the proper procedure to be followed in

seeking relief for abuse of ministerial power or for arbi-

trary and capricious conduct of school officials. 12 M. J.

(Mandamus) Sec. 14, p. 357; 47 Am. Jur. (Schools) Sec.

187, pp. 433-5; 58 A. L. R. 2d (Annotation) Sec. 4, pp.

909-12.

Til

Having found no evidence in the record that the rules

and regulations were not applied equally to both whites and

Negroes at Bluefield State College by the school adminis-

trators, it is concluded as a matter of law that the plaintiffs

have failed to sustain the burden of proof on the allega-

tion of racial discrimination.

Gerster we

ii hei oi

22a

True it is that enrollment in school does not mean the

student surrenders any of his constitutional rights. But

by the same token, that fact does not give him the right to

abuse and harass the administrators of the institution or

engage in conduct detrimental to its well-being or which

may tend to deprive other students of the right to a peaceful

atmosphere in which to pursue their ambition for an educa-

tion. Nor can it be gainsaid that the plaintiffs and their

fellow demonstrators had the right under the First Amend-

ment to bring their grievances to the attention of Dr. Hard-

way and other college officials in attendance at the foot-

ball game, though a more appropriate time and place could

very well have been chosen, and the evidence is uncontra-

dicted that they were permitted to freely exercise this right

by marching, chanting, singing and displaying signs and

placards on and around the field throughout the half time;

but when they entered the stands when the game resumed

and by abusive and disorderly acts and conduct, first on the

home side and then on the visitors’ side, deprived Dr. Hard-

way and others in lawful attendance of the right to see and

enjoy the game in peace and with safety to themselves, they

thereby exceeded this constitutional privilege and forfeited

its protection. I have failed to find any case saying that

the right of free speech and peaceful assembly carries with

it the right to verbally abuse another or to threaten him

with physical harm or to deprive him of his right to enjoy

his lawful pursuits.

As was pointed out in Baines v. City of Danville, 337

F. 2d 579 (4th Cir. 1964), a case dealing with racial demon-

strations, First Amendment rights “are not a license to

trample upon the rights of others. They must be exercised

23a

responsibly and without depriving others of their rights,

the enjoyment of which is equally precious.”

‘The acts and conduct of the demonstrators after the

game resumed at half time were clearly non-peaceful and

Dr. Hardway was fully within his rights in citing those he

could identify for disciplinary action. In doing so, he did

not violate any of their First Amendment rights.

The other incidents relied upon for First Amendment

infraction were the deprivation of Robert Hayes to the use

of the facilities of Pay.e Hall for approximately one month

as a result of his living in the men’s dormitory without reg-

istering or paying fees, contrary to the rules of the school;

the attempt to deprive Florence Robinson of student finan-

cial aid on the charge that she misgraded another student’s

paper, and placing Carolyn Bratton, an off-campus student,

on social probation (taking away her campus privileges

except to attend classes), as defined in the student hand-

book. A careful examination of the evidence bearing on

each of these incidents convinces me that the facts justified

the action taken and that in each instance the action taken

was clearly within the discretionary authority of the school

administration. Furthermore, I find no support in the evi-

dence to sustain the allegation of violation of First Amend-

ment rights of any other student at any other time or place

during the year 1967. In fact, it will suffice to refer only to

the testimony of J. I. Turner (T-903-906), Dean of Men,

who has been with the college since 1946, and the testimony

of Richard A. Brown (T-1077-1079), Dean of Faculty, who

has been with the college since 195i, for sufficient answer

to this charge. In the circumstances of this case, I feel

fully warranted in giving to the testimony of these widely

known and highly respected Negro educators significant

weight on this issue.

24a

In conclusion, it should be observed that after listening

to 5 days of testimony, examining 55 exhibits and reviewing

an 1126-page transcript of the evidence, one thing stands

out rather clearly and that is that we are not really con-

fronted here with lack of integration nor discrimination

between races nor denial of legitimate rights to freedom of

speech and peaceful assembly, but rather with a conflict

between certain students, white and Negro, on the one hand,

and the college administrators, white and Negro, on the

other, for supremacy in the field of school policy and school

administration. In essence, this is the real issue in this

case, and on this issue the welfare of other students, of the

institution itself and of society geucrally, dictates that the

truculent students must not prevail.

25a

West Virginia Code §18-14-1

ARTICLE 14.

BLUEFIELD STATE COLLEGE.

§ 18-14-1. Continuation; change of name; management;

rules and regulations.

The Bluefield State teachers’ college, heretofore estab-

lished and located at Bluefield, in Mercer county, shall be

continued and shall be known as the “Bluefield State Col-

lege.” The educational affairs of the Bluefield State College

shall be under the control, supervision and management of

the joint boards of education.

The rules and regulations made by the president and

faculty of said college for its general government, for the

admission of students thereto and the standards of scholar-

ship to be maintained therein shall be submitted to the joint

boards of education for their approval.

The negro board of education in conjunction with the

State board of education shall establish and maintain in

the Bluefield State College, in addition to the departments

already established, such other courses of study as may be

expedient and practicable and shall prescribe the conditions

for graduation therefrom and make rules for the conferring

of degrees and for issuing the proper diplomas to those who

complete such courses, as in the case of other State educa-

tional institutions. (1895, ¢. 40; 1908, ¢. 27, §§ 211-218;

1919, ¢. 2, §151; Code 1923, c. 45, §151; 1931, ¢. 7; 1933,

Ex. Sess., c. 12; 1943, ¢. 80.)

26a

From Plaintiff’s Exhibit B

HANDBOOK FOR

MEN AND WoMEN

STuDENTs

[State of West Virginia emblem]

BuverFiIELp State CouLece

BLUEFIELD, WEST VIRGINIA

1967 - 1968

1968 - 1969

GENERAL PoLicies AND REGULATIONS

Conduct

Bluefield State College expects of every student decorous,

sober, and upright conduct, A student is subject to the col-

lege rules and regulations as long as he is officially enrolled,

whether he be on or off the campus. Any action on the part

of a student which fails to show respect for good order, for

moral actions, for personal integrity, for the rights of oth-

ers, or for the care of property shall be cause for discipli-

nary action against the offender.

A student charged with a misdeineanor or a felony is

automatically suspended from the college when the charge

is made. He may not apply for readmission to this college,

nor have his credits transferred elsewhere, until his case

has been cleared through the courts.

No person charged with a misdemeanor or a felony shall

be considered for admission to a regular or summer term

of the college until such time as his case has been cleared

through the courts,

27a

A non-resident student who is suspended or dismissed

for any reason whatsoever shall immediately leave the col- |

lege campus. A resident student who is suspended or dis-

missed for any reason whatsoever shall be given a reason-

able amount of time in which to leave the college campus.

A suspended or dismissed student may not visit on the

college campus, nor atiend any coilege events or activities.

Hazing in any form is prohibited. The term “hazing” as

here used is defined as: to subject to cruel horseplay; to

harass or punish by the imposition of excessively heavy or

disagreeable tasks; to frighten, scold, beat, or annoy by

playing abusive tricks upon individuals.

Possession and/or consumption of alcoholic beverages

and narcotics within the confines of the college campus is

contrary to state and college regulations.

Possession and/or use of firearms, explosives, or any

deadly weapon within the confines of the college campus is

contrary to state and college regulations.

Gambling, fighting, and the use of profane or vulgar lan-

guage within the confines of the college campus are contrary

to state and college regulations.

Solicitation and selling of products and articles upon a

state college campus is prohibited except when done by

organizations, groups, or individuals directly connected

with the college, and with approval of the college president.

Students will park their cars only in those locations

designated as student parking areas.

Procedure Re: Conduct

1. Reports of irresponsible actions go to the Dean of

Men and Dean of Wemen from those who observe

them, with a copy to the President. The Dean of

28a

Men or Dean of Women.will file a report of the inci-

dent, on forms that have been provided, to the Presi-

dent—including action taken.

. If the action taken is not considered sufficient, it will

be referred to the Student Affairs Committee, and

Dean of Men or Dean of Women will be instructed

to take further action, according to the decision of

the Committee.

. If reports come directly to the Committee, the mzt-

ter will be considered and the Dean of Men or Dean

of Women will be instructed as to the action that is

to be taken, with a copy of such instruction going to

the President.

. Recommendations for suspension or dismissal will

be referred to the president.

. Recommendations of the Committee are subject to

review by the President.

. Recommendations of the Committee to the Dean of

Men or Dean of Women will be considered manda-

tory unless said Dean of Men or Dean of Women

_ ask to appear before the Committee for reconsidera-

tion.

. The Dean of Men or Dean of Women will state the

action as recommended by the Committee in writing

to the student, except in case of dismissal or suspen-

sion, with a copy going to the parent, to the Presi-

dent’s Office and the Registrar’s Office. If such action

involves collection of refund of fees, the Business

10.

11.

12.

29a

Any student whose actions have been reported as

not in the best interests of the College and whose

actions warrant punitive measures may appear be-

fore the Dean of Men, Dean of Women, the Student

Affairs Committee, or the President upon request.

The Student Affairs Committee will notify the stu-

dent of when it will meet to consider a problem in

which the student is involved. The student may have

an audience with the Committee if he wishes.

It is assumed that teachers can handle problems aris-

ing within their classrovm. In event that one is of

a nature serious enough, or is of such consequence

that it cannot be reasonably handled by the classroom

teacher, the situation should be reported and han-

dled according to the above-described procedure.

Directors of dormitories and the Student Union will

have full authority to regulate behavior and prohibit

use of such facilities, with the approval of the Presi-

dent, if rules and regulations are not followed. In

lieu of use of this authority they will have the option

of requesting the Dean of Men, the Dean of Women

or the Student Affairs Committee to take action.

Social probation may be placed upon students with

the restrictions imposed being defined by the Stu-

dents Affairs Committee. The College will not give

consideration for financial aid to a student on social

probation, and participation in or attendance of

social activities will not be permitted. Students on

social probation are not permitted to hold offices in

organizations, or to ‘participate in any type of extra-

curricular activity.

30a

Letter Sent to Each Petitioner

(Letterhead of Bluefield State College, Bluefield,

West Virginia 24701)

October 16, 1967

Mr. Alonzo Saunders

401 Park Street

Bluefield, West Virginia 24701

Dear Mr. Saunders:

On October 14 at Mitchell Stadium, Bluefield, West Vir-

ginia, you engaged in the activities of a group which

became riotous and menanced [sic] the well-being of spec-

tators and a College official. Because of this action, you

are immediately suspended indefinitely from this College.

If you wish, you may appeal this decision to the College

Faculty Committee on Student Affairs by writing a letter

to Mr. Donald Craft, Chairman of the Committee. You

should see the Business Manager concerning the reimburse-

ment of any fees due you.

While suspended from this College, you will not be per-

mitted on the grounds or in the buildings.

Sincerely yours,

WENDELL G. Harpway

Wendell G. Hardway

WGH/vv President

Copies: Parents

Mr. J. I. Turner, Dean of Men

Mr. Donald Craft

Veteran’s Administration, Regional Office,

502 Eighth Street, Huntington, W. Va.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.