# Petition for a Writ of Certiorari — Barker v. Hardway

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0481%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1969
- **Citation:** 394 U.S. 905

## Text

Be LISRARY

UPREME COURT. UU. & Office-Supreme Court, U.S.
saaenpieanttonnennemmnnmemnnninentnmimmtaitaaaalls T)

/
_—_ JAN3 1969

| Supreme Court of the ited, Staten. ournK

October Term, 1968

No. 9.01

te
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

10

15

20

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

iv
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

vi

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

<P

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.

x

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; |

3

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

PN canteen i Pte SF wel isch

Weg ALO ARI GE Hai

4

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

-
5

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

6

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

7

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-

Ot! BE nate 2 cpap

EE Le

PENAL Sia ie pipshogg

8

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.

9

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

10

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).

11

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.

12

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

13

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).

14

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 "

15

I.

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

16

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

ee

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

17

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,

18

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

19

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

20

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

21

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
ig Bae RAAB BME DRT a pe, Sig Pe inictg et AL ad 4. OV LS: eG ah Siierxsas. « «Chel * =

23

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

25

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

26

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

27

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

LEESON HER ed Sa A eS Cee

! pl LYRE DELL LL

BB PERE ITFint

— 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

30

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-

ee

LLG ELLE ITE

Pe Pe

Syl cE

I Aaa EW Ae NRO TINO BES UN EOE

‘ ne Sais ees weed |S Nie Le gees CoC Seana. ane Re oS QAR

31

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

ee aa eee

Be RIE Rah Ra he male

POONA LES ibe ABA E Aig 1, BOMEM,

SR NARA NANG xe

~ Hic rhe ie th a ante te das he a Ninian aan il WN a Bi Oe oe ee Ee ea ee

32

“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

33

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

SICA) abe tee

ERAN ID iit nid pases! By, One a be Ne ow

a

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
-

35

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-

36

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

37

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

38

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

A

7, Aira ire ec i PSA SEM RANT

la

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.

2a

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

3a

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,
v.

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

4a

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

I.

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.

6a

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

Ta

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.

PRONG A ERE) FAP OHM TNR aE OM eA

eae

chat thlte otalis Vie heel oat: Sart

Sa

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-

9a

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.

II

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
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.

2
BA Aner ere mittee ae NR a ,

Tr RL :

Sd aA OA 4 ee +

ee. ee ee ee ee ee

se

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

Il

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.

IV

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
I

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.

II

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

IV

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
. Offiee should also receive a copy. ©

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.

:
2
:
Ce
4
3
al
eo
3
=

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0481%3A1. Public record. Not legal advice.