Petition for Writ of Certiorari — Boykins v. Fairfield Board of Education
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IN THE
Supreme Court nf the United States
OcToBER Ter, 1974
“73-2015
Grorcr Rosert Boyxrys, et al.,
Petitioners,
v.
FarrFieELtp Boarp or Epvucation, et al.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
JACK GREENBERG
James M. Nasrit, III
Cartes STEPHEN RaLston
Cuartes E. Wriuiams, IIT
10 Columbus Circle
New York, New York 10019
Demetrivs C. NewrTon
2121 8th Avenue, North
Birmingham, Alabama 35203
Attorneys for Petitioners
TABLE OF CONTENTS
Opinion Below
Jurisdiction
Question Presented
Constitutional Provision Involved
Statement
Reasons Why The Writ Should Be Granted ................ 9
Certiorari Should Be Granted Because the Issue
of the Due Process Rights of Public School Pupils
in Disciplinary Hearings Is of National Impor-
tance and Because the Decision of the Fifth Circuit
Conflicts With Those of This Court and Other
Federal Courts 9
A. The Question of the Requirements of Due Pro-
cess in School Disciplinary Proceedings Is of
Great National Importance 9
B. Certiorari Should Be Granted to Resolve the
Conflict Between Decisions of This Court and
the Decision Below 12
C. Certiorari Should Be Granted to Resolve the
Conflict Between the Decision Below and Deci-
sions of Another Circuit and of District Courts
in Other Circuits 15
Conciusion 16
APPENDIX —
PAGE
Cases:
Bell v. Burson, 402 U.S. 535 (1971) 14
Betts v. Bd. of Ed. of City of Chicago, 466 F.2d 629
(7th Cir. 1972) 10
Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971) ............ 10
Black Coalition v. Portland School District No. 1, 484
F.2d 1040 (9th Cir. 1973) 15
Board of School Commissioners v. Jacobs, No. 73-1347
(cert. granted, June 3, 1974) 12
Boykins v. Fairfield Bd. of Ed., 399 F.2d 11 (5th Cir.
1968) ; 2
Boykins v. Fairfield Bd. of Ed., 421 F.2d 1330 (5th Cir.
1970) 3
Boykins v. Fairfield Bd. of Ed., 429 F.2d 1234 (5th Cir.
1970) 3
Boykins v. Fairfield Bd. of Ed., 446 F.2d 973 (5th Cir.
1971) 3
Boykins v. Fairfield Bd. of Ed., 457 F.2d 1091 (5th Cir.
1972) 3
Brown v. Board of Education, 347 U.S. 483 (1954) _.... 10
DeJesus v. Penberthy, 344 F. Supp. 70 (D. Conn. 1972) 15
Dixon v. Alabama State Board of Education, 294 F.2d
150 (5th Cir. 1961) 4, 5,9
Gagnon v. Scarpelli, 411 U.S. 778 (1973) 14
Goldberg v. Kelly, 397 U.S. 254 (1970) 13, 14
Goss v. Lopez, No. 73-898 (prob. juris. noted, Feb. 19,
1974) 12
Hawkins v. Coleman —— F. Supp. —— (Civ. Action
No. 3-5774-B, June 5, 1974) 11
iii
‘In re Gault, 387 U.S. 1 (1967)
Karp v. Beckeu, 477 F.2d 171 (9th Cir. 1973) _........
Madera v. Bd of Ed. of City of New York, 386 F.2d
778 (2nd Cir. 1967) ....
Mills v. Board of Ed. of District of Columbia, 348 F.
Supp. 866 (D.D.C. 1972)
Morrissey v. Brewer, 408 U.S. 471 (1972)
People v. Overton, 20 N.Y.2d 360, 283 N.Y.S.2d 22, 229
N.E.2d 596 (1967), vacated and remanded, 393 U.S.
85 (1968), reinstated, 24 N.Y.2d 523, 301 N.Y.S.2d
479, 240 N.E.2d 366 (1966)
Tinker v. Des Moines 1. Jependent School Dist., 393
U.S. 503 (1969) .. ....
United States v. Jefferson County Bd. of Ed., 372 F.2d
836 (5th Cir. 1966), aff’d en banc, 380 F.2d 385 ........
Wave v. Estes, 328 F. Supp. 657 (N.D. Tex. 1971), aff'd,
458 F.2d 1360 (5th Cir. 1972)
Wolff v. McDonneil, US. ——, 42 U.S.L. Week
5191 (1974)
Wood v. Sirickland, No. 73-1285 (cert. granted, April
15, 1974)
Statute:
Code of Alabama, Title 52, 44579 and 598 _..................
Other Authorities:
Bell, Race and School Suspensions in Dallas, 62 Inte-
grated Education 66 (March-April 1973) ..................
10
10
14
iv
PAGE
Clarke, Race and Suspensions in New Orleans, 63 Inte-
grated Education 30 (May-June, 1973)
Developments in the Law: Academic Freedom, 81
Harvarp Law Review 1045, (1968)
Goldstein, Reflections on Developing Trends in the Law
of Student Rights, 118 U. Pa. L. Rev. 612 (1970) ......
Goldstein, The Scope and Sources of School Board
Authority to Regulate Student Conduct and Status:
A Nonconstitutional Analysis, 117 U. Pa. L. Rev. 373
(1969)
Hudgins, Discipline of Secondary School Students and
Procedural Due Process: A Standard, 7 Wake
Forest L, Rev. 32 (1970)
The Student Pushout, Victim of Continued Resistance
To Desegregation (Southern Regional Council and
Robert F. Kennedy Memorial, 1973)
Wright, The Constitution on Campus, 22 Vann. L. Rev.
1027 (1969)
7 Wright, The New Word Is “Pushout”, 4 Race Relations
Reporter 8 (May 1973)
11
10
10
11
11
11
10
10
tb RO Nev APS Canis NE ABIES De
ie GAVln DD RIB a
ee dat ae Wants
IN THE
Supreme Court of the United States
Octoser TERM, 1974
No. 74-
Grorce Rosert Boykrns, et al.,
Petitioners,
v.
Famrretp Boarp or Epvucation, et al.
PETITION FOR A WRIT OF CERTIORARI TO THE
* UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Opinions Below
The opinion of the Court of Appeals is reported at
492 F.2d 697 and is reprinted in the Appendix to this
Petition, pp. 1la-17a. The opinions and orders of the dis-
trict court are unreported and are reprinted in the Ap-
pendix at pp. 18a-26a.
Jurisdiction
The judgment of the Court of Appeals was entered on
April 12, 1974. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1254(1).
Question Presented
Following a disturbance at a recently desegregated pub-
lic high school twenty-one students were suspended and
2
faced expulsion. At a hearing before the school board,
. hearsay, in the form of written statements, was introduced
and relied upon by the board. Eight of the twenty-one were
permanently expelled, although a number were shown to
have done no more than others who were readmitted. The
school board gave no reasons for singling out the eight, but
apparently expelled them becanse they were believed to be
leaders of the disturbance.
“Were the eight permanently expelled students denied due
process of law—including the right to cross-examine and
confront witnesses—as guaranteed by the Fourteenth
' Amendment?
oF
Constitutional Provision Involved
This matter involves Section 1 of the Fourteenth Amend-
_ ment to the Constitution of the United States, which pro-
vides:
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside,
No State shall make or enforce any law which shall
_ abridge the privileges and immunities of citizens of
the United States; nor shall any State deprive any
person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdic-
tion the equal protection of the laws.
Statement
This case commenced as a school desegregation suit in
1965.’ Petitioners are black school children who are mem-
1 Repo ted decisions relating to desegregation are as follows:
United States v. Jefferson County Bd. of Ed., 372 F.2d 836 (5th
Cir. 1966), aff'd en banc, 380 F.2d 385; Boykins v. Fairfield Bd.
—)
re eet
3
bers of the class on whose behalf it was filed. They seek
review of the decision of the Fifth Circuit which upheld
their permanent expulsion from the schools of the City of
Fairfield, Alabama. Following a remand in 1972, by the
Court of Appeals, a fina! plan for the desegr-gation of
the schools was put into effect by the district cvurt.
However, in the fall term of 1972, difficulties arose with
the implementation of the plan, which in turn resulted in
dissatisfaction on the part of black students at Fairfield
High School.? In late October and early November, 1972,
black studenis conducted a boycott of the school. Motions
were filed iu the district court seeking to correct problems
in implementing the desegregation plan and to reinstate
students suspended because of the boycott. On November
9, 1972, the district court ordered that the suspended stu-
dents be reinstated and set 2 hearing to review the prob-
lems that had given rise to the boycott. As part of its
order, the district court required the students to end the
boycott and return to class.
Nevertheless, difficulties persisted, On November 10,
1972, an incident occurred involving a black student and
a black faculty member.’ When other black students heard
~~
of Ed., 399 F.2d 11 (5th Cir. 1958); Boykins v. Fairfield Bd. of
Ed., 421 F.2d 1330 (5th Cir. 1970); Boykins v. Fairfield Bd. of
Ed., 429 F.2d 1234 (5th Cir. 1970); Boykins v. Fairfield Bd. of
Ed., 446 F.2d 973 (5th Cir. 1971); Boykins v. Fairfield Bd. of
Ed., 457 F.2d 1091 (5th Cir. 1972). As Jedge Godbol#*oted in
dissent, the desegregation of the school district “has been a fruitful ©
source of litigation” because of the resistance to desegregation. 492
F.2d at 703, Appendix, p. 9a.
? The problems included the alleged inability of black students
to participate as cheerleaders or as members of certain clubs, the
administration of discipline, particularly as it regarded tardiness,
and the lack of a Black Studies program.
* The student was Clarence Young, one of those subsequently
expelled.
4
of the incident, a number of them ieft their classes, As
a result, the principal decided to close the school and send
all students home. Subsequent}: notices were sent to
twenty-one students informing them that they had been
suspended for their actions of November 10 and would
receive notices later as to Board of Education conducted
hearings to decide whether they woald be reinstated.
Before the hearings were held, a motion was filed in
the district court challenging the suspension of the twenty-
one students. Decision on the motion was deferred pend-
ing the outcome of the administrative hearings, which were
held on November 25, 1972. (The transcript of the hear-
ing was introduced in district court; record references
herein are to the Appendix filed in the Court of Appeals,
“A 9)
As the hearing commenced, the board’s attorney ex-
plained the procedure. He began by reading an excerpt
from Dizon v. Alabama State Board of Education, 294
F.2d 150 (5th Cir. 1961), including language to the effect
that there was no right to cross-examination and that
written testimony could be presented (A. 53). The attor-
ney then continued with the statement quoted by the Court
of Appeals at 492 F.2d 700. (See Appendix, infra at 4a-
5a.) He said that the “School Administrator” presenting
the evidence could be questioned by the school board and
cross-examined by the attorney representing the children.‘
However, as it developed, this purported right to cross-
examine was illusory. Each student charged was called in
with his or her parent and informed of the charges. The
principal presented the evidence against the student, but
‘Shortly thereafter, during a preliminary discussion regarding
another procedural issue, the school board attorney stated: *“You
a ar . . . any person who has presented evidence”
5
with two exceptions’ it was hearsay and consisted of
written statements by teachers who were not available for
cross-examination. In most instances the statement was
limited to an assertion that the pupil either had not re-
ported for class or had left class without permission.
While no overall objection was made to the introduction
of this hearsay, on two occasions objections were made to
specific testimony as hearsay (A. 73; 194). In any event,
both the district court and the Court of Appeals ruled
on and upheld the use of hearsay (Appendix, 5a-7a; 21a).
And, as the appeals court noted in rejecting petitioners’
claim, it had been the rule since 1961 in the circuit that
hearsay in the form of written statements could be used
under the decision in Dixon relied upou by the sehvoi board
attorney.
After the principal had presented evidence each stu-
dent was allowed to present his or her story as to what
happened, although two cf the expelled students were not
present when their names were called at the school board
hearing. It was clear that they had been waiting outside,
but left sometime during the five-hour proceeding because
they were not allowed to use the bathroom. Since they
had no transportation, they had to walk home and had not
returned by the end of the hearing (A. 338-339). Thus,
the only testimony against them was hearsay in the form
of a written statement from their first-period teacher al-’
leging merely that they had left her class without permis-
sion.
Of the 21 students accused, four were readmitted im-
mediately as of November 27, 1972; eight others were re-
admitted one week later as of December 4; one siudent
was suspended for the remainder of the semester; and eight
5 Clarence Young and Beverly Claiborne.
6
others, petitioners here, were expelled permanently. Since
the school board did not state the reasons for its decisions,
it gave no explanation for the disparate results. As Judge
Godbold noted in dissent (492 F.2d at 705, Appendix, pp.
13a-14a), the only apparent basis for the expulsions was
that the school board concluded that the eight were leaders
in the disturbance. However, as he also correctly pointed
out, there was nothing introduced at the board hearing
that showed that most of those expelled did anything more
than numerons other students who were readmitted (Ibid.)*®
Indeed, given the evidence concerning the eight students
selected for expulsion and the lack of explanation for their
being so selected, Judge Godbold’s conclusion that the pen-
alties were arbitrarily severe because of their being based
upon matters outside the record (Appendix, 15a) is un-
avoidable. Thus, Darlene Phelps and Cathy Scott testified
that they had been given permission to leave their class
(this testimony was corroborated by another student), con-
trary to the written statement of their teacher. They fur-
ther denied doing anything disruptive. To the contrary,
they had attempted to find a representative of the Com-
munity Relations Service of the United States Department
of Justice, who had been sent to the school, to get his help
in calming the situation.
Jacques Guest and Linda Meadows testified that they
had left class because they had heard that another black
student was in trouble. Guest admitted that he went to one
class and told students that they should leave, but said it
was the teacher who actually dismissed the class (A.
203-04). Miss Meadows was also accused in a written
* For example, the charge and evidence against Anthony Wil-
liams was exactly the same as against Cathy Scott and Darlene
Phelps, i.e., leaving Mrs. Sexton’s class without permission (A. 329-
330; see n. 18, infra). Nevertheless, Williams was readmitted
to school and Phelps and Scott were permanently expelled.
7
statement from one of the teachers that when he told her
to leave the classroom she cursed him. Miss Meadows, how-
ever, testified that she did not actually go into his class-
room (although she was standing outside in the hall) and
denied using profanity. The teacher himself did not testify
(A. 131-32).
Beverly Claiborne was presented with a written charge
that she failed to report to her first-period class. The pzin-
cipal also testified, based on his own knowledge, that when
Miss Claiborne was told that she would be expelled she
responded with profanity. Miss Claiborne, however, testi-
fied that she had in fact reported to her first-period class
and had been excused by the teacher (A. 121.)" With regard
to the profanity, she said that she made a statement to
herself and did not expect it to be heard (A. 127).
Clarence Young was the student who had the altercation
with a teacher that precipitated the disturbance. He had
gotten into an argument over whether the teacher should
apologize to a girl because he had accidentally hit her when
he opened a door. Words were exchanged that included
some insults by Young, and he was taken into the prin-
cipal’s office. He was there when the students began to
leave their classes. i
John Hall and Beverly Law were the two students who
had left the hearing before their names were called. The
only evidence was written statements that they had left
class without permission; there was no testimony that they
had gone to other classes or had done anything more than
many of those readmitted.
The district court, in an order dated December 14, 1972,
held that due process had been complied with and that the
7 Another student, Beverly Williams was also accused of leaving
the same class without permission. She also testified that she had
been excused (A. 106). She was readmitted.
8
action of the school board was justified (Appendix, pp.
18a-23a).* A timely Notice of Appeal was filed on Decem-
ber 2, 1972.
In the meantime, the expelled students made efforts to
continue their education. A number of them enrolled in
private parochial schools at which they paid for tuition
and textbooks. Four of the students attempted in early
January, 1973, to enroll in public schools in neighboring
districts in order to complete their education. They were
informed, however, that they could not be accepted unless
the schools received from the superintendent of the Fair-
field schools approval of their enrollment. When they re-
quested such approval, the superintendent refused on the
ground that they had been expelled from the Fairfield
school system.
Another motion for emergency relief was filed in the
district court on February 21, bringing these facts to the
court’s attention and requesting an order permitting the
students to be allowed to continue their public education
in some way. A hearing was held on the motion on March
2, 1973, and the motion was denied the same day by the
district court (Appendix, pp. 24a-26a). A notice of appeal
was filed with regard to that order, and that matter was
consolidated with the appeal already pending in the Fifth
Circuit.
On April 12, 1974, the Court of Appeals affirmed the
decision of the district court, over a dissent from Judge
Godbold. All three judges, however, concurred in reject-
§ The Court also, in an order dated November 27, 1972, ruled on
the plaintiffs’ motion to correct the administration of the school
desegregation plan. It granted relief with regard to monitoring
transfers of white students out of certain schools in the district,
the correcting of imbalances in the racial makeup of faculty at one
school, and the ending of three all-black classes at another, but
denied all other relief. This order is not at issue in this proceeding.
9
ing petitioners’ argument that they were entitled to con-
frontation and cross-examination of the witnesses against
them; rather, the school board could rely on written state-
ments by teachers presented to it by the principal of the
school,
As of the date of filing this petition, one of the students
(Jacques Guest) remains out of school and is without a
high school diploma. The other seven were able to finish
high school, some at parochial schools, and two by going
to live with relatives in Mississippi. At least one student
was admitted to college. All eight retain on their records,
however, that they were permanently expelled from the
schools of Fairfield. Further, the school board is free to
continue to impose discipline upon other members of the
class pursuant to the procedures upheld by the Court of
Appeals. sss
REASONS WHY THE WRIT SHOULD BE GRANTED
Certiorari Should Be Granted Because the Issue of
the Due Process Rights of Public School Pupils in
Disciplinary Hearings Is of National Importance and
Because the Decision of the Fifth Circuit Conflicts
With Those of This Court and Other Federal Courts.
A. The Question of the Requirements of Due Process in
School Disciplinary Pr ings Is of Great National
Importance.
In recent years the lower federal courts have dealt with
increasing frequency with questions relating to school dis-
cipline procedures. Beginning with Dizon v. Alabama State
Board of Education, 294 F.2d 150 (5th Cir. 1961), the courts
of appeals have attempted to apply, in school cases, deci-
10
sions of this Court dealing with procedural rights in other
areas.®
‘The rapid increase in the amount of litigation is a reflec-
tion of the growing awareness and concern for the legal
rights of students generally. Stimulated by this Court’s
decisions in Brown v. Board of Education, 347 U.S. 483
(1954), and Tinker v. Des Moines Independent School Dist.,
393 U.S. 503 (1969), the area of concern has encompassed
issues such as the extent of the rights to free speech, press,
and association,” the legality of searches and seizures,"
hair and dress regulations,* and corporal punishment.”
See, Developments in the Law: Academic Freedom, 81
Harvarp Law Review 1045, 1128-1159 (1968); Goldstein,
Reflections on Developing Treads in the Law of Student
Rights, 118 U. Pa. L. Rev. 412 (1970); Wright, The New
Word Is “Pushout”, 4 Pace Relations Reporter 8 (May
1973); Wright The Coustitution on Campus, 22 Vann. L.
Rev. 1027 (1969).
With regard co student discipline in particular, concern
with what nas been termed the “pushout” problem has
focused «n the disproportionate number of black stndents
being subjected to severe punishment, particularly in school
systems in the process of desegregating. See, ¢.g., Bell,
Race and School Suspensions in Dallas, 62 Integrated Edu-
* See, e.g., Madera v. Board of Ed. of City of New York, 386
F.2d 778 (2nd Cir. 1967) ; Williams v. Dade County School Board,
441 F.2d 299 (5th Cir. 1971) ; Betts v. Bd. of Ed. of City of Chi-
cago, 466 F.2d 629 (7th Cir. 1972).
1° E.g., Karp v. Becken, 477 F.2d 171 (9th Cir. 1973).
1 E.g., People v. Overton, 20 N.Y.2d 360, 283 N.S.Y.2d 22, 229
N.E.2d 596 (1967), vocated and remanded, 393 U.S. 85 (1968),
“00 24 N.Y.2a 523, 301 N.Y.S.2d 479, 249 N.E.2d 366
12 E.g., Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971).
13 E.g., Ware v. Estes, 328 F. Supp. 657 (N.D. Tex. 1971), aff'd,
458 F.2d 1360 (5th Cir. 1972).
cation 66 (March-April 1973) ;** Clarke, Race and Suspen-
sions in New Orleans, 63 Integrated Education 30 (May-
June, 1973); The Student Pushout, Victim of Continued
Resistance to Desegregation (Southern Regional Council
and Robert F. Kennedy Memorial, 1973)."* Recently, the
Department of Health, Education, and Welfare, has begun
a comprehensive investigation into this question as a result
of the accumulation of evidence indicating a relationship
between discipline and desegregation.
To reduce the opportunity for racial discrimination, the
procedures used for pupil discipline must be adequate to
ensure that proper and non-arbitrary decisions are mede,
Thus, while much of the discussion of student discipline
to date has dealt with procedural questions as such," the
relationship between those issues and the substantive bases
for imposing discipline should not be overlooked.
14In an opinion as yet unreported, the United States District
Court for the Northern District of Texas has found “white institu-
tional racism” in the operation of the school discipline system in
Dallas because of the disproportic.nate number of black students
subjected to harsh discipline. Hawkins v. Coleman, —— F. Supp.
(Civ. Action No. 3-5774-B, June 5, 1974). Thus in 1973-74,
while blacks were 40.9% of the students, they accounted for 59.4%
of the suspensions. Moreover, blacks were suspended for signifi-
eantly longer periods than were whites.
15 According to The Student Pushout, 71% of the pupils expelled
or suspended in Dade County, Florida, in 1972 were black; in the
Charlotte-Mecklenburg County system, suspensions rose from 1,544
in 1968-69 to 6,652 in 1970-71, and declined to 6,201 in 1971-72.
The vast majority of those suspended were blacks. Similarly, while
25 blacks and 11 whites were expelled in 1968-69, 94 blacks and 14
whites were expelled in 1971-72 (The Student Pushout, pp. 4-5).
A study prepared by the Office of Civil Rights of the Department
of Health, Edueation, and Welfare, indicates that the expulsion
rate nationwide for black students during the 1970-71 school year
was three times that of non-minority students (Jd. at pp. 5-6).
16 See, e.g., Goldstein, The Scope and Sources of School Board
Authority to Regulate Student Conduct and Status: A Nonconstt-
tutional Analysis, 117 U. Pa. L. Rev. 373 (1969) ; Hudgins, Discs-
pline of Secondary School Students and Procedural Due Process:
A Standard, 7 Wake Forest L. Rev. 32 (1970).
12
To date, this Court has not 2ddressed itself to the ques-
tion of the procedural rights of students. It has recognized
the importance of the issue, however, by its grant of review
in two cases to be argued during the October 1974 Term.”
Petitioners urge that this case presents, as will be dis-
cussed below, additional issues of great importance that
are not raised in the other cases before the Court. There-
fore, this case is an appropriate one for a grant of cer-
tiorari.
B. Certiorari Should Be Granted to Resolve the Conflict
Between Decisions of This Court and the Decision
Below.
It is clear that the school board, in order to decide both
whether to impose any discipline and what discipline was
appropriate, had to resolve disputed questions of fact. For
example, in the case of Cathy Scott and Darlene Phelps
it had to determine whether the teacher had or had not
given permission to leave, or if the teacher had said
something that might have been interpreted as giving
permission. Depending on how the facts were resolved,
the board might have decided to impose no discipline or
a lesser punishment than permanent expulsion. To have
decided on the harshest punishment possible, the board
must either have concluded that the teacher had not given
permission or have decided, on some ground not pre-
sented at the hearing, that the two students were leaders
of the disruption.
Of course, the only basis for concluding that no per-
mission was given was hearsay in the form of the signed
17 Goss v. Lopez, No. 73-898 (prob. juris. noted, Feb. 19, 1974) ;
Wood v. Strickland, No. 73-1285 (cert. granted, April 15, 1974) ;
See also, Board of School Commissioners v. Jacobs, No. 73-1347
(cert. granted, June 3, 1974).
13
statement by the teacher. The teacher was not present
to be questioned either by counsel for the students or by
the school board itself.
The court below rejected petitioners’ argument that this
Court’s decisions in Morrissey v. Brewer, 408 U.S. 471
(1972) and Goldberg v. Kelly, 397 U.S. 254 (1970), re-
quired “confrontation and cross-examination of witnesses,
especially where severe punishments are meted out on
disputed facts.” 492 F.2d at 701. Although the court found
the argument “seductive,” it concluded that “it will not
do” to apply those protections to school disciplinary pro-
ceedings, because such proceedings were “disparate” from
parole and welfare revocation hearings and a body of lay-
men could not be required to apply strict rules of evi-
dence. 492 F.2d at 701-702; Appendix, pp. 5a-7a.
In recent years this Court has handed down a series of
decisions that establish procedural rights when a govern-
ment agency acts to deprive a person of a benefit. In ad-
dition to Morrissey and Goidberg, they include: In re
18 The entire testimony was as follows:
Mr. Sweeney: What evidence do you have?
Mr. Turner: A signed statement from her teacher saying
she left class without her permission.
Mr. Sweeney: Who is the teacher?
Mr. Turner: Mrs. Sexton, first period history.
Mr. Sweeney: What does the statement say?
Mr. Turner: It says that Darlene Phelps left class without
permission on Friday, November the 10th, 1972 (A. 288.)
e* « *«
Mr. Sweeney: Give us the details that support this.
Mr. Turner: Cathy was in the first period class of Mrs. Sex-
ton and left that class without permission.of the teacher.
Mr. Newton: Do you have a written statement from Mrs.
Sexton to that effect?
J Mr. Turner: Yes. (A. 303.)
14
Gault, 387 U.S. 1 (1967) (juvenile court) ;* Bell v. Burson,
402 U.S... 535 (1971) (automobile license revocation) ;
Gagnon v. Scarpelli, 411 U.S. 778 (1973) (probation re-
vocation); Wolff v. McDonnell, —— U.S. ——, 42 U.S.L.
Week 5191 (1974) (prison discipline). This Conrt has 1ec-
¢gnized, in the words of Goldberg, that, “in almost every
setting where important decisions turn on questions of
fact, due process requires an opportunity to confront and
cross-examine adverse witnesses.” 397 U.S. at 269.
Only in Wolff v. McDonnell, did this Court find an ex-
ception to the general rule. Wolff makes it clear, however,
that the decision is based on the inherent dangers that
exist in prison society and on the fact that the deprivation
imposed as a result of discipline was not that serious. Thus,
the Court would not apply “procedural rules designed for
free citizens in an open society.” 42 U.S.L. Week at 5197.
The requirement of confrontation and cross-examination,
of course, is but one protection against decisions that de-
prive persons of benefits arbitrarily. If a school board
does not, because it cannot, fairly resolve disputed factual
issues, and if it can impose severe discipline on the basis
of evidence that cannot be challenged because the accuser
is absent, then it can and will act arbitrarily.
On the other hand, the basis for the school board’s
actions in this case might have been either a conclusion that
those expelled were leaders, or some unarticulated ad hoc
determination that they had done something warranting
more severe punishment. As Judge Godbold pointed out,
in most instances the evidence introduced showed that they
19 It is ironic that the petitioners would have been better off, in
some respects, in juvenile court both because of the procedures that
would have been afforded and because even if they had been adjudi-
cated delinquent they would have been entitled, under Alabama
law, to an education. See, Code of Alabama, Title 52, §§ 579 and
598.
\
.
a
15
had done nothing more than others who were readmitted.
Needless to say, such arbitrariness would be a violation
of due process and could only be protected against by the
imposition of adequate procedural safeguards. Further, by
requiring that proper procedures be followed, the federal
courts will not be required to act as boards of review of
school discipline proceedings. It is one thing, a matter of
perhaps considerable burden to the courts, to review myriad
disciplinary hearings. It is another to set standards of fair-
ness and due process by which the hearings are to be con-
ducted. F
This case, therefore, presents squarely an issue not yet
resolved by this Court, whether pupils in public schools are
to be afforded the same protections against arbitrary
actions as are ether “free citizens” or whether they are to
be dealt with as if the school were a prison. In light of
the general importance of that question as demonstrated
above, the petition should be granted to resolve the appar-
ent conflict of the decision below with the decisions of this
Court.
C. Certiorari Should Be Granted to Resolve the Conflict
Between the Decision Below and Decisions of Another
Circuit and of District Courts in Other Circuits.
Finally, the Court of App .ls for the Ninth Circuit has
held that it was a denial of due process to expel students
without a hearing at which they could “cross-examine ad-
verse witnesses.” Black Coalition v. Portland School Dis-
trict No. 1, 484 F.2d 1040, 1045 (9th Cir. 1973). District
Courts in two other circuits have made similar rulings.
DeJesus v. Penberthy, 344 F. Supp. 70 (D. Conn. 1972);
Mills v. Board of Ed. of District of Cotwmbia, 348 F. Supp.
866 (D.D.C. 1972). Certiorari should therefore be granted
to resolve these conflicts.
16
CONCLUSION
For the foregoing reasons, the petition for writ of certi-
orari should be granted.
Respectfully submitted,
Jack GREENBERG
James M. Nasart, IIT
Cuartes StepHen Ratston
Cuarntes E. WuuiMs, III
10 Columbus Circle
New York, New York 10019
Demetrius C. NewrTon
2121 8th Avenue, North
, Birmingham, Alabama 35203
Attorneys for Petitioners
Decision of Fifth Circuit, April 12, 1974
BOYKINS v. FAIRFIELD BOARD OF EDUCATION
GEE, Circuit Judge:
As the Fairfield, Alabama, school case comes before us for
the seventh time,’ the great issues of segregation and integra-
tion which were, for our circuit, largely fought out on this
very field* have departed like the Captains and the Kings, to
be replaced by the petulance which this record reveals and the
spectre of resegregation by white flight from the school
system. As the trial court observed:
The Court has had many hearings in the Fairfield School
Case. When the hearings began there was a white majority
in the school system. There is now a black majority and
this majority is growing with every term and with every
court order. The number of students in the System is
dropping every year with the consequent loss of revenue.
The cooperation between the races apparently has disap-
peared. Picayunish claims are being made on the one hand
and vigorously contested on the other. If this System is to
survive this continued litigation must come to an end.
Many of the black students appear to have overlooked the
point that the object of attending Fairfield High is to
obtain an education and not merely to maintain a point of
which an issue may be made.
Appellants are Negro school children who are members of
the class who brought this suit originally. They complain of
the process by which nine Negro students were punished for
misconduct, of the severity of the punishment which some
received, and of the refusal of the district court to order the
school authorities to grant various demands which the Negro
1.
United States v. Jefferson County Bd. of Ed., 372 F.2d 836 (5th Cir.
1966), aff'd en banc, 380 F.2d 385; Boykins v. Fairfield Bd. of Ed.,
399 F.2d 11 (5th Cir. 1968); Boykins v. Fairfield Bd. of Ed., 421 F.2d
1330 (5th Cir. 1970); Boykins v. Fairfield Bd. of Ed., 429 F.2d 1234
(5th Cir. 1970); Boykins v. Fairfield Bd. of Ed., 446 F.2d 973 (5th
Cir. 1971); Boykins v. Fairfield Bd. of Ed., 457 F.2d 1091 (5th Cir.
1972).
2. See the landmark panel and en banc opinions at 372 F.2d 836
(1966) and 380 F.2d 385 (1967).
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BOYKINS v. FAIRFIELD BOARD OF EDUCATION
students had sought to enforce by the boycott which led
indirectly to their expulsion. We affirm.
Following the most recent remand of this case to the
district court, a final plan for the desegregation of the Fair-
field schools was put into effect. When school next com-
menced, however, Negro students conducted a boycott of the
school, seeking to enforce demands such as that the School
Board:
1. Prohibit the practice of requiring spring pre-registration
of classes although, as the court below found, all students,
Negro and white, were required to pre-register and no dis-
crimination was shown.
2. Prohibit school authorities from allowing white students
to leave campus for lunch since it was generally more conve-
nient for them to go home for lunch than for Negro students.
3. Prohibit the school from serving inferior food to Negro
students, although all students eat in the same two cafeterias.
4. Increase the time for lunch, and the time between
classes.
5. Order that more Negro students become cheerleaders
and members of the band, even though the present selection
process was found by the district court to involve no racial
discrimination.
6. Order more Negro students to become members of the
Pep Club even though membership is open to all students.
7. Require a Negro History Week, and a Black Studies
curriculum.
8. Require “sock hops” and school proms.
9. Change the school disciplinary policy which makes it a
school offense to be late for class an excessive number of
times.
10. Require the school to open the school doors before 7:30
each morning.
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BOYKINS v. FAIRFIELD BOARD OF EDUCATION
11. Order teachers at the Fairfield School System to re-
frain from using profanity.
12. Allow Negro students to attend dancing class without
paying the fee required of other students.
13. Require the school officials to distribute textbooks
which are in better condition.
This boycott, commenced in late October and carried over
into early November, resulted in the suspension of over 100
students, all but three of them Negro, from school. A series
of motions by counsel for plaintiffs followed, seeking enforce-
ment of such demands as the above and reinstatement of the
suspended students. On November 9, 1972, the court below
entered its order requiring the readmission of the suspended
students and setting a hearing on the motion seeking review
of the demands upon which the boycott had been based. The
ordered readmission was contingent upon termination of the
boycott, return to class by all students, and an end of disrup-
tive activities.
Most students returned to class the next day. Almost
immediately, however, the same sort of difficulties which had
plagued the school term recommenced. Clarence Young, one
of the students who was later expelled, intervened in a trivial
incident and undertook to instruct a Negro faculty member as
to the proprieties of his behavior. An altercation between
them followed. Young berated the instructor, using such
epithets as “Uncle Tom” and “half whitey.” He was taken to
the principal’s office, and word of the incident immediately
spread through the school. Various students, including the
other expellees, left class without permission. Some, urging
others to join them, went from classroom to classroom calling
for students to leave classes to participate in a meeting to
discuss what should be done to rescue Clarence Young. Many
students left class, the police were called, and attempts were
made to persuade the students to return to class without much
4a
BOYKINS v. FAIRFIELD BOARD OF EDUCATION
success. School was therefore closed in the middle of the
morning and all students sent home.
Twenty-one students were subsequently sent notices of sus-
pension from school for their participation in the disruptions
of November 10 and were also informed that individual hear-
ings would later be held by the Board of Education to decide
whether they should be reinstated. These hearings were held
on November 25, 1972. As a result of the hearings, four of
the students were immediately readmitted, eight were read-
mitted after a week’s further suspension, one was suspended
for the remainder of the semester, and eight were expelled.
The record indicates that, as a result of the expulsion, difficul-
ty was later encountered by the expelled students in obtaining
entrance to other public schools. As of a hearing held by the
district court in March of 1973, none of these students had
reapplied to the Fairfield School Board, so that what the
consequences of such a reapplication would have been are
unknown. However, at oral argument the court was advised
by counsel for plaintiffs that all but one of these students
were attending school somewhere as of that time.
The procedures which were followed in the hearing, and of
which complaint is here made, were outlined by counsel for
the Board as follows:
Let me ask you if this procedure will be agreeable. We
will call each student from outside into the conference room
with his parent or guardian. We will explain to the child
what he has been charged with, and ask him if it is clear in
his mind what school rules he has violated. If he has no
questions, we will then present the evidence against the
child to support the accusations. Having done that, we will
ask the student if he has anything to say to contradict the
charges that have been made against him, or the evidence
to support charges that have been made against him. After
that we will—I think the Board should ask the School
Administrator that is presenting the evidence any—and the
child—any questions that you think are relevant in order to
5a
BOYKINS v. FAIRFIELD BOARD OF EDUCATION
resolve any conflict. We're going to accord Mr. Newton the
privilege of cross-eyamination. It is not a right that he can
insist on, but we are showing him that courtesy. After the
Board, ufter the school and the child have presented what-
ever evicience they want, then we will excuse the child and
go on to the next student. Is that an agreeable process?
Each student was represented by the same counsel, Mr.
Demetrius C. Newton, and the only objection to the suggested
procedure voiced by him was a desire on his part to himself
determine and declare whether the student understood the
charge against him rather than have the student make and
state his determination of that matter.’ The suggested proce-
dures were uniformly followed in conducting the Board’s
hearings.
[1] Appellants principally complain that much of the evi-
dence upon which the expulsions were based consisted of what
was technically hearsay. This is undoubtedly correct. The
main witness against the students was the school principal,
Mr. Hershell Turner, who had investigated the charges
against the students and who presented the results of his
investigation of each incident to the Schoo! Board. In some
instances Turner had first-hand knowledge, and in others his
testimony was based on attendance records and other reports
which could likely have been qualified under exceptions to the
hearsay rule; but in main it consisted of reading or reciting
statements made by teachers in response to his inquiries.
As to this contention, appellants correctly concede that the
present rule of this circuit in school discipline cases affords
them no comfort. “(T]he student should be given the names
of the witnesses against him and an oral or written report on
the facts to which each witness testifies.” Dixon v. Alabama
State Board of Education, 294 F.2d 150, 159 (5th Cir. 1961).
They contend, however, that we should read the Supreme
3. In the event, the charges were of such a simple nature, e. g.,
. reviling the teacher before the class, or leaving class after having
been told not to do so, that no problem was presented.
6a
BOYKINS v. FAIRFIELD BOARD OF EDUCATION
Court's Goldberg‘ and Morrissey* decisions as expanding the
requirements of Dixon to add to them universal confrontation
and cross-examination of witnesses, especially where severe
punishments are meted out on disputed facts. We decline to
do so.
There is a seductive quality to the argument—advanced
here to justify the importation of technical rules of evidence
into administrative hearings conducted by laymen—that, since
a free public education is a thing of great value, comparable
to that of welfare sustenance or the curtailed liberty of a
parolee, the safeguards applicable to these should apply to it.
At argument appellants’ counsel, in response to questions,
opined. that a right to appointed counsel was probably also
existent. In this view we stand but a step away from the
application of the strictissimi juris due process requirements
of criminal trials to high school disciplinary processes. And if
to high school, why not to elementary school? It will not do.
{2] The requirements of due process are sufficiently flexi-
ble to accommodate themselves to various persons, interests
and.tribunals without reduction to a stereotype and hence to
absurdity.£ As Mr. Justice Stewart, writing for the Court,
stated in Cafeteria Workers v. McElroy, 367 U.S. 886, at 895,
81 S.Ct. 1743, at 1748, 6 L.Ed.2d 1230 (1961):
The very’ nature of due process negates any concept of
inflexible procedures universally applicable to every imagi-
nable situation. [citations omitted] “‘[Djue process,’ unlike
some legal rules, is not a technical conception with a fixed
content unrelated to time, place and circumstances.” It is
4. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287
(1970).
5. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484
(1972).
6. “{T)he standards of procedural due process are not wooden abso-
lutes. The sufficiency of procedures employed in any particular
situation must be judged in the light of the parties, the subject
matter and the circumstances involved.” Ferguson v. Thomas, 430
F.2d 852, 856 (5th Cir. 1970).
~
7a
BOYKINS v. FAIRFIELD BOARD OF EDUCATION
“compounded of history, reason, the past course of decisions
.” Joint Anti-Fascist Refugee Committee v.
McGrath, 341 U.S. 123, 162-163, 71 S.Ct. 624, 643, 95 L.Ed.
817, 848, 849 (concurring opinion).
Basic fairness and integrity of the fact-finding process are the
guiding stars. Important as they are, the rights at stake in a
school disciplinary hearing may be fairly determined upon the
“hearsay” evidence of school administrators charged with the
duty of investigating the incidents. We decline to place upon
a board of laymen the duty of observing and applying the
common-law rules of evidence.
Indeed it is plain that Morrissey does not go so far as
appellants would have us take the Fairfield Board of Educa-
tion. The right of confrontation and cross-examination there
discerned in the parolee is not absolute but may be denied for
good cause, and the receipt of evidence which would be barred
by the hearsay rule is specifically suggested. Morrissey, supra
408 U.S. note 5, at 489. It well may be that all Morrissey
contemplates on this head is precisely what appellants were
accorded: a right to confront and cross-examine such adverse
witnesses as appear, without the technical strictures upon
their testimony of the hearsay rule. But whether or no, we
reject the attempted analogy of student discipline to parole
revocation or the termination of welfare benefits. Cf. Stu-
dent Discipline, 45 F.R.D. 133, at 142. The situations treated
are simply too disparate to permit an uncritical transfer of
specific due process requirements from one to the other.
{3,4] Complaint is aiso made of the severity of the punish-
ment imposed on those who were expelled. The punishment
was severe, but we cannot say that it was so severe as to have
been arbitrary or clearly unreasonable. It is agreed on all
hands that school officials exercise a comprehensive authority,
within constitutional bounds, to maintain good order and
discipline on school grounds. E. g., Tinker v. Des Moines
Community School Dist., 393 U.S. 503, 507, 89 S.Ct. 733, 21
L.Ed.2d 731 (1969); Bright v. Nunn, 448 F.2d 245, 249 (6th Cir.
8a
BOYKINS v. FAIRFIELD BOARD OF EDUCATION
1971). And in Ferguson v. Thomas, supra note 6, 430 F.2d at
859, we noted that the findings of school agencies“. .
when reached by correct procedures and supported by sub-
stantial evidence, are entitled to great weight. Yep
The Fairfield School Board was presented with a situation
of recurring disorder which bid well to disrupt finally a school
year already crippled. Firm action was called for and was
taken, but no indiscriminate or mass discipline was imposed.
The punishment meted out was such as has traditionally been
imposed by school authorities in severe cases. The district
court has reviewed the evidence supporting the Board’s action
in each instance, as have we, and has concluded that it is
substantial. We have held that due process was accorded, and
we cannot say that the findings of the court below were
erroneous.
[5] Finally, appellants complain of the refusal of the dis-
trict court, in the name of integration, to require the Board to
accede to such demands as are quoted above. Whatever merit
these propositions may have as suggestions to the School
Board, on the record they are not for our cognizance. The
court did not err in finding from the evidence presented that
each of them was either insubstantial or involved no racial
discrimination. It appears that Fairfield’s dual school system
is drawing to a close and with it, we may hope, this long case.
Affirmed.
GODBOLD, Circuit Judge (dissenting in part):
I must record a partial dissent, to that part of the decision
which affirms the expulsion of eight black students.
The power to expel students is not unlimited and cannot be
arbitrarily exercised. Dixon v. Alabama State Board of Edu-
cation, 294 F.2d 150, 157 (C.A.5, 1961).
Turning then to the nature of the governmental power to
expel the plaintiffs, it must be conceded . . . that
that power is not unlimited and cannot be arbitrarily exer-
9a
BOYKINS v. FAIRFIELD BOARD OF EDUCATION
cised. Admittedly, there must be some reasonable and
constitutional grounds for expulsion or the courts would
have a duty to require reinstatement.
Only recently we said that there can be such shocking dispari-
ty between an offense by a pupil and the disciplinary penalty
imposed upon him by school authorities that the commands of
the Fourteenth Amendment have not been met. Lee v.
Macon County Board of Education (Randolph County), 490
F.2d 458 [C.A.5, 1974]. Accepting the foregoing principle, the
majority hold, though without discussion of the underlying
facts, that the expulsions of eight pupils were not so severe as
to have been arbitrary or clearly unreasonable.
1. The facts.
The background is as stated in the majority opinion. Oper-
ation of the Fairfield school system has been a fruitful source
of litigation. The Board is now before us for at least the
seventh time.’ This is not to say that the Board cannot be
right and blacks cannot be wrong, but that the Board’s track
record in desegregating the system must be considered as part
of the overall circumstances of the present case. More than
100 students were suspended from the Fairfield High School
1. United States v. Jefferson County Bd. of Ed., 372 F.2d 836 (C.A5,
1966), aff'd en banc, Se ee ee
of Board, ordering desegregation of schools and permitting freedom
of choice}; Boykins v. Fairfield Bd. of Ed., 399 F.2d 11 (C.A.5, 1968)
{reversing Board’s denial of freedom-of-choice applications of blacks
to transfer to formerly all-white schools]; Boykins v. Fairfield Bd. of
Ed., 421 F.2d 1330 (C.A.5, 1970) [reversing because freedom-of-
choice not operating acceptably and school attendance zones drawn
by Board in a manner reducing rather than desegrega-
tion]; Boykins v. Fairfield Bd. of Ed., 429 F.2d 1234 (C.A.5, 1970)
[remanding because desegregation plan of Board did not change
possible alternatives as to junior and senior high schools}; Boykins
v. Fairfield Bd. of Ed., 446 F.2d 973 (C.A.5, 1971) [remanding for
reconsideration in the light of new Supreme Court decision]; Boy-
kins v. Fairfield Bd. of Ed., 457 F.2d 1091 (C.A.5, 1972) [reversing
and remanding for failure to desegregate an all-black school and for
additional hearing on issue of whether black high school students
were being purposefully segregated by being placed in classes held
in a separate building].
ot 10a
BOYKINS v. FAIRFIELD BOARD OF EDUCATION
because of repeated absences during a black boycott. On
November 9, 1972, those suspended were ordered by the
District Court to be readmitted, contingent upon termination
of the boycott, return of all students to classes, and an end to
disruptive activities. Readmissions began on the morning of
November 10. The Board takes the position, and the District
Court agreed, that the eight pupils were expelled for what
they did that day. Let us see what it was.
Clarence Young: Events involving him triggered the diffi-
culties of November 10. The charge against him was:
He was disrespectful for authority and carrying on in the
hall as in the sense of inciting something among the stu-
dents.
The testimony against him came from Coach Evans, a Negro,
plus a brief statement by Principal Turner. From the testi-
mony the Board could conclude that the following events
occurred. It was necessary for suspended students to get
passes from the guidance office to return to classes. On the
morning of November 10 students began walking into the
building where the guidance office was located. Young
seemed to be directing other students to come in the build-
ing because he stopped at the front door at the main
entrance up there mouthing off at the other students, and
getting, like he was getting everything together for them to
march in the room.
Coach Evans opened a door and the door struck a male and
then a female student in the line of students waiting to get
passes. Evans apologized to them. Either before he apologiz-
ed, or while he was doing so, or immediately after he had done
so—the facts are unclear—Young told him he owed an apolo-
gy to the female.” Immediately thereafter other students
began talking with Young. Evans considered that Young
2. This is the incident that the majority opinion describes as Young’s
“under[taking] to instruct a Negro faculty member as to the proprie-
ties of his behavior.”
Ila
BOYKINS v. FAIRFIELD BOARD OF EDUCATION
“was trying to bring the crowd on,” that Young was “for the
wrong thing.” Coach Evans felt, “in my 2~pectation, he didn’t
come there to go to school tha: day. That is my expectation.
I could be wrong.” Evans seured a pass for Young and gave
it to him so that he would 5,0 on to class. As Young walked
away he referred to Evans as “Uncle Tom” and “Half Whi-
tey”. As Young crossed an open area en route to his class he
was seen to be “carrying on.” A city councilman present saw
him and told Evans he should have a talk with Young because
“it looks like he is for the wrong thing.”
Coach Evans engaged Young in conversation, and Young
took the position he had done no wrong and was being “picked
on.” Possibly he repeated the racial epithets he had earlier
used. Evans took him to the principal’s office and talked with
him. Young was excited and talked sufficiently loudly that a
staff member suggested that the principal also go into the
office, and Principal Turner went in and stayed briefly. A
friend of Young’s called his mother, she came to the office,
and in the ensuing conversation she twice told her son to
“simmer down.”
Evans testified that he did not consider Young to be a
leader of the other students. He did, however, hear Young
telling other students to get their passes. Evans disapproved
of this, though his reason is unclear, since without dispute the
necessity for passes was being communicated by word of
mouth. |
As Judge Gee’s opinion points out, word spread about the
difficulty with Young, some black students left their classes,
and some went to other rooms and called for other students to
leave classes and join in a meeting to discuss what should be
done about the incident. A group gathered outside the princi-
pal’s office where conversations with Young were, or had
been, going on. That. brings us to the facts concerning the
other expellees.
,i $Me
_ BOYKINS v. FAIRFIELD BOARD OF EDUCATION
Jacque Guest: The charge was that he left class without
permission and encouraged other students either not to go to
lass or to walk out of classes. He admitted the offense,
including going to another nee and encouraging stu-
dents to leave.
Beverly Claiborne: The charge against her was twofold:
first, that she obtained ‘a pass but did not go to her first
period class; second, that subsequently Principal Turner told
her she was expelled and began to explain something to her
{apparently her right to a hearing], whereupon she got up and
left his office and in an outer office, in the presence of
members of his staff and other students, used profanity
concerning him.’ Miss Claiborne admitted saying the words
but claimed she had said them to herself and not “out loud.”
_ Linda Meadows: The charge was that she came to a class-
_ room other than that to which she was assigned, the teacher
told her to leave, and she cursed him in the presence of the
class and left. The Board was entitled to accept the written
statement of the teacher that this occurred. It could accept
Miss Meadows’ testimony that her purpose in going to the
classroom was to see if other students who had participated in
the walkout were in the room. There is, however, no evidence
that she or anyone with her urged students in the classroom to
leave class or indeed said anything to them. On cross exami-
nation of Miss Meadows the Board attorney questioned her
concerning whether she went to classrooms other than to one
to which she admitted going, and she denied doing so, and
there is no evidence that in fact she did.
Darlene Phelps and Cathy Scott: The charge was leaving
their, first period classroom without permission. The Board
could accept their teacher’s statement that they did so. Miss
Phelps acknowledged going to another classroom, stating that
‘she went to a study hall and complained to the teacher about
3. The verbiage is unrevealed because at the Board hearing it was not
verbalized but written on a an of paper that was handed around
and discussed.
13a
BOYKINS v. FAIRFIELD BOARD OF EDUCATION
what was occurring [presumably the events of the morning].
That teacher neither testified nor gave a statement, and there
is no evidence that Miss Phelps attempted to get students to
leave the study hall, or indeed that she said anything to the
students, or that her conduct was disruptive. Faculty mem-
ber Bird testified that in the presence of Cathy Scott he told a
group of students to return to their classes.
John Hall and Beverly Law: They were present for the
hearing before the Board but, after several hours, left before
their cases were reached. The Board heard their cases in
their absence. The evidence against them, which the Board
could accept, was the written statement of their teacher that
they left class without permission after being told repeatedly
to remain.
2. The District Court order.
In reviewing the Board action, the District Court recog-
nized, citing Dixon, that part of its function was to determine
“whether there was evidence of some reasonable or constitu-
tional ground for the action taken in imposing the sentence of
expulsion.” In rejecting plaintiffs’ contention that the expel-
lees were punished because they had been leaders in the
boycott before November 10, the court said:
The evidence does not show that these students were
disciplined for being leaders in the boycott prior to Novem-
ber 10, 1972, but the fact that they became leaders in the
continuation of the demonstration on November 10, 1972,
was a matter certainly material for the consideration of the
school authorities in view of the Court’s order of November
9, 1972, and the school authorities’ attempt to prevent
further demonstrations and disturbances when school recon-
vened on November 10, 1972. (Emphasis added.)
The facts, as set out above, reveal that the District Judge’s
premise that the eight expellees were “leaders in the continu-
ation of the demonstration on November 10” was wrong, at
least with respect to Phelps, Scott, Hall and Law. Phelps’
l4a
BOYKINS v. FAIRFIELD BOARD OF EDUCATION
offense was to leave her class, go to another classroom and
register a complaint with the teacher. Scott left her class and
later was where she could have heard a teacher tell students
to return to class. Hall and Law left their class after being
told not to. Turning to the other four, the Board could accept
that part of Evans’ testimony tending to describe the actions
of Young as a leader.‘ Guest’s actions were those of a leader.
Claiborne and Meadows cannot accurately be described as
leaders.
The situation on November 10 was volatile. School officials
were attempting to defuse it and get on with the primary job
of educating young people. It was important that students go
to and remain in their classrooms. Conduct that in a different
atmosphere might have called for less severe punishment
could, under these particular circumstances, justify more se-
vere penalties. Cf. Dunn v. Tyler Independent School Dis-
trict, 460 F.2d 1387 (C.A.5, 1972). In my view the expulsions of
Young and Guest were within constitutional bounds. I am
much less certain as to Claiborne and Meadows—I have the
feeling that in the calm light of another day the District
Court might not have sustained their expulsions but for the
fact he erroneously thought they were leaders in re-igniting
disorder. I am not uncertain as to Phelps, Scott, Hall and
Law. What they did, and all that they did, was to leave their
classrooms without authority just as did numerous others on
the same occasion. With respect to these four, there ‘is no
evidence that any one of them urged any other student to
leave class or disturbed any classroom, participated in any
disorder (other than leaving class) or committed any act of
leadership. A sentence of lifetime exile from the public school
system of the place where they reside cannot stand under
these circumstances.
[A] sentence of banishment from the local educational sys-
tem is, insofar as the institution has power to act, the
4. Also Young's expulsion was independently sustainable on the
basis of his use of expithets directed at Coach Evans.
15a
BOYKINS v. FAIRFIELD BOARD OF EDUCATION
extreme penalty, the ultimate punishment. In our increas-
ingly technological society getting at least a high school
education is almost necessary for survival. Stripping a
child of access to educational opportunity is a life sentence
to second-rate citizenship, unless the child has the financial
ability to migrate to another school system or enter private
school.
Private citizens, law making bodies, and the media all
bend their efforts toward encouraging children to complete
their high school educations and to avoid becoming dropouts
and burdens to society. In the twenty years since Brown v.
Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873
(1954), this country has committed itself to a policy against
state-imposed public school segregation. It is not lesser but
more stringent state action to bar a child forever from
public school, with the result that he secures no education at
all.
Lee v. Macon County Board of Education, supra, 490 F.2d p.
460.
The plaintiffs urge that they were singled out for expulsion
for reasons other than what they.did on November 10. There
is good circumstantial evidence supporting that claim. After
their expulsion at least four of them attempted to enroll in
other public high schools in adjacent geographical areas, and
were informed that each would have to secure an “OK” from
the Fairfield superintendent to do so. They approached him,
asked his approval, and it was refused. The superintendent
testified that all transcripts and other required records were
furnished but that affirmative statements in the form of any
“OK” or “recommendation” were denied. Obviously the su-
perintendent had no legal duty to assist these young people to
get into schools elsewhere. But I confess my inability to
understand the unwillingness to lift a finger—even to the
extent of a statement saying “we expelled them for good
reasons, but if you want to accept them we do not object.”
Sentence of ex:'e was coupled with a specific refusal to act,
16a
BOYKINS v. FAIRFIELD BOARD OF EDUCATION
.
~
with the consequence that the effective scope of exile was
broadened to include adjoining geographical areas as well.
The Board’s argument that it does not control the admission
policies of other schools is a subterfuge. No one contends that
it does. The Superintendent’s refusal cut off at the threshold
the possibility that other systems, pursuant to their own
admission policies, might have been willing to accept the
students.
Secondly, there was obvious disparity in penalties. Numer-
ous students left their classes without permission. A number
of those charged for doing so were not expelled, including one
who left ostensibly to go home but remained on the school
grounds knowing that he was not supposed to do so; another
who left and went home; a third who left class in response to
students coming to his classroom and telling him about Clar-
ence Young.
Thirdly, the Board declined to receive evidence of prior
conduct, good or bad, by the charged students. It announced
that it was limiting itself to consideration of events of No-
vember 10. This, of course, makes the disparity in punish-
ments more suspect. It leaves no explanation, or even at-
tempt at explanation, for the wide disparities. The Board’s
response is that it is entitled to impose differing penalties.
Indeed it has that authority but the presence of power is not
an explanation for the manner of exercise. Additionally, this
limitation of evidence by the Board uccentuates more sharply
the erroneous premise by the District Judge that all expellees
were leaders on November 10.
With apparent determination to drive every nail into the
coffin, the majority make the point that none of the students
reapplied for admission, so that what the consequences of
reapplication would have been are unknown. This was hardly
a promising request to be made to a system that would not
even “OK” an attempt to apply for admission to another
system, but pretermitting that point, there is no such require-
ment as a condition precedent to judicial consideration or
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17a
BOYKINS v. FAIRFIELD BOARD OF EDUCATION
ial relief, nor does failure to reapply diminish the finality
e Board’s decision of permanent expulsion. Also, while it
t a matter of formal record, the court inquired at oral
ment about the ultimate fate of the expellees. We were
that some were admitted to parochial schools where
m is required, at least two are attending schools in
er state, and one is known to be out of school. The
ield system records on each of the eight students contin-
) reflect that he cr she was permanently thrown out of
ystem and imply that each was guilty of conduct justify-
hat penalty. This impediment to college admission and
iblic and private employment is now made immutable.
the statement by the majority that all but one of the
were able to find schooling elsewhere is mere legal
ing syrup neither mitigating the wrong nor mooting the
rine —_—
Decision of District Court, December 14, 1972
Oprsion ox Liev or Forma, Frspines
By this Court’s opinion of November 27, 1972, the plain-
tiffs’ motion seeking relief from explusion or suspension of
certain students was continued pending administrative
hearing. The Fairfield Board of Education held the ad-
ministrative hearings on November 25, 1972. It is not
questioned that the students involved had advanced writ-
ten notice of the charges against therm and that upon the
hearing each one was advised of the charges and later of
the action taken by the Board. Twenty-one students were
involved. The following students were readmitted as of
November 27, 1972: Marsha Gulley, Randy Lawrence, Linda
Watts and Anthony Williams. The following students
were readmitted as of December 4, 1972: Cleophus Carter,
David Coleman, Roland Lawrence, Richard McCurtis, Eddie
McKenzie, Roger McLin, Falenza Pickens and Beverly Wil-
liams. Vanessa Arrington was suspended for the remainder
of the semester. The following students were expelled:
Beverly Claiborne, Linda Meadows, Clarence Young,
Jacques Guest, Darlene Phelps, Cathy Scott, John Hall
and Beverly Law.
The motion as it now stands challenges the suspension of
Vanessa Arrington for the remainder of the semester and
the expulsion of the eight students above named.
As found by the order of November 9, 1972, some 114
students who were involved in the boycott were dropped
from the roll because of absences of 20 or more days, in
violation of Board of Education Rule 20. The Court di-
rected the readmittance of these students, including those
later involved in the expulsion and suspension action.
The Court was assured by the counsel for the plaintiffs
that if these students were readmitted, plaintiffs and their
eae
19a
Decision of District Court, December 14, 1972
counsel would exercise every reasonable effort to terminate
the boycott by November 10, 1972, inasfar as the students
themselves at Fairfield High School were concerned. In
the order of November 9, 1972, the Court stated that:
“The Court does not look with favor upon any action
that contravenes the principle that he who seeks equity
must offer to do equity. Consequently, the relief af-
forded the movants is conditioned upon the abandon-
ment of the boycott by all of the students in the Fair-
field system simultaneously with re-admission of the
students who are involved under the motion.”
Under the Court’s order the re-admission was to take effect
on November 10, 1972. The tumult that had existed during
the boycott was continued on the tenth. Police officers had
to be called in to police the school.
After Beverly Claiborne had obtained her readmittance
slip from the counselor’s office she did not report to her
first period class with Mr. Craig, and on Monday when
she was informed that she had been expelled she used vile
and profane language in Mr. Turner’s (principal) pres-
ence. She denied using the language but on cross-examina-
tion she admitted that she made the statements “To myself.
I didn’t say it out loud, to myself I did, but not out loud.”
She also contended that she had been excused. The evi-
dence sustained the charges against her.
Linda Meadows went to a room to which she was not
assigned and when instructed to leave cursed the teacher
in front of the class and then left. She denied using the
profane language. She admitted looking into the various
rooms to ascertain who was in the demonstration or if
anyone who was in the demonstration was in the class-
rooms. The evidence sustained the charges.
20a,
Decision of District Court, December 14, 1972
Clarence Young was charged with being disrespectful
to Mr. Evans, a black ‘teacher, and inciting the demon-
strators and directing the students who were in the demon-
stration on the morning of November 10, 1972. He called
Mr. Evans an “Uncle Tom” and “half whitey.” Young
denied making these statements to Mr. Evans. The evi-
dence sustained the charges.
Jacques Guest was charged with walking out of his class
without permission on the morning of Friday, November
10, 1972, and encouraging other students either to not go
to class or to walk out of their classes. The evidence sub-
stantiates these charges. Guest admitted walking out of
the class before the period was over without the permission
of the teacher.
Darlene Phelps was charged with leaving her first period
class on November 10, 1972, without the permission of Mrs.
Sexton, her teacher. She testified that she had the teach-
er’s okay. The evidence sustained the charge.
Cathy Scott was also charzed with leaving her class on
the morning of November 10, 1972, without permission.
She testified that she had Mrs. Sexton’s permission to
leave. There was evidence to sustain the action of the
Board in expelling this student.
John Hall walked out of his class without permission
on the morning of November 10, 1972, after being re-
peatedly told to stay in the class; so did Beverly Law.
Neither John Hall nor Beverly Law appeared for the hear-
ing. There was sufficient evidence to sustain the action
of the Board. ;
21a
Decision of District Court, December 14, 1972
Vanessa Arrington left her class during the first period
on the morning of November 10, 1972, without the per-
mission of her teacher. She testified that when everybody
else had walked out of Mrs. Robinson’s room she asked
permission to leave and permission was granted. She
conceded that to leave the room she had to have a writ-
ten slip evidencing permission, even to ge to the restroom.
She further testified that she aske@for one of the slips
but was not given it. There was evidence to sustain the
suspension.
In a hearing of this nature the Court does not understand
that it has the function of retrying the issues of expulsion
or suspension de novo. Nor is it the Court’s duty to pass
upon the credibility of witnesses. It appears that its func-
tion is to determine: (1) whether there has been pro-
cedural due process, and (2) whether there was evidence
of some reasonable or constitutional ground for the action
taken in imposing the sentence of expulsion or suspension.
Dizon v. Alabama State Board of Education, 294 F.2d
150.
In view of what had occurred at the school prior to
November 10, 1972, it was essential that the students go
to their classes and remain in their classes rather than
milling around in the halls and continuing the demonstra-
tion. It is not logical nor does it make sense that the
teachers would excuse the students from the classes as
several of them have testified. The demonstrations attend-
ing the boycott could hardly be prevented if the students
were excused from their classes or if they walked out
deliberately as the evidence indicates these students did.
1“ A) full-dress judicial hearing, with the right to cross-examine
witnesses, is [not] required.”—Id.
22a
Decision of District Court, December 14, 1972
This Court’s order of November 9, 1972, giving these
students the right to return to their classes was condi-
tioned upon their abandonment of the boycott. Not only
did the action which the evidence shows that they took
contravene the instructions of the school authorities, but
it flew in the face of this Court’s order of November 9,
1972. In view of those demonstrations the school au-
thorities felt it necessary to excuse school on November
the tenth and this was done and another day was lost.
The maintenance of discipline was a matter of first con-
cern if classes were to continue. The students who were
disciplined by expulsion or suspension flaunted the funda-
mental principles of discipline which obviously were in-
herent in the situation existing on the morning of Novem-
ber 10, 1972, namely, that they should go to and remain
in their classes and not become involved in further demon-
strations.
Counsel for the plaintiffs contends that the students are
being punished because of their leadership in the boycott,
a boycott which had cost the School Board some $30,000.00
in state funds. The evidence does not show that these
students were disciplined for being leaders in the boycott
prior to November 10, 1972, but the fact that they became
leaders in the continuation of the demonstration on No-
vember 10, 1972, was a matter certainly material for the
consideration of the school authorities in view of the
Court’s order of November 9, 1972, and the school an-
thorities’ attempt to prevent further demonstrations and
disturbances when school reconvened on November 10,
1972. Counsel complains that others who were equally
guilty were not punished by expulsion or suspension. This
fact, if it be a fact, could hardly be justification for lifting
23a
Decision of District Court, December 14, 1972
the sentences with respect to these students. The hearing
that was held by the Board was an extensive one and there
was much evidence. The Court does not feel that it is
ealled on to analyze all of the evidence. It simply states
that within the ambit of its prerogative respecting the re-
view that the students now complaining were afforded
procedural due process and the expulsions and the suspen-
sion were merited under the evidence.
An order will be entered pursuant to the foregoing
fin, ‘ings.
Done this the 14th day of December, 1972.
H. H. Grooms
United States District Judge
24a
Order and Oral Opinion of District Court,
March 2, 1973
OrpER
This matter came on for hearing on March 2, 1973, upon
the plaintiffs’ motion for emergency relief filed herein on
February 21, 1973. After hearing the parties and upon due
consideration thereof, the Court is of the opinion that
said motion is due to be overruled.
It is, therefore, ORDERED, ADJUDGED and DECREED that the
plaintiffs’ said motion be and the same hereby is overruled.
Done and Ordered, this the 2nd day of March, 1973.
H. H. Grooms
United States District Judge
25a
Order amd Oral Opinion of District Court, March 2, 1973
“Ornau Oprsiox
The Court: Gentlemen, this matter, I think, probably
vests itself to the schcol Board, to the school authorities.
In the absence of some evidence that there has been some
change in conditions, I would not be justified in vacating
this order that was previously entered. Now maybe the
School Board of the School officials will relent, that de-
pends a lot on the conduct, maybe, of the students or their
willingness to—well, to ask for forgiveness and so on, but
that is a matter that should be addressed to the School
Board, and they haven’t re-applied to the School Board
for re-admission out there, and that is where they should
start in this matter.
I am not inviting ‘trouble for the School Board, but I
don’t think that it’s a matter for this Court, and it’s a
matter for the Board, and if there is new evidence brought
‘out that there should be a changed condition or’ the Court
should modify the order then I can proceed with the
matter at that time, but at this juncture I would just be
acting without any reason or evidence, Mr. Newton, to
vacate this order.
Mr. Newton: If it please the Court, your order sort of |
_ foreclosed any attempt that the students have, you heard
the testimony from the Superintendent.
The Court: The School Board has the authority to
modify this order, I didn’t expell the students, they ex-
pelled the students.
,Mr. Newton: You upheld it. !
The Court: I didn’t direct that, what the School Board
should do permanently, that is up to them, if they want
to modify that or if they want to reconsider their —
_of course, they have the right to do 80.
1
Order and Oral Opinion of District Court, March 2, 1973
Mr. Newton: Exactly.
The Court: And I think any attempts to that end should
be addressed to the School Board.
| Mr. Newton: If it please the Court, once Your Honor—
the School Board’s language was permanent expulsion, an
expulsion which this Court upheld, and we say—
The Court: Well, permanent is like my wife’s perma-
nent wave, she gets a permanent wave and I say, “Well,
I can’t understand why this wave isn’t permanent, you are
getting another one now”.
Mr. Newton: Well, Your Honor, in the light of the
testimony we just heard means permanent here, unlike the
permanent wave, it seems to me to mean very perma-
nent, the Superintendent says, “No, because you are ex-
pelled”. , .
The Court: Maybe they have got a bigger spot in their
i
. hearts than you think, Mr. Newton.
Mr. Newton: In the meantime, while we have—we have
students who are not entitled to a free public education.
The Court: That is the consequences of expulsion, and
I will overrule the motion.
Mr. Newton: Thank you very much.
Enp or Proceepres
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.