RIVES, Circuit Judge.
The question presented by the pleadings and evidence,
The misconduct for which the students were expelled has never been definitely specified. Defendant Trenholm, the President of the College, testified that he did not know why the plaintiffs and three additional students were expelled and twenty other students were placed on probation. The notice of expulsion
The acts of the students considered by the State Board of Education before it ordered their expulsion are described in the opinion of the district court reported in 186 F.Supp. 945, 947, from which we quote in the margin.
As shown by the findings of the district court, just quoted in footnote 3, the only demonstration which the evidence showed that all of the expelled students took part in was that in the lunch grill located in the basement of the Montgomery County Courthouse. The other
Only one member of the State Board of Education assigned the demonstration attended by all of the plaintiffs as the sole basis for his vote to expel them. Mr. Harry Ayers testified:
The most elaborate grounds for expulsion were assigned in the testimony of Governor Patterson:
Superintendent of Education Stewart testified that he voted for expulsion because the students had broken rules and regulations pertaining to all of the State institutions, and, when required to be more specific, testified:
The testimony of other members of the Board assigned somewhat varying and differing grounds and reasons for their votes to expell the plaintiffs.
The district court found the general nature of the proceedings before the State Board of Education, the action of the Board, and the official notice of expulsion given to the students as follows:
Dixon v. Alabama State Board of Education, D.C.M.D.Ala.1960, 186 F.Supp. 945, 948, 949.
The evidence clearly shows that the question for decision does not concern the sufficiency of the notice or the adequacy of the hearing, but is whether the students had a right to any notice or hearing whatever before being expelled.
It is true, as the district court said, that "* * * there is no statute or rule that requires formal charges and/or a hearing * * *," but the evidence is without dispute that the usual practice at Alabama State College had been to give a hearing and opportunity to offer defenses before expelling a student. Defendant Trenholm, the College President, testified:
Whenever a governmental body acts so as to injure an individual, the Constitution requires that the act be consonant with due process of law. The minimum procedural requirements necessary to satisfy due process depend upon the circumstances and the interests of the parties involved. As stated by Mr. Justice Frankfurter concurring in Joint Anti-Fascist Refugee Committee v. McGrath, 1951, 341 U.S. 123, 163, 71 S.Ct. 624, 644, 95 L.Ed. 817:
It is not enough to say, as did the district court in the present case, "The right to attend a public college or university is not in and of itself a constitutional right." 186 F.Supp. at page 950. That argument was emphatically answered by the Supreme Court in the Cafeteria and Restaurant Workers Union case, supra, [81 S.Ct. 1748.] when it said that the question of whether "* * * summarily denying Rachel Brawner access to the site of her former employment violated the requirements of the Due Process Clause of the Fifth Amendment * * * cannot be answered by easy assertion that, because she had no constitutional right to be there in the first place, she was not deprived of liberty or property by the Superintendent's action. `One may not have a constitutional right to go to Bagdad, but the Government may not prohibit one from going there unless by means consonant with due process of law.'" As in that case, so here, it is necessary to consider "the nature both of the private interest which has been impaired and the governmental power which has been exercised."
The appellees urge upon us that under a provision of the Board of Education's regulations the appellants waived any right to notice and a hearing before being expelled for misconduct.
We do not read this provision to clearly indicate an intent on the part of the student to waive notice and a hearing before expulsion. If, however, we should so assume, it nonetheless remains true that the State cannot condition the granting of even a privilege upon the renunciation of the constitutional right to procedural due process. See Slochower v. Board of Education, 1956, 350 U.S. 551, 555, 76 S.Ct. 637, 100 L.Ed. 692; Wieman v. Updegraff, 1952, 344 U.S. 183, 191, 192, 73 S.Ct. 215, 97 L.Ed. 216; United Public Workers of America (C.I.O.) v. Mitchell, 1947, 330 U.S. 75, 100, 67 S.Ct. 556, 91 L.Ed. 754; Shelton v. Tucker, 1960, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231. Only private associations have the right to obtain a waiver of notice and hearing before depriving
The precise nature of the private interest involved in this case is the right to remain at a public institution of higher learning in which the plaintiffs were students in good standing. It requires no argument to demonstrate that education is vital and, indeed, basic to civilized society. Without sufficient education the plaintiffs would not be able to earn an adequate livelihood, to enjoy life to the fullest, or to fulfill as completely as possible the duties and responsibilities of good citizens.
There was no offer to prove that other colleges are open to the plaintiffs. If so, the plaintiffs would nonetheless be injured by the interruption of their course of studies in mid-term. It is most unlikely that a public college 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 institution. Surely no one can question that the right to remain at the college in which the plaintiffs were students in good standing is an interest of extremely great value.
Turning then to the nature of the governmental power to expel the plaintiffs, it must be conceded, as was held by the district court, that that power is not unlimited and cannot be arbitrarily exercised. Admittedly, there must be some reasonable and constitutional ground for expulsion or the courts would have a duty to require reinstatement. The possibility of arbitrary action is not excluded by the existence of reasonable regulations. There may be arbitrary application of the rule to the facts of a particular case. Indeed, that result is well nigh inevitable when the Board hears only one side of the issue. In the disciplining of college students there are no considerations of immediate danger to the public, or of peril to the national security, which should prevent the Board from exercising at least the fundamental principles of fairness by giving the accused students notice of the charges and an opportunity to be heard in their own defense. Indeed, the example set by the Board in failing so to do, if not corrected by the courts, can well break the spirits of the expelled students and of others familiar with the injustice, and do inestimable harm to their education.
The district court, however, felt that it was governed by precedent, and stated that, "the courts have consistently upheld the validity of regulations that have the effect of reserving to the college the right to dismiss students at any time for any reason without divulging its reason other than its being for the general benefit of the institution." [186 F.Supp. 951.] With deference, we must hold that the district court has simply misinterpreted the precedents.
The language above quoted from the district court is based upon language found in 14 C.J.S. Colleges and Universities § 26, p. 1360, which, in turn, is paraphrased from Anthony v. Syracuse University, 224 App.Div. 487, 231 N.Y.S. 435, reversing 130 Misc.2d 249, 223 N.Y.S. 796, 797. (14 C.J.S. Colleges and Universities § 26, pp. 1360, 1363 note 70.) This case, however, concerns a private university and follows the well-settled rule that the relations between a student and a private university are a matter of contract. The Anthony case held that the plaintiffs had specifically
The appellees rely also upon Lucy v. Adams, D.C.N.D.Ala. 1957, 134 F.Supp. 235, where Autherine Lucy was expelled from the University of Alabama without notice or hearing. That case, however, is not in point. Autherine Lucy did not raise the issue of an absence of notice or hearing.
It was not a case denying any hearing whatsoever but one passing upon the adequacy of the hearing,
Dismissal of Students: "Due Process," Warren A. Seavey, 70 Harvard Law Review 1406, 1407. We are confident that precedent as well as a most fundamental constitutional principle support our holding that due process requires notice and some opportunity for hearing before a student at a tax-supported college is expelled for misconduct.
For the guidance of the parties in the event of further proceedings, we state our views on the nature of the notice and hearing required by due process prior to expulsion from a state college or university. They should, we think, comply with the following standards. The notice should contain a statement of the specific charges and grounds which, if proven, would justify expulsion under the regulations of the Board of Education. The nature of the hearing should vary depending upon the circumstances of the particular case. The case before us requires something more than an informal interview with an administrative authority of the college. By its nature, a charge of misconduct, as opposed
The judgment of the district court is reversed and the cause is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
CAMERON, Circuit Judge (dissenting).
The opinion of the district court in this case
A good place to start is the quotation made by the majority from the recent case of Cafeteria and Restaurant Workers Union v. McElroy, 1961, 81 S.Ct. 1743, wherein the discussion is made of one's right to "go to Bagdad." I would add to the language quoted by the majority from that case the sentences which follow it:
The failure of the majority to follow the reasoning of McElroy, supra, results, in my opinion, from a basic failure to understand the nature and mission of schools. The problem presented is sui generis.
Everyone who has dealt with schools knows that it is necessary to make many rules governing the conduct of those who attend them, which do not reach the concept of criminality but which are designed to regulate the relationship between school management and the student based upon practical and ethical considerations which the courts know very little about and with which they are not equipped to deal. To extend the injunctive power of federal courts to the problems of day to day dealings between school authority and student discipline and morale is to add to the now crushing responsibilities of federal functionaries, the necessity of qualifying as a Gargantuan aggregation of wet nurses or baby sitters. I do not believe that a balanced consideration of the problem with which we are dealing contemplates any such extreme attitude. Indeed, I think that the majority has had to adopt the minority view of the courts in order to reach the determination it has here announced.
Nor do I find of favorable (to the majority) significance the introductory sentence quoted by it from the annotation in 58 A.L.R. at page 909.
The general rule covering the subtitle "Government and Discipline" in the general treatise on Colleges and Universities is thus stated in the black-typed summary of the law in Vol. 14 C.J.S. Colleges and Universities, § 26, page 1360:
All of these expressions of the general rule seem to me to justify and require our adherence to that rule under the facts of this case. The majority opinion sets out many of them, but I think its statement should be supplemented and set forth in chronological order.
Appellants and other members of the student body of Alabama State College had, for a period prior to the happenings outlined, been attending meetings at Negro churches and other places where outsiders, including professional agitators, had been counseling that the students of that institution engage in "demonstrations." Appellants, along with a total of between twenty-nine and thirty-five students of the college, proceeded en masse into a snack bar in the basement of the county court house at Montgomery, Alabama, seating themselves in the privately owned facility so as to occupy nine tables. The lady in charge of the eating place asked them to depart and they refused. Officers were called and, upon their arrival, they first asked that all white patrons leave the premises, which was promptly done. The Negroes refused their request to leave until the lights were put out, whereupon they proceeded to the hall of the court house. Inasmuch as they were blocking ingress and egress therefrom, they were ordered by the officers to take their stands against the walls, which they did. They remained in the court house about one and one-half hours following their entrance about 11:00 A.M. They refused to give their names to reporters who interviewed them. The occurrence took place on February 25, 1960.
The president of the college, H. Councill Trenholm, investigated the occurrence at the direction of the governor of Alabama and made his report and recommendation to the State Board of Education. About five o'clock on the afternoon of the occurrence he had released a mimeographed statement making an appeal to the students and staff that they "refrain from any activities which may have a damaging effect upon the reputation and relationships of college and * * * have concern that there not be any type of further involvement of any identified student of Alabama State College." He reported that, from his investigation conducted on the campus, it was his opinion that twenty-nine students who were the leaders in the activities he had investigated were subject to expulsion.
February 27, several hundred Negro college students, including appellants, staged mass demonstrations in Montgomery and Tuskegee, some of which were attended by violence. On the same day a large group of students from the college, including appellants, gathered at a Negro church and one of appellants, Bernard Lee, filed a petition with the governor in which it was stated, among other things: "We strongly feel that our conduct was not of such that we should owe our college or state an apology. If our conduct has disturbed you or President Trenholm, we regret this. But we have no sense of shame or regret for our conduct * * *"
On the same day the governor was advised by the college president that he had called upon members of the student body to behave themselves and return to classes and had urged the students not to engage in conduct which might cause racial disturbances. A like plea was made by the Attorney General of Alabama both to white and colored people. March 1, 1960, at about 8:00 A.M., approximately six hundred students of the college marched to the steps of the state capitol, where student leaders, including appellants, made addresses calling on all the students to boycott and strike against the college if any students were expelled. The gathering was policed by a number of the state officials to prevent untoward incidents.
March 2, 1960, the State Board of Education met and heard Dr. Trenholm's report, ordering the nine students mentioned above to be expelled and twenty to be placed on probation. The Board had the benefit of reports made by agents of the Department of Public Safety, which revealed the names of the demonstrators and of their leaders, as well as that of college president and of the governor who had witnessed portions of the demonstrations.
March 3, 1960, the date of the expulsion order, about two thousand Negro students staged a demonstration at a church near the college campus at which appellants were the leaders. They urged the students to refrain from returning to classes and from registration for the new term, and publicly denounced the State Board and the college administration. The students stayed away from classes and milled about the campus in general disorder.
These events all transpired before the expulsion of appellants. But the "demonstrations" did not cease. March 4, a wildly cheering crowd of Negro students gathered at a church and were addressed by one or more agitators of national prominence, and an appeal was made for a meeting the following Sunday on the steps of the state capitol. At the meeting, one or more of appellants and a number of other students were very critical of the governor and the college administration.
March 6, 1960, several thousand Negroes, including appellants and hundreds of the students of the college assembled near the steps of the capitol and approximately ten thousand white people gathered in the same vicinity. A large gathering of city and county officers and the use of fire hose finally avoided an open clash between the two groups. For a number of days following, there were demonstrations on the campus of the college accompanied by some violence and some arrests were made by the police.
March 11, the entire group which had initiated the demonstrations were convicted and fined. Several months later, appellants and several other students were still engaged in constant efforts to stir up trouble and dissension among the students and faculty of the college.
After appellants were expelled a document signed by one of them, on behalf of the executive committee of the student body, issued a public call to the student body of every school in Alabama, in the South and in the nation to support the appellants, and the same document called upon parents, teachers and the people of the nation to give them support.
Each of the appellants had, in his application for admission to the college, agreed in writing to abide by college policies and regulations relating to admission, attendance, conduct, withdrawal or dismissal.
A part of the foregoing recital is taken from the affidavit of Governor Patterson of Alabama. It was attached to and offered as a portion of the answer of appellees to the complaint and the motion for preliminary injunction. This motion was considered along with all of the other motions filed and with the hearing of witnesses and was included in the order from which this appeal was taken. The affidavit was competent evidence even in a court. Rule 43(e) F.R.Civ.P., 28 U.S.C.A.
The opinion of the majority stresses that definite proof was not made of the attendance of all of the appellants at all of the "demonstrations" (the word is taken from the testimony of the only appellant who testified in the court below). I think that ample showing was made to establish that the appellants were at all of the demonstrations and were the ringleaders of them. They participated in the enterprise as joint venturers from the start and every document emanating from them showed the adhesiveness of the group.
It is interesting to find what the majority considers to be the significance of an assumed absence of proof in the light of the fact that only one of the appellants took the witness stand in the court below, although they all announced at the outset that they were ready for trial and manifestly were present in court. Their presence and participation in all which transpired was shown by believable evidence and circumstances and stand wholly undenied. In a recent case charging a fraudulent civil conspiracy against a defendant
See to the same effect these additional cases from this Circuit: United States v. Leveson, 1959, 262 F.2d 659; United
A fortiori, in an equity case where parties are seeking the extreme remedy of injunction against state officers, it does not lie in the mouths of appellants to decry the weakness of the opposition proof when they, having all the facts in their possession, sit silently by when challenged by assertions which it behooved them to refute if they would support their case. They were accused and convicted by competent proof, including a picture and writings authored by them, of public boorishness, of defying the authority of the officials of their school and state, of blatant insubordination, of endeavoring to disrupt the school they had agreed to support with loyalty, as well as to break up other schools, and had openly incited to riot; and when their time came to speak, they stood mute, offering only one of their group along with the college president and two newspaper reporters as witnesses.
Before they were notified of their expulsion they had issued public statements admitting everything which was the basis of their expulsion, and had disclosed everything they could have brought forward in any hearing which might have been given them before they were notified that their conduct required their separation from connection with the college. It is difficult to perceive the validity of the argument that they were not given a hearing when, called upon to refute proof offered against them and themselves carrying the burden of proof throughout, they failed to say a word in their defense.
We are trying here the actions of State officials, which actions we are bound to invest with every presumption of fairness and correctness. Certainly the Board had before it a responsible and credible showing which justified their finding that these appellants were guilty of wilful disobedience of the rules and directives of the head of the college they were attending and of conduct prejudicial to the school and unbecoming a student or future teacher in the schools of Alabama, as well as of insubordination and insurrection and inciting other peoples to like conduct. It is undisputed that the Board made a leisurely and careful investigation and passed its judgment in entire good faith. The State of Alabama had no statute and the school had no rule or regulation requiring any other hearing than that which was had, and the Board was entirely justified in declining "to continue to accept responsibility for the supervision and service to any student with whom the relationship becomes unpleasant and difficult." It is worth noting, too, that President Trenholm, testifying as a witness for appellants, stated that the rules of the school had been in effect more than thirty years; and that there was no requirement in them for notice or hearing and that prior practices did not include such as a precedent.
It is undisputed that failure to act as the Board did act would have resulted in a complete disruption of discipline and probable breaking up of a school whose history ran back many years, and whose president had held the position for thirty-five years. If he and the School Board had done less, they would, in my opinion, have been recreant to their duties. The moderate action they took did bring order out of chaos and enable the school to continue operation.
I do not feel that we are called upon here to volunteer our ideas of procedure in separating students from state colleges and universities. I think each college should make its own rules and should apply them to the facts of the case before it, and that the function of a court would be to test their validity if challenged in a proper court proceeding.
A sane approach to a problem whose facts are closely related to the one before us was made by the United States Court of Appeals for the Second Circuit in Steier v. New York State Education Commission et al., 1959, 271 F.2d 13. Its attitude is thus epitomized on page 18:
Certainly I think that the filing of charges, the disclosure of names of proposed witnesses, and such procedures as the majority discusses are wholly unrealistic and impractical and would result in a major blow to our institutions of learning. Every attempt at discipline would probably lead to a cause célébre, in connection with which federal functionaries would be rushed in to investigate whether a federal law had been violated.
I think we would do well to bear in mind the words of Mr. Justice Jackson:
I think, moreover, that, in these troublous times, those in positions of responsibility in the federal government should bear in mind that the maintenance of the safety, health and morals of the people is committed under our system of government to the states. More than a hundred year ago Chief Justice Marshall
"Expulsion from Alabama State College came without warning, notice of charges, opportunity to appear before defendants or at any other hearing, opportunity to offer testimony in defense, cross-examination of accusers, appeal, or other opportunity to defend plaintiffs' right not to be arbitrarily expelled from defendant College. Defendants' expulsion order, issued by the defendants functioning under the statutes, laws and regulations of the State of Alabama, thereby deprived plaintiffs of rights protected by the due process clause of the Fourteenth Amendment to the United States Constitution."
To this averment the defendants respond:
"* * * that the facts set forth in plaintiffs' complaint show no violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States; that plaintiffs have no constitutional right to attend Alabama State College; that the facts stated by plaintiffs in their complaint show that this Court is without jurisdiction for no arbitrary action is alleged except as conclusions unsupported by the facts alleged; that the defendants determined in good faith and within their authority as the governing authorities of Alabama State College that the expulsions of the plaintiffs were for the best interests of the college and based upon undisputed conduct of plaintiffs while students at said college."
As will appear later in this opinion, the issue thus squarely presented by the pleadings was fully developed in the evidence.
"This communication is the official notification of your expulsion from Alabama State College as of the end of the 1960 Winter Quarter.
"As reported through the various news media, The State Board of Education considered this problem of Alabama State College at its meeting on this past Wednesday afternoon. You were one of the students involved in this expulsion-directive by the State Board of Education. I was directed to proceed accordingly.
"On Friday of last week, I had made the recommendation that any subsequently-confirmed action would not be effective until the close of this 1960 Winter Quarter so that each student could thus have the opportunity to take this quarter's examinations and to qualify for as much OH-Pt credit as possible for the 1960 Winter Quarter.
"The State Board of Education, which is made responsible for the supervision of the six higher institutions at Montgomery, Normal, Florence, Jacksonville, Livingston, and Troy (each of the other three institutions at Tuscaloosa, Auburn and Montevallo having separate boards) includes the following in its regulations (as carried in page 32 of The 1958-59 Registration-Announcement of Alabama State College):
In the notice received by each of the students paragraph "c," just quoted, was capitalized.
"On or about March 1, 1960, approximately six hundred students of the Alabama State College engaged in hymn singing and speech making on the steps of the State Capitol. Plaintiff Bernard Lee addressed students at this demonstration, and the demonstration was attended by several if not all of the plaintiffs. Plaintiff Bernard Lee at this time called on the students to strike and boycott the college if any students were expelled because of these demonstrations."
"Q. Now on that day — from February 25 until the date that you received your letter of expulsion, which you have already identified, will you tell the Court whether any person at the College gave you any official notice that your conduct was unbecoming as a student of Alabama State College? A. No.
"Q. Did the president or any other person at the College arrange for any type of hearing where you had an opportunity to present your side prior to the time you were expelled? A. No.
"Q. Your answer was no? A. No."
The testimony of Governor Patterson, Chairman of the State Board of Education, was in accord:
"Q. Did the State Board of Education, prior to the time it expelled the plaintiffs, give them an opportunity to appear either before the College or before the Board in order to present their sides of this pic — of this incident? A. No, other than receiving the report from Dr. Trenholm about it.
"Q. Did the Board direct Dr. Trenholm to give the students formal notice of why they were expelled? A. No, the Board — the Board passed a resolution instructing Dr. Trenholm to expel the students and put twenty on probation, and Dr. Trenholm carried that out."
State Superintendent of Education Stewart testified:
"Q. Were these students given any type of hearing, or were formal charges filed against them before they were expelled? A. They were — Dr. Trenholm expelled the students; they weren't given any hearing.
"Q. No hearing? A. I don't think they would be given a hearing in any of our schools in this State; if they couldn't behave themselves, I think they should go home.
"Q. Do you — were they warned at all prior to expulsion? A. Not as I know of; I can't answer that question. Dr. Trenholm was in the meeting, and that afternoon after the Board meeting, he was given the — the decision, and he was the one who took action.
"Q. When the State Board of Education expels a student, is there any possibility of appeal or any opportunity for him to present his side of the story? A. I never have heard of it."
"* * * But the Court goes beyond that. It holds that the mere assertion by government that exclusion is for a valid reason forecloses further inquiry. That is, unless the government official is foolish enough to admit what he is doing — and few will be so foolish after today's decision — he may employ `security requirements' as a blind behind which to dismiss at will for the most discriminatory of causes.
"Such a result in effect nullifies the substantive right — not to be arbitrarily injured by Government — which the Court purports to recognize. * * * For under today's holding petitioner is entitled to no process at all. She is not told what she did wrong; she is not given a chance to defend herself. She may be the victim of the basest calumny, perhaps even the caprice of the government officials in whose power her status rested completely. In such a case, I cannot believe that she is not entitled to some procedures.
"`[T]he right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.'" [Citing McGrath, supra.]