415 F.2d 1077 (8th Cir. 1969), 19565, Esteban v. Central Missouri State College

Docket Nº:19565.
Citation:415 F.2d 1077
Party Name:Alfredo ESTEBAN and Steve Craig Roberds, Appellants, v. CENTRAL MISSOURI STATE COLLEGE, Warren C. Lovinger; W. Lester Simpson; JoeHerndon; Leland J. Culp; Virginia Cottlieb; Byron Constance and J. N.Cunningham, Appellees.
Case Date:August 28, 1969
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1077

415 F.2d 1077 (8th Cir. 1969)

Alfredo ESTEBAN and Steve Craig Roberds, Appellants,

v.

CENTRAL MISSOURI STATE COLLEGE, Warren C. Lovinger; W. Lester Simpson; JoeHerndon; Leland J. Culp; Virginia Cottlieb; Byron Constance and J. N.Cunningham, Appellees.

No. 19565.

United States Court of Appeals, Eighth Circuit.

Aug. 28, 1969

Rehearing Denied Oct. 3, 1969.

Page 1078

[Copyrighted Material Omitted]

Page 1079

Irving Achtenberg, Kansas City, Mo., for appellants.

Robert L. Wesner, Sedalia, Mo., for appellees.

Brief of Amicus Curiae (The Curators of the University of Missouri) was filed by Jackson A. Wright, T. Richard Mager and Marvin E. Wright, Columbia, Mo.

Before BLACKMUN, MEHAFFY and LAY, Circuit Judges.

BLACKMUN, Circuit Judge.

Alfredo Esteban and Steve Craig Roberds, students at Central Missouri State College, a tax-supported institution at Warrensburg, Missouri, were suspended on March 31, 1967, for two semesters but with the right thereafter to apply for readmission. The two, by their next friends, instituted the present action for declaratory and injunctive relief. The named defendants are the College, its President, and its Board of Regents. The plaintiffs allege, primarily, first, fifth, and fourteenth amendment violations. Judge Hunter, with a detailed memorandum, denied them relief and dismissed their complaint. Esteban v. Central Missouri State College, 290 F.Supp. 622 (W.D.Mo.1968). The plaintiffs appeal.

Jurisdiction is asserted under 28 U.S.C. § 1331 and § 1343 and 42 U.S.C. § 1981 and § 1983. We are satisfied as to federal jurisdiction under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983.

We note initially that, although the two semester suspension period has long since expired, neither plaintiff, up to the time of the oral argument on May 16, 1969, has taken the trouble to apply for readmission. 1

The disciplinary action against the plaintiffs arose out of events which took place on or adjacent to the college campus on the nights of March 29 and 30, 1967. At that time Esteban was on scholastic probation and Roberds was on disciplinary probation. Esteban also had been on disciplinary probation over a knifing incident with a fellow student, but his disciplinary probation had expired a short time before.

Both sides in their appellate briefs specifically adopt findings of fact made by Judge Hunter with respect to these March 1967 events. Accordingly, we set forth certain of those findings here:

'* * * These demonstrations took place at the intersection of the public street adjacent to the school campus and State Highway 13 and overflowed onto the sidewalks and campus. On the evening of March 29, some 350 students were present in the

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mass and on March 30, there were some 600 students included. As a partial result of these two mass demonstrations there was in excess of $600 damages and destruction of college property, including broken school building windows and destroyed shrubbery; eggs were thrown; the Dean of Men, Dr. Chalquist, was hanged in effigy, his 'dummy' torn up and set on fire; traffic was halted and blocked, cars were rocked, and their occupants ordered out into the street. The college president directed a number of his personnel, including Dr. Meverden, to go to the scene to restore order.

'ESTEBAN EVENT:

'* * * The evening of March 29, 2 1967, around 11:30 p.m., he left his dormitory about the time the 'disturbance' had subsided. Some of the students were proceeding along the street from the mass demonstration to their dormitories. Esteban proceeded down the sidewalk to within about 100 feet of the intersection of the scene of the mass demonstration and stayed there awhile. Dr. Meverden, a faculty member, who was seeking to disperse students standing outside their dorms, approached Esteban and asked him to go inside the dormitory. Instead of complying, Esteban asked why, and on again being requested to go in, again asked why. He told Dr. Meverden that he was not in violation of any state, county, or federal law and that he had a right to be out there. Dr. Meverden asked for his student identification card which by college regulation he was required to have in his possession at all times. Esteban said ('in rough words' according to one witness) he did not have it. Nor did he give his name. Dr. Meverden again requested him to go in the dormitory and get off the street. Esteban argued with Dr. Meverden and questioned his authority, saying there were no rules limiting the time men could stay outside the dorms. Shortly, and with the encouragement of other students present, he went into the dormitory. Dr. Meverden also went in and asked Gerald Haddock, the resident assistant of Esteban's dormitory, who Esteban was. Haddock was overheard by Esteban telling Dr. Meverden Esteban's name. Esteban, as Dr. Meverden was leaving, called Haddock a prick and a bastard and told him he 'would not be around very long.' According to Esteban's roommate, Esteban then angrily picked up a waste can and emptied the contents on the floor at the feet of Haddock.

'ROBERDS EVENT:

'Throughout both evenings of the mass demonstrations Roberds was present as a part of the crowd. On March 29, 1967, he arrived at the scene of the demonstration about 10:15 p.m. and returned to his dormitory about 10:45 p.m. On March 30, 1967, he arrived at the scene about 9:30 p.m. and remained until about 10:30 p.m. During the first night, while a part of the gathered crowd, he talked to students who were present in it. Roberds testified that the second evening, also while a part of the crowd at the demonstration, that 'I discussed some of the things that were going on, the rocking of the cars and the dummy. At that time I mentioned my disgust with the college, and we talked, as the people I had talked to had the same feeling.' He saw the dummy brought to the scene of the demonstration; saw it hung, torn up and burned by students in the crowd. He saw the cars approached by the students, saw the cars rocked, saw the attempts to take the occupants out of the cars. He returned to his dormitory after the dispersal of the gathering. He stated he was at the demonstrations each evening simply as a 'spectator', not participating

Page 1081

in any of the acts of violence or destruction.'

Both sides also adopt Judge Hunter's findings as to Roberds' situation prior to the March events:

'Prior to the mass demonstrations, Roberds had been placed on disciplinary probation and furnished a written statement of the terms of that probation. Dean Chalquist also orally explained those terms to him. He and Dean Chalquist conversed relative to his intention to participate in a demonstration. Roberds asked about the possible repercussions of his involvement in (future) demonstrations or disturbances. He was advised 'that any action on your part which may reflect unfavorably upon either you or the institution can be considered grounds for suspension.' Roberds, under date of February 5, 1967, wrote E. J. Cantrell, a Representative from his county in the Missouri Legislature, the following letter:

'* * * I assure you, I do not stand alone in my disgust with this institution. From suppression of speech and expression to ridiculous, trivial regulations this college has done more to discourage democratic belief than any of the world's tyrants. * * * My comrades and I plan on turning this school into a Berkeley if something isn't done."

The procedural history of the case. These plaintiffs, after their suspensions, had filed earlier complaints (277 F.Supp. 649) in the Western District of Missouri against the same defendants. Those suits also had come before Judge Hunter. The court concluded that procedural due process had not been afforded the students and that 'the critical defect in the hearing procedure used by the college was the fact that the person to whom the students were permitted to make their explanation or showing, Dr. Chalquist, was only one of a number of persons on the board which made the recommendation of suspension.' Accordingly, the court directed the defendants to grant each of the plaintiffs a new hearing on such charges as the defendants desired to press. The court prescribed the procedure to be followed. This included a written statement of the charge to be furnished the student on at least 10 days' notice; a hearing before the college's president, as the one person possessing authority to expel or suspend; advance inspection by the student of any affidavits or exhibits which the College intended to submit at the hearing; the student's right to have counsel present with him at the hearing; the right to present his version as to the charge and to make such showing by way of affidavits, exhibits, and witnesses as he desired; the right to hear the evidence against him and to question any witness giving adverse evidence; the president's determination of the facts solely on the evidence presented at the hearing and a statement by him in writing of his findings as to guilt or innocence of the conduct charged and the disposition, if any, to be made by way of disciplinary action; and permission to each side at its own expense to make a record of the events at the hearing. However, the students' request to be reinstated subject to the outcome of the hearing was denied. Esteban v. Central Missouri State College, 277 F.Supp. 649 (W.D.Mo.1967).

Thereafter, and in line with the court's directions, written charges and notice of hearing were served on Esteban and Roberds. The charge against Esteban read:

'You are hereby notified that you are charged with contributing to and participating in an unruly and unlawful mass gathering occurring on the 30th day of March, 1967, at and near Central Missouri State College in that you, the said, Alfredo Esteban, did resist efforts of one Dr. M. L. Meverden in dispersing said mass gathering, failed and refused...

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