Calloway v. Briggs, 20471.

• Citation: 443 F.2d 296
• Decision Date: 24 May 1971
• Docket Number: No. 20471.,20471.
• Parties: Vanessa CALLOWAY, a minor by her mother and next friend, Inez Calloway, Plaintiff-Appellant, v. Paul W. BRIGGS, Superintendent of Schools, Cleveland School District, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

443 F.2d 296 (1971)

Vanessa CALLOWAY, a minor by her mother and next friend, Inez Calloway, Plaintiff-Appellant, v. Paul W. BRIGGS, Superintendent of Schools, Cleveland School District, et al., Defendants-Appellees.

No. 20471.

United States Court of Appeals, Sixth Circuit.

May 24, 1971.

Gregory B. Taylor, Cleveland, Ohio, for plaintiff-appellant; C. Lyonel Jones, Gregory B. Taylor, Nancy Schuster, Cleveland, Ohio, on brief.

Charles F. Clarke, Cleveland, Ohio, for defendants-appellees; William C. Hartman, Charels F. Clarke, George W. Pring, Squire, Sanders & Dempsey, Cleveland, Ohio, on brief.

Before EDWARDS and MILLER, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

EDWARDS, Circuit Judge.

This appeal apparently contains some dramatic background facts, but the legal issue which we have to decide is a quite prosaic one: Did this complaint require decision by a three-judge federal court rather than by a single District Judge? Since we believe that it did, we do not reach the merits of the dispute which gave rise to the case.

The complaint filed in this case alleged in part:

"1. This is an action for declaratory and injunctive relief and for damages pursuant to Title 42, U.S. Code, Section 1983 to secure relief against the enforcement of Section 3313.66 Ohio Revised Code, for the reason that said statute denies the plaintiff due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution in that it authorizes the expulsion of pupils from a public school without notice and a due process hearing prior to such expulsion."

The statute under attack provides as follows:

"The superintendent of schools of a city or exempted village, the executive head of a local school district, or the principal of a public school may suspend a pupil from school for not more than ten days. Such superintendent or executive head may expel a pupil from school. Such superintendent, executive head, or principal shall within twenty-four hours after the time of expulsion or suspension, notify the parent or guardian of the child, and the clerk of the board of education in writing of such expulsion or suspension including the reasons therefor. The pupil or the parent, or guardian, or custodian of a pupil so expelled may appeal such action to the board of education at any meeting of the board and shall be permitted to be heard against the expulsion. At the request of the pupil, or his parent, guardian, custodian, or attorney, the board may hold the hearing in executive session but may act upon the expulsion only at a public meeting. The board may, by a majority vote of its full membership, reinstate such pupil. No pupil shall be suspended or expelled from any school beyond the current semester." Ohio Rev.Code § 3313.66 (Supp.1969).

Appellant does not contest her suspension from a Cleveland high school, but does complain that she was expelled from the Cleveland Public Schools without a hearing, in violation of the United States Constitution's requirement of due process of law. Paragraph 10 of her complaint says:

"Vanessa Calloway was not offered an opportunity, at any time prior to her expulsion, to appear at a hearing to defend herself against the charges raised against her. The plaintiff was afforded no prior notice that the defendant, Paul W. Briggs, was considering expelling her from the Cleveland Public Schools."

In this respect appellant relies primarily upon a Fifth Circuit case wherein that court declared:

"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 to a failure to meet the scholastic standards of the college, depends upon a collection of the facts concerning the charged misconduct, easily colored by the point of view of the witnesses. In such circumstances, a hearing which gives the Board or the administrative authorities of the college an opportunity to hear both sides in considerable detail is best suited to protect the rights of all involved. This is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses, is required. Such a hearing, with the attending publicity and disturbance of college activities, might be detrimental to the college\'s educational atmosphere and impractical to carry out. Nevertheless, the rudiments of an adversary proceeding may be preserved without encroaching upon the interests of the college. In the instant case, the 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. He should also be given the opportunity to present to the Board, or at least to an administrative official of the college, his own defense against the charges and to produce either oral testimony or written affidavits of witnesses in his behalf. If the hearing is not before the Board directly, the results and findings of the hearing should be presented in a report open to the student\'s inspection. If these rudimentary elements of fair play are followed in a case of misconduct of this particular type, we feel that the requirements of due process of law will have been fulfilled." Dixon v. Alabama State Board of Education, 294 F.2d 150, 158-159 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961).

This court cited the Dixon case with approval in Norton v. Discipline Committee of East Tenn. State Univ., 419 F.2d 195 (6th Cir. 1969), cert. denied, 399 U.S. 906, 90 S.Ct. 2191, 26 L.Ed.2d 562 (1970). See also Knight v. State Board of Education, 200 F.Supp. 174 (M.D.Tenn.1961)

Appellee, however, contends that appellant on this record should be held to have had a due process hearing before her expulsion, and hence, that she has no equitable basis for complaint about the disputed Ohio statute. This is, in essence, the view taken by the District Judge who denied the petition to convene a three-judge court and then dismissed the complaint on the merits. The District Judge accepted as true affidavits filed by appellee and found that appellant was accorded a hearing which provided due process under the circumstances involved. Appellee and the District Judge both point to the limited requirements for an administrative due process hearing in a school disciplinary case set forth in Madera v. Board of Education of City of New York, 386 F. 2d 778 (2d Cir. 1967), cert. denied, 390 U.S. 1028, 88 S.Ct. 1416, 20 L.Ed.2d 284 (1968).

In Madera the Second Circuit said:

"The issue is one of procedural `due process\' in its general sense, free from the `specifics\' of the Fifth and Sixth Amendments. What constitutes due process under any given set of circumstances must depend upon the nature of the proceeding involved and the rights that may possibly be affected by that proceeding. Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 6 L.Ed.2d 1230 (1961)." Madera v. Board of Education of City of New York, supra at 780.

Accepting these standards, the basic problem we have on this appeal is that appellant claims that she had no hearing before her expulsion and that the Ohio statute which appears to authorize expulsion before a hearing is a violation of federal due process.

Such allegations do in our view raise substantial federal questions. Whether her allegations are correct, of course, is not before us. Nor was it properly before the District Judge. The sufficiency of the complaint for three-judge jurisdictional purposes must be determined by the allegations of the bill of complaint and not by the way the facts turn out. Mosher v. City of Phoenix, 287 U.S. 29, 30, 53 S.Ct. 67, 77 L. Ed. 148 (1932); Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 854, 78 L.Ed. 1472 (1933); Tyler v. Russel, 410 F.2d 490 (10th Cir. 1969).

The Supreme Court in 1962 stated the function of the District Judge this way:

"We agree with the Court of Appeals that a three-judge court should have been convened in this case. When an application for a statutory three-judge court is addressed to a district court, the court\'s inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute. Those criteria were assuredly met here, and the applicable jurisdictional statute therefore made it impermissible for a single judge to decide the merits of the case, either by granting or by withholding relief." Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794 (1962). (Footnote omitted.)

Of course, an attack upon a state statute as violative of the Federal Constitution calls for hearing and determination before a three-judge court. 28 U.S.C. §§ 2281, 2284 (1964).

In remand the first issue in this case (and possibly the only one which will need resolution, since this is a complaint seeking individual relief) will be whether or not appellant was prior to her expulsion given a hearing which met due process standards in the context of the fact situation involved. It may be quite possible to resolve this issue on a motion for summary judgment filed before the three-judge court. No motion for summary judgment has as yet been filed and, in any event, could not have been determined by the District...