Yench v. Stockmar, 72-1692.

• Decision Date: 23 August 1973
• Docket Number: No. 72-1692.,72-1692.
• Citation: 483 F.2d 820
• Parties: John David YENCH, Appellant, v. Ted P. STOCKMAR et al., Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

483 F.2d 820 (1973)

John David YENCH, Appellant, v. Ted P. STOCKMAR et al., Appellees.

No. 72-1692.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted March 29, 1973.

Decided August 23, 1973.

Hubert M. Safran, Denver, Colo., for appellant.

Arthur P. Roy, Asst. Atty. Gen. (John P. Moore, Atty. Gen., and John E. Bush, Deputy Atty. Gen., with him on the brief), for appellees.

Before PHILLIPS, SETH and HOLLOWAY, Circuit Judges.

SETH, Circuit Judge (By reassignment from HOLLOWAY, Circuit Judge).

Appellant appeals from a judgment dismissing his action against the Board of Trustees of the Colorado School of Mines, Golden, Colorado, the School itself, its President, its Dean of Students, and student and faculty members of its "ad hoc Student Conduct Committee." Mr. Yench sought a declaratory judgment to determine whether his dismissal from the School violated the provisions of 28 U.S.C. §§ 1343(3) and (4), 2201 and 2202, 42 U.S.C. §§ 1981, 1983 and 1985, and the First, Fifth and Fourteenth Amendments to the Constitution. He also sought to enjoin the defendants from refusing to admit him to classes at the School.

Mr. Yench began his classes at the School in the fall of 1965. During the 1969-70 academic year he was the editor of a student newspaper. On September 23, 1969, there appeared in the paper language which certain members of the School's administration found objectionable. The School's President, and the Dean of Students received complaints concerning the language in the paper from faculty, alumni, trustees, and townspeople. The Dean had a discussion with Mr. Yench concerning the language. On November 14, 1969, President Childs called a meeting at which Dean Smiley, Mr. Yench, and other students on the paper were present to discuss the use of "objectionable" languagein the paper. At the close of this meeting, President Childs advised Mr. Yench that he was on "probation as editor."

On February 2, 1970, the paper published another story containing language which the School's administration also considered objectionable. President Childs called another meeting on February 12, 1970, which was attended by Dr. Childs, Dean Smiley, Mr. Yench, and others from the paper. There is some dispute in the testimony, but the District Court found that, at this meeting, Mr. Yench was notified that he was on "disciplinary probation as a student."

About a week later, President Childs had another meeting with Mr. Yench, attended also by Dean Smiley, at which Mr. Yench was advised that his disciplinary probation as a student would continue until his graduation and that should he violate the School's regulations he would be dismissed. Mr. Yench testified that he could not recall that his probation had been expanded at the February 12, 1970, meeting, and that he did not recall the meeting of February 19, 1970. Relations between Mr. Yench and the School's administration appear to have been tranquil from February 19, 1970, until May 28, 1971.

The School permits students who will complete their degree requirements in the next succeeding summer to participate in the spring commencement as no summer commencement is held. Mr. Yench, who was to have completed his degree requirements in the succeeding summer, sought to participate in the May 28, 1971, degree ceremonies. He appeared in the area where the students were assembling, wearing a "Mickey Mouse" hat instead of the standard mortarboard. Prior to the cememony, and while he was still in the dressing area, a representative of the Dean of Students office asked him to remove the hat. He declined to do so. While seated in the auditorium, Mr. Yench was sent a note by the Dean of Students advising him to remove the hat or discontinue his participation in the ceremonies. He further declined to do so. When he approached the platform, still wearing the hat, his name was not called, and the next student's name was called. Mr. Yench, following the last student, mounted the platform, shook the President's hand as did the other preceding students in the ceremonies, announced his name into the public address system, and returned to his seat. One other student from India who had received prior approval participated in the ceremonies wearing a turban.

About two weeks after the graduation ceremony, the Dean of Students notified Mr. Yench by letter that he was on temporary disciplinary suspension and that a hearing would be held the following day to inquire whether or not he had violated a previously imposed disciplinary probation. Mr. Yench was charged with violating the "Standards and Codes of Conduct" of the Colorado School of Mines as stated in the Student Handbook 1970-71 (page 28), specifically:

(1) Failure to comply with the directions of authorized officials acting in the performance of their duties.

(2) Intentional obstruction and disruption of a university activity.

(3) Disorderly conduct on university-owned property at a university-sponsored function.

(4) Violation of published Colorado School of Mines policy.

(5) Conduct which adversely affected functions of the Colorado School of Mines being conducted in pursuit of its educational purposes and objectives.

The letter also described the time, place, and conduct which allegedly violated the "Standards and Codes of Conduct."

A hearing was held on June 15, 1971, before the ad hoc Committee on Student Conduct after Mr. Yench's request for a continuance was denied. The committee was composed of faculty members and students. Mr. Yench appeared at the hearing with counsel who was not permitted to speak, but was allowed to advise Mr. Yench. The Dean of Students read a statement to the committee listing the charges and briefly describing Mr. Yench's conduct with reference to each charge. This was the only evidence introduced at the hearing against Mr. Yench. Mr. Yench was then permitted to make a statement on his own behalf and to call witnesses; however, he was not permitted to cross-examine the Dean of Students.

On June 21, 1971, the committee issued its conclusions in a memorandum to the Vice President for Academic Affairs in which it found Mr. Yench guilty of charges (1), (3), (4), and (5), and not guilty of charge (2). The committee's findings were sent to Mr. Yench by the Dean of Students, and he was notified, by letter about three weeks later that the School's President, Dr. Childs, had reviewed the committee's findings and determined that Mr. Yench should be dismissed from the School. Accordingly he was dismissed.

The principal argument advanced on this appeal is directed to the procedure, or lack of procedure, followed when Mr. Yench was put on probation, and to the reason why such action was taken. The School had adopted and published in a Student Handbook the procedure for disciplinary proceedings of this nature. It is apparent that the parties did not follow it. We are thus concerned not with the relationship of the rules to due process standards as in Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), but instead with the consequences of a failure to follow the published rules.

The initial disciplinary action was directed to probation of Mr. Yench as editor and subsequently as a student. This action resulted from a series of meetings or discussions directed to disciplinary action at which the Dean of Students, Mr. Yench, and other students on the paper were present. There is no contention that these sessions were not instituted with some disciplinary action in view. In such a situation the student and the faculty were both responsible for conformance to published procedure. However, if neither the student nor the faculty wished to follow the procedure, there was nothing which required that it be done. The machinery was made available by the published rules, but if neither party wanted to avail itself of it, and made no move to do so, there is no...