Bistrick v. University of South Carolina

• Decision Date: 23 February 1971
• Docket Number: Civ. A. No. 70-905.
• Citation: 324 F. Supp. 942
• Court: U.S. District Court — District of South Carolina
• Parties: John Francis BISTRICK, Jr., a Minor over the age of Fourteen (14) years, by his Duly Appointed and Acting Guardian ad Litem, John Francis Bistrick, Sr., Plaintiff, v. The UNIVERSITY OF SOUTH CAROLINA, Defendant.

324 F. Supp. 942

John Francis BISTRICK, Jr., a Minor over the age of Fourteen (14) years, by his Duly Appointed and Acting Guardian ad Litem, John Francis Bistrick, Sr., Plaintiff, v. The UNIVERSITY OF SOUTH CAROLINA, Defendant.

Civ. A. No. 70-905.

United States District Court, D. South Carolina, Columbia Division.

Heard December 17, 1970.

Decided February 23, 1971.

Patrick E. Treacy, Columbia, S. C., for plaintiff.

Michael W. Tighe, Asst. Atty. Gen. of South Carolina, Columbia, S. C., for defendant.

ROBERT W. HEMPHILL, District Judge.

Defendant moves for summary judgment under Rule 56, Federal Rules of Civil Procedure. The motion is supported by (1) an affidavit of the Secretary of the Board of Trustees of the University of South Carolina; (2) letters of various personnel involved in the controversy; (3) the minutes of a hearing (In Re: John Bistrick) held before the Board of Trustees of the University of South Carolina on August 25, 1970, (4) certain exhibits attached to pleadings, or introduced without objection; and (5) contents of the official file in the case.

This action was commenced October 12, 1970, upon the filing of the Complaint¹, which seeks: (1) an Order requiring the University of South Carolina to readmit John F. Bistrick, Jr., as a student, (2) a declaratory judgment "defining his rights, duties and responsibilities under the annexed rules and regulations in the light of his constitutional guarantees and his rights under the 1871 Civil Rights Act," and, (3) other relief. Former student Bistrick was permanently suspended as a result of a hearing held before the University Board of Trustees on August 25, 1970. Defendant filed its Answer on or about November 2, 1970, issued a request under Rule 36 that the plaintiff admit the genuineness of the transcript of proceedings held before the full Board of Trustees on August 25, 1970, a copy of which was attached to the request, and thereafter, on December 10, 1970, served and filed its Motion for Summary Judgment in this case.

The Answer sets forth defendant's claim as to the factual background, which differs in some particulars from the plaintiff's account as set forth in the Complaint, and, in general, denies that Bistrick, Jr., has been denied any rights guaranteed to him by the Constitution of the United States, the laws of South Carolina, or the rules and regulations of the University. The Motion for Summary Judgment relies on the second defense of the Answer, in which it is alleged that any errors or omissions of constitutional import which might have occurred prior to August 25, 1970, were cured by the de novo hearing before the full Board of Trustees on that date. Defendant does not admit that any right guaranteed to Bistrick, Jr., was denied him at any stage; rather, the defendant takes the position that, for purposes of the motion, if any rights were denied Bistrick, Jr., such denial is irrelevant as a matter of law, and was cured by the August 25, 1970, de novo hearing; further, that as a result of the complete cure of the deficiencies, if any, the defendant is entitled to judgment as a matter of law under Rule 56.

The basic facts surrounding this controversy are uncontroverted. On the afternoon of May 7, 1970, Bistrick, Jr., was present in the Russell House, together with other students and nonstudents. Upon being ordered to leave the building, he declined to do so, even though he was advised that if he did not vacate the building he would be suspended from the University. Thereafter, he was advised by University officials that those who had not vacated the building were suspended and would be arrested if they did not depart. Subsequently, defendant and approximately 40 others were arrested and removed from the Russell House by police officers. Those among the group who were students were subsequently advised in writing of their suspension, and that they would be afforded a hearing on or about May 11, 1970.

The University has stated its intention to offer evidence at the ultimate trial of this matter, if the motion is denied, to establish that persons unknown had agreed to and did, on May 7, 1970, take over the Russell House² and that such persons ousted from that building the officials charged with its custody and control, secured certain of the doors, and materially and substantially interferred with the normal functions of the building. The University determined that it was necessary to remove all students and non-students from the building in order to re-establish University control over the building. There is no evidence establishing that Bistrick, Jr., locked the doors, ordered the administrators to leave or was otherwise involved, except to the extent that he refused to vacate the building when ordered to do so as a part of what the University contends was a reasonable method of reasserting its control over its building. It is this failure to depart which the University has maintained constitutes interference with the normal operations of the Russell House by preventing the administration from re-establishing its control over the building.

It is undisputed that Mr. Bistrick appeared before a Special Hearing Committee established by the Board of Trustees of the University (See Exhibit 1 to the Answer) on May 11, 1970, and on June 12, 1970, and that the judgment of the committee was that he be permanently suspended from the University of South Carolina.

Mr. Bistrick was advised by William H. Patterson, Provost of the University of South Carolina and Secretary of the Board of Trustees, by certified letter dated June 16, 1970, that the Special Hearing Committee had determined that he should be permanently suspended from the University as a result of the hearings held on May 11, 1970, and June 12, 1970. He was advised by certified letter dated August 5, 1970, that he could appeal to the Board of Trustees if he indicated his desire to do so on or before August 15, 1970. Copies of this letter were also dispatched to Patrick E. Treacy and Jack F. McGuinn, Mr. Bistrick's counsel. Mr. Bistrick indicated his desire to appeal on August 14, 1970. Thereafter, on August 18, 1970, Mr. Bistrick was advised by letter that his appeal would be heard by the Board of Trustees on August 25, 1970, at 11:00 a. m. in the Board Room of the Administration Building of the University of South Carolina, at Columbia, South Carolina, and that the proceedings before the Board of Trustees would be de novo rather than upon the record of any proceedings theretofore held. (Affidavit of William H. Patterson, dated November 9, 1970, attached to Motion for Summary Judgment.)

By the sheet summarizing the position of the University, enclosed with the August 18, 1970, letter (attached to the transcript as Exhibit 4), Mr. Bistrick was advised that his conduct was characterized as interference with the normal operation of the Russell House, and that the University considered Section 16-551³ of the South Carolina Code of Laws when drafting the charge. Additionally, the August 18, 1970, letter included a proposed written stipulation describing with particularity the facts which the University would seek to establish, by stipulation or otherwise, at the hearing.

At 11:15 a. m., August 25, 1970, Mr. Bistrick's hearing before the full Board of Trustees commenced, with Mr. Bistrick present, together with his father and his attorney, Patrick E. Treacy. A full transcript of this proceeding is a part of the record before this court. Counsel for Bistrick refused to enter into the stipulation posed in the August 18, 1970 letter from William H. Patterson. The Board of Trustees received into evidence statements of various Russell House officials dated May 8, 1970, May 19, 1970, and June 10, 1970, which in general described the events of May 7, 1970, but did not specifically mention Mr. Bistrick. In addition, the University heard testimony from J. J. Nix, Assistant Dean of Men who testified that he was present at the Russell House on the afternoon of May 7, 1970, and that he had read a statement at 3:45 p. m. on that date asking those within the building to leave it. He testified as to the general conditions prevailing at the Russell House on May 7, 1970, and that he observed John F. Bistrick, Jr., sitting in front of the information desk at the Russell House.

He also testified that he read an announcement over the building's public address system which included the following language: "You are asked to cease and leave these premises immediately. If you do not do so, you will be temporarily suspended from the University and the reason therefor will be immediately reported to the University's Committee on discipline for appropriate action." At approximately 4:00 p. m. Dean Nix read another statement advising those who had not left that they were suspended and that if they did not immediately vacate the building, they would be evicted as trespassers. Dean Nix was present on at least two occasions when law enforcement officials asked those students to leave who had not departed, in the presence of Mr. Bistrick who declined to leave and was arrested. Dean Nix was cross-examined by Mr. Treacy on behalf of Mr. Bistrick.

The assembled members of the Board of Trustees heard testimony from SLED Agent Walter G. Powell who testified that he arrived at the Russell House at approximately 5:10 p. m. with other police officers and that at approximately 5:20 p. m. he observed a group of people, including Mr. Bistrick, seated within the Russell House lobby.

They were asked to leave by police officers and told that they would be arrested if they did not leave. In a few minutes they were again asked to leave by Chief J. P. Strom of the State Law Enforcement Division, and those who did not leave, including Bistrick, were arrested and removed.

Mr. Bistrick was advised by counsel to the Board that Mr. Bistrick could testify before the Board if he wished. He declined to testify or to...