Boykins v. Fairfield Board of Education

• Decision Date: 12 April 1974
• Docket Number: No. 73-1089.,73-1089.
• Citation: 492 F.2d 697
• Parties: George Robert BOYKINS, etc., et al., Plaintiffs-Appellants, United States of America, Plaintiff-Intervenor, v. FAIRFIELD BOARD OF EDUCATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

492 F.2d 697 (1974)

George Robert BOYKINS, etc., et al., Plaintiffs-Appellants United States of America, Plaintiff-Intervenor, v. FAIRFIELD BOARD OF EDUCATION et al., Defendants-Appellees.

No. 73-1089.

United States Court of Appeals, Fifth Circuit.

April 12, 1974.

Demetrius C. Newton, Birmingham, Ala., Norman Chachkin, Sylvia Drew, Charles S. Ralston, New York City, Orzell Billingsley, Jr., Birmingham, Ala., for plaintiffs-appellants.

Maurice F. Bishop, Birmingham, Ala., Gray, Seay & Langford, Montgomery, Ala., Donald B. Sweeney, Jr., Birmingham, Ala., for defendants-appellees.

Wayman G. Sherrer, U. S. Atty., Birmingham, Ala., Paul F. Hancock, Dept. of Justice, Civil Rights Div., Ed. Sec., Washington, D. C., for other interested parties.

Before GODBOLD, DYER and GEE, Circuit Judges.

GEE, Circuit Judge:

As the Fairfield, Alabama, school case comes before us for the seventh time,¹ the great issues of segregation and integration which were, for our circuit, largely fought out on this very field² have departed like the Captains and the Kings, to be replaced by the petulance which this record reveals and the spectre of resegregation by white flight from the school system. As the trial court observed:

The Court has had many hearings in the Fairfield School Case. When the hearings began there was a white majority in the school system. There is now a black majority and this majority is growing with every term and with every court order. The number of students in the System is dropping every year with the consequent loss of revenue. The cooperation between the races apparently has disappeared. Picayunish claims are being made on the one hand and vigorously contested on the other. If this System is to survive this continued litigation must come to an end. Many of the black students appear to have overlooked the point that the object of attending Fairfield High is to obtain an education and not merely to maintain a point of which an issue may be made.

Appellants are Negro school children who are members of the class who brought this suit originally. They complain of the process by which nine Negro students were punished for misconduct, of the severity of the punishment which some received, and of the refusal of the district court to order the school authorities to grant various demands which the Negro students had sought to enforce by the boycott which led indirectly to their expulsion. We affirm.

Following the most recent remand of this case to the district court, a final plan for the desegregation of the Fairfield schools was put into effect. When school next commenced, however, Negro students conducted a boycott of the school, seeking to enforce demands such as that the School Board:

1. Prohibit the practice of requiring spring pre-registration of classes although, as the court below found, all students, Negro and white, were required to pre-register and no discrimination was shown.

2. Prohibit school authorities from allowing white students to leave campus for lunch since it was generally more convenient for them to go home for lunch than for Negro students.

3. Prohibit the school from serving inferior food to Negro students, although all students eat in the same two cafeterias.

4. Increase the time for lunch, and the time between classes.

5. Order that more Negro students become cheerleaders and members of the band, even though the present selection process was found by the district court to involve no racial discrimination.

6. Order more Negro students to become members of the Pep Club even though membership is open to all students.

7. Require a Negro History Week, and a Black Studies curriculum.

8. Require "sock hops" and school proms.

9. Change the school disciplinary policy which makes it a school offense to be late for class an excessive number of times.

10. Require the school to open the school doors before 7:30 each morning.

11. Order teachers at the Fairfield School System to refrain from using profanity.

12. Allow Negro students to attend dancing class without paying the fee required of other students.

13. Require the school officials to distribute textbooks which are in better condition.

This boycott, commenced in late October and carried over into early November, resulted in the suspension of over 100 students, all but three of them Negro, from school. A series of motions by counsel for plaintiffs followed, seeking enforcement of such demands as the above and reinstatement of the suspended students. On November 9, 1972, the court below entered its order requiring the readmission of the suspended students and setting a hearing on the motion seeking review of the demands upon which the boycott had been based. The ordered readmission was contingent upon termination of the boycott, return to class by all students, and an end of disruptive activities.

Most students returned to class the next day. Almost immediately, however, the same sort of difficulties which had plagued the school term recommenced. Clarence Young, one of the students who was later expelled, intervened in a trivial incident and undertook to instruct a Negro faculty member as to the proprieties of his behavior. An altercation between them followed. Young berated the instructor, using such epithets as "Uncle Tom" and "half whitey." He was taken to the principal's office, and word of the incident immediately spread through the school. Various students, including the other expellees, left class without permission. Some, urging others to join them, went from classroom to classroom calling for students to leave classes to participate in a meeting to discuss what should be done to rescue Clarence Young. Many students left class, the police were called, and attempts were made to persuade the students to return to class without much success. School was therefore closed in the middle of the morning and all students sent home.

Twenty-one students were subsequently sent notices of suspension from school for their participation in the disruptions of November 10 and were also informed that individual hearings would later be held by the Board of Education to decide whether they should be reinstated. These hearings were held on November 25, 1972. As a result of the hearings, four of the students were immediately readmitted, eight were readmitted after a week's further suspension, one was suspended for the remainder of the semester, and eight were expelled. The record indicates that, as a result of the expulsion, difficulty was later encountered by the expelled students in obtaining entrance to other public schools. As of a hearing held by the district court in March of 1973, none of these students had reapplied to the Fairfield School Board, so that what the consequences of such a reapplication would have been are unknown. However, at oral argument the court was advised by counsel for plaintiffs that all but one of these students were attending school somewhere as of that time.

The procedures which were followed in the hearing, and of which complaint is here made, were outlined by counsel for the Board as follows:

Let me ask you if this procedure will be agreeable. We will call each student from outside into the conference room with his parent or guardian. We will explain to the child what he has been charged with, and ask him if it is clear in his mind what school rules he has violated. If he has no questions, we will then present the evidence against the child to support the accusations. Having done that, we will ask the student if he has anything to say to contradict the charges that have been made against him, or the evidence to support charges that have been made against him. After that we will—I think the Board should ask the School Administrator that is presenting the evidence any— and the child—any questions that you think are relevant in order to resolve any conflict. We\'re going to accord Mr. Newton the privilege of cross-examination. It is not a right that he can insist on, but we are showing him that courtesy. After the Board, after the school and the child have presented whatever evidence they want, then we will excuse the child and go on to the next student. Is that an agreeable process?

Each student was represented by the same counsel, Mr. Demetrius C. Newton, and the only objection to the suggested procedure voiced by him was a desire on his part to himself determine and declare whether the student understood the charge against him rather than have the student make and state his determination of that matter.³ The suggested procedures were uniformly followed in conducting the Board's hearings.

Appellants principally complain that much of the evidence upon which the expulsions were based consisted of what was technically hearsay. This is undoubtedly correct. The main witness against the students was the school principal, Mr. Hershell Turner, who had investigated the charges against the students and who presented the results of his investigation of each incident to the School Board. In some instances Turner had first-hand knowledge, and in others his testimony was based on attendance records and other reports which could likely have been qualified under exceptions to the hearsay rule; but in main it consisted of reading or reciting statements made by teachers in response to his inquiries.

As to this contention, appellants correctly concede that the present rule of this circuit in school discipline cases affords them no comfort. "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." Dixon v. Alabama State Board of Education, 294 F.2d 150, 159 (5th Cir. 1961). They contend, however, that we should read the Supreme Court's Goldberg⁴ and Morrissey⁵ decisions as expanding the requirements of Dixon to add to them universal confrontation and cross-examination of witnesses, especially where severe punishments are meted out on...