Dickey v. Alabama State Board of Education

• Decision Date: 08 September 1967
• Docket Number: Civ. A. No. 2593-N.
• Parties: Gary Clinton DICKEY, Plaintiff, v. ALABAMA STATE BOARD OF EDUCATION et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

273 F. Supp. 613

Gary Clinton DICKEY, Plaintiff, v. ALABAMA STATE BOARD OF EDUCATION et al., Defendants.

Civ. A. No. 2593-N.

United States District Court M. D. Alabama, N. D.

September 8, 1967.

Morris Dees, Jr., Montgomery, Ala., for plaintiff.

MacDonald Gallion, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., State of Alabama, and James Garrett of Rushton, Stakely & Johnston, Montgomery, Ala., for defendants.

ORDER

JOHNSON, Chief Judge.

Gary Clinton Dickey, a citizen of the United States and a resident of this district, was, for the 1966-67 school year, a student in good standing at Troy State College, a state-operated public institution of higher learning located at Troy, Alabama, which is controlled and supervised by the Alabama State Board of Education.¹ Dickey had earned as of the end of the school year in June, 1967, 147 quarter hours toward a degree in English, which degree requires 192 quarter hours, acccording to Troy State standards. He made known his wishes to attend Troy State College for the school year 1967-68, commencing September, 1967, by giving written notice as required by the institution. On July 18, 1967, Dickey received "Official Notice of Admission" from the college, admitting him to the undergraduate division of said college for the fall quarter 1967. On August 11, 1967, Dickey received a certified letter from Troy State College, signed by the Dean of Men, advising him that the Student Affairs Committee at said college had voted not to admit him "at this time."

Upon the verified complaint filed with this Court on August 16, 1967, and the matters alleged therein, this Court observed that, in cases involving suspension or expulsion of students from a tax-supported college or university, due process requires notice and some opportunity for a hearing before suspension or expulsion. Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961). It was further observed in said order that, upon Dickey's verified allegations of deprivation of constitutionally guaranteed rights and where there is factual evidence of a clear and imminent threat of irreparable injury, judicial action was required. Accordingly, the defendants were, by formal order made and entered on August 17, 1967, directed to rescind the action suspending or expelling Dickey without any notice of hearing and to afford him an administrative hearing as required by the constitutional principle of due process. Following the order of this Court, the defendants on August 21, 1967, caused to be rescinded the action taken by the Student Affairs Committee that resulted in Dickey's suspension, and at that time advised Dickey that he would be afforded an opportunity to be heard "on the charge of insubordination resulting from his refusal to comply with specific instructions of his Faculty Advisor in defiance of such instructions" and that such a hearing would be conducted on Friday, August 25, 1967. A full hearing was afforded Dickey before the Student Affairs Committee on that date. Dickey was present with his attorney, and witnesses appeared and were examined. On August 28, 1967, Troy State College, acting through its Dean of Men, advised Dickey that it was the decision of the Student Affairs Committee that he not be admitted to Troy State College for one academic year (nine months), beginning with the fall quarter of 1967. Upon receipt of this notice, Dickey moved for a preliminary injunction on the theory that his substantive rights of due process had been and were being deprived by reason of his expulsion and/or suspension from Troy State College.² Jurisdiction of this Court was invoked pursuant to 28 U.S.C. § 1331. Due notice of the hearing upon the plaintiff's motion was given the defendants, and the matter is now submitted to this Court upon the pleadings and the evidence taken orally before the Court.

During the early part of the 1966-67 school year, Gary Clinton Dickey, while a full-time student at Troy State College, was chosen as an editor of the Troy State College student newspaper, The Tropolitan. It appears that Dickey was an outstanding student, as he was also chosen as editor-in-chief of the Troy State College literary magazine; was copy editor of the college's annual student yearbook, and was editor-in-chief of the student handbook. He was also a member of a national honorary journalism fraternity.

In early April, 1967, Dr. Frank Rose, President of the University of Alabama, came under attack by certain Alabama state legislators for his refusal to censor the University of Alabama student publication, "Emphasis 67, A World in Revolution." "Emphasis 67," as published for the University of Alabama, served as the program for a series of guest speakers and panel discussions held in March at the University of Alabama. The publication contained brief biographical sketches of the participants, which included Secretary of State Dean Rusk, James Reston of The New York Times, and Professor Robert Scalapino, a leading authority on Asian politics. The theme of the "Emphasis" program was a "World in Revolution." In carrying out this theme, "Emphasis" published excerpts from the speeches of Bettina Aptheker, a Communist who gained notoriety at the University of California, and Stokely Carmichael, President of the Student Nonviolent Coordinating Committee and an incendiary advocate of violent revolution. To give a balanced view of a "World in Revolution," "Emphasis" carried articles by leading anti-revolutionaries such as General Earl G. Wheeler, Chairman of the Joint Chiefs of Staff. After public criticism by certain Alabama legislators, Dr. Rose, in the exercise of his judgment as President of the University of Alabama, took a public stand in support of the right of the University students for academic freedom. Criticism of Dr. Rose for this position by certain state legislators became rather intense. The newspapers widely publicized the controversy to a point that it became a matter of public interest throughout the State of Alabama.

Editor Dickey determined that the Troy State College newspaper, The Tropolitan, should be heard on the matter. He prepared and presented to the faculty adviser an editorial supporting the position taken by Dr. Rose. He was instructed by his faculty adviser not to publish such an editorial. Dickey then took the editorial to the head of the English Department at Troy State College. The head of this department approved the publication of Dickey's proposed editorial. Upon returning to the faculty adviser, Dickey was again informed that the editorial could not be published. Dickey then went directly to the president of the college, Ralph Adams, who also determined that the editorial could not be published. It is without controversy in this case that the basis for the denial of Dickey's right to publish his editorial supporting Dr. Rose was a rule that had been invoked at Troy State College to the effect that there could be no editorials written in the school paper which were critical of the Governor of the State of Alabama or the Alabama Legislature. The rule did not prohibit editorials or articles of a laudatory nature concerning the Governor or the Legislature. The rule has been referred to in this case as the "Adams Rule." The theory of the rule, as this Court understands it, is that Troy State College is a public institution owned by the State of Alabama, that the Governor and the legislators are acting for the owner and control the purse strings, and that for that reason neither the Governor nor the Legislature could be criticized. The faculty adviser furnished substitute material concerning "Raising Dogs in North Carolina" to be published in lieu of Dickey's proposed editorial. Upon being furnished the editorial on the North Carolina dogs, Dickey, as editor of The Tropolitan, determined that it was not suitable, and, acting against the specific instructions of his faculty adviser and the president of the college, arranged to have—with the exception of the title, "A Lament for Dr. Rose"—the space ordinarily occupied by the editorial left blank, with the word "Censored" diagonally across the blank space. In addition to this conduct, Dickey mailed the censored editorial³ to a Montgomery newspaper. All parties in this case concede that the editorial is well written and in good taste. However, the evidence in this case reflects that solely because it violated the "Adams Rule," Dickey's conduct, in acting contrary to the advice of the faculty adviser and of President Adams, was termed "willful and deliberate insubordination." This insubordination is the sole basis...