French v. Bashful

• Decision Date: 18 September 1969
• Docket Number: Civ. A. No. 69-1877.
• Citation: 303 F. Supp. 1333
• Parties: Lynn D. FRENCH, suing through his parent James H. French; David C. Humbles, III; Keith W. Medley, suing through his parent Alfred Medley, Sr.; Vallery Ferdinand; Lawrence J. Terrel; Edward Merricks; Spencer Williams; Gray Brown; Larry Jones; and Blake L. Porter v. Emmett W. BASHFUL, in his capacity as Dean of Southern University in New Orleans; G. Leon Netterville, in his capacity as President of the Southern University System; and Southern University in New Orleans.
• Court: U.S. District Court — Eastern District of Louisiana

303 F. Supp. 1333

Lynn D. FRENCH, suing through his parent James H. French; David C. Humbles, III; Keith W. Medley, suing through his parent Alfred Medley, Sr.; Vallery Ferdinand; Lawrence J. Terrel; Edward Merricks; Spencer Williams; Gray Brown; Larry Jones; and Blake L. Porter v. Emmett W. BASHFUL, in his capacity as Dean of Southern University in New Orleans; G. Leon Netterville, in his capacity as President of the Southern University System; and Southern University in New Orleans.

Civ. A. No. 69-1877.

United States District Court E. D. Louisiana, New Orleans Division.

September 18, 1969.

Robert Glass of New Orleans Legal Assistance Corp., New Orleans, La., for plaintiffs.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Second Asst. Atty. Gen., Harry H. Howard, Asst. Atty. Gen., State of Louisiana, New Orleans, La., for defendants.

COMISKEY, District Judge.

The ten plaintiffs in this suit were students at Southern University in New Orleans (hereafter referred to as SUNO) during the Spring, 1969 semester. As a result of their alleged participation in campus disturbances some of the plaintiffs were expelled from SUNO, while others were suspended. The defendants to this suit are Emmett W. Bashful, the Dean of SUNO, G. Leon Netterville, the President of the Southern University System, and SUNO.

Plaintiffs bring this action under the Civil Rights Act, 42 U.S.C. § 1983, asking that this Court grant an injunction requiring, inter alia, that defendants reinstate plaintiffs as students in good standing at SUNO. Plaintiffs also ask that this Court issue a declaratory judgment under 28 U.S.C. § 2201 and § 2202 decreeing that the suspensions and expulsions of the plaintiffs are unconstitutional. In connection with the request for injunctive relief, defendants admit that the plaintiffs are suffering an irreparable injury, if they were illegally prohibited from attending SUNO.

Plaintiffs' first cause of action is based on the allegation that they were denied procedural due process at the hearings held before the University Discipline Committee which ultimately resulted in the expulsions and suspensions complained of in this suit. There were two sets of hearings held to consider plaintiffs' alleged misconduct. The first set of hearings was held on May 9, 1969, to consider charges which stemmed from the alleged takeover of the administrative offices of the university by some of the plaintiffs and others on May 5, 1969. These hearings were concerned with the plaintiffs Lynn D. French, David C. Humbles III, Keith W. Medley, Vallery Ferdinand, Blake Porter and Spencer Williams. These plaintiffs were notified by letters dated May 8, 1969, of the May 9 hearings before the Discipline Committee. These six plaintiffs retained attorneys to represent them at these hearings, and all asked the Discipline Committee to permit them to be represented by these attorneys at the hearings. Two attorneys retained by plaintiffs also asked the Discipline Committee to permit them to represent plaintiffs at the hearings and for more time to prepare their case. But these requests were refused, and the plaintiffs had to defend themselves before the Discipline Committee without the assistance of their retained legal counsel.

After the hearings the Discipline Committee voted to place plaintiffs French, Humbles, Medley and Ferdinand on strict probation for a period of at least six months and not more than one year. They were warned by letter dated May 10, 1969, that "Should you violate any University regulations during this period, you will automatically be expelled from Southern University in New Orleans." Plaintiffs Porter and Williams were cleared of the charges brought against them and were not assessed with any penalties.

More campus disturbances soon followed, and plaintiffs Humble, Medley and Ferdinand were expelled by letter dated May 16, 1969, for violating their probations when they occupied the Dean's office. In a letter dated May 19, 1969, plaintiff French was expelled for violating his probation by participating in a sit-in on the first floor of the Administration Building and inducing others to commit acts of violence and destruction.

Disciplinary action was also taken against the other plaintiffs in this case as a result of the campus disturbances following the May 9 hearings. Plaintiffs Lawrence J. Terrel and Spencer Williams were summarily placed on strict probation by letters dated May 16, 1969. Subsequently, by letters dated May 19, 1969, Terrel was suspended indefinitely and Williams was expelled. Plaintiff Blake L. Porter was placed on strict probation by letter dated May 16, 1969, and he was expelled by letter dated May 23, 1969. Plaintiff Edward Merricks was suspended indefinitely by letter dated May 27, 1969; he had not previously been placed on probation. Plaintiff Gary Brown was also suspended indefinitely by letter dated May 19, 1969 without having previously been placed on probation. Plaintiff Larry Jones was expelled by letter dated May 23, 1969, although he, too, had not previously been placed on probation.

All of these six plaintiffs — Terrel, Williams, Porter, Merricks, Brown and Jones — were given an opportunity to defend themselves against charges stemming out of these campus disturbances at hearings held on June 2, 1969, for the purpose of reviewing the actions already taken against these students. All of these plaintiffs were notified of the June 2 hearings by letters dated May 26, 1969, with the exception of plaintiff Merricks, who was notified in a letter dated May 27, 1969. At the June 2 hearings the Discipline Committee again refused to permit the participation in such hearings by retained legal counsel. Following these hearings Dean Bashful confirmed the penalties imposed on all of these defendants prior to such hearings.

It is well established in this circuit that constitutional due process requires notice and some opportunity for hearing before students at a tax-supported college may be expelled for misconduct. In the leading case on this point, Dixon v. Alabama State Board of Education, 294 F.2d 150, 158-159 (5th Cir. 1961), the court set forth these guidelines which it thought colleges should follow in misconduct expulsion cases:

"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."

Recently, in Wright v. Texas Southern University, 392 F.2d 728, 729 (5th Cir. 1968), the Fifth Circuit reaffirmed the guidelines set out in Dixon and again pointed out that the emphasis in cases of this type is on the fairness of the expulsion or suspension proceedings, when it said:

"In Dixon v. Alabama State Board of Education, 5 Cir. 1961, 294 F.2d 150, this Court held that in matters of disciplinary action a student attending a tax supported institution of higher learning is entitled to notice that he is charged with misconduct, including a statement of the charges alleged in justification of anticipated action against him. Moreover, the student must be given the names of the witnesses against him and must be informed of the nature of their proposed testimony. Lastly, he should be given the opportunity to present his defense, orally or in writing, after which the findings of the disciplinary body should be presented in a report available for his inspection.

"This does not mean that the student is entitled to the formality of a trial, in the usual sense of that term, but simply requires that he must be given a fair and reasonable opportunity to make his defense to the charges and to receive such a hearing as meets the requirements of justice, both to the school and to himself. In short, the student at the tax supported institution cannot be arbitrarily disciplined without the benefit of the ordinary, well recognized principles of fair

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