French v. Bashful
| Decision Date | 27 April 1970 |
| Docket Number | No. 28519.,28519. |
| Citation | 425 F.2d 182 |
| Parties | Lynn D. FRENCH, suing through his parent James H. French, et al., Plaintiffs-Appellants, v. Emmett W. BASHFUL, in his capacity as Dean of Southern University in New Orleans, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert Glass, New Orleans, La., for appellant.
Jack P. F. Gremillion, Atty. Gen., Harry P. Howard, Asst. Atty. Gen., William P. Schuller, 2nd Asst. Atty. Gen., New Orleans, La., for appellee.
Before JOHN R. BROWN, Chief Judge, and MORGAN and INGRAHAM, Circuit Judges.
Rehearing Denied and Rehearing En Banc Denied April 27, 1970.
On February 17, 1970, this court denied the appellees' motion to dismiss this appeal, but granted counsel an extension of time in which to file reply briefs. Counsel were also ordered to file a statement of facts as to actions taken subsequent to the entry of the decree under review, accompanied by affidavits and counter-affidavits, in order that the court might be apprised of the pertinent facts upon which a determination as to mootness could be made. Those briefs and affidavits have been filed and forwarded to the court, and on the basis of those papers and the briefs previously on file, we reconsider the motion to dismiss the appeal.
The appellants (students) complain of their suspension from Southern University in New Orleans following hearings held before the Discipline Committee in May and June of 1969. The students filed this action on August 15, 1969, alleging (1) that they were denied procedural due process before the University Discipline Committee hearings, and prayed for injunctive relief pursuant to 42 U.S.C. Sec. 1983; and (2) that the suspensions were unconstitutional because the students were charged under regulations which were vague, overbroad, and did not cover the activities for which they were charged, and prayed for a declaratory judgment under 28 U.S.C. Secs. 2201, 2202.
As to the first cause of action, it is clear that the issue of procedural due process is moot. The district court held that the May-June hearings were invalid and ordered new hearings. French v. Bashful, 303 F.Supp. 1333 (E.D.La. 1969). The records reveal that new hearings were held in October and November of 1969, and that on December 2, 1969, the Discipline Committee again suspended or expelled a number of the plaintiffs. A motion to the district court for further injunctive relief, based upon the latter hearings, was denied. However, the court suggested a separate suit, and the plaintiffs filed that suit on February 2, 1970. On February 17, 1970, the court granted the requested injunction and ordered new hearings.
Since a third set of hearings is now in the offing, and since the plaintiffs have been granted the requested injunctive relief at each stage, the question of whether the first hearings were procedurally defective is not only moot, it is nonappealable — the plaintiffs are not parties aggrieved, and the defendants admit the illegality of those hearings.
With regard to the second cause of action — the declaratory judgment issue — there is nothing in the record to indicate that the district judge has reconsidered his determination on the merits of the second cause of action that the regulations are not unconstitutionally vague. That issue is therefore ripe for appeal.
However, the court does not believe that the interests of justice would be served by considering that issue at this time. The decision of the Discipline Committee following the third set of hearings will have a direct bearing on whether the plaintiffs will wish to pursue the vagueness issue, for the obvious reason that the Committee might revoke the suspensions. But even if it does not, the district court might find (in the separate suit) that the students were accorded procedural due process, thus making...
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Press v. Pasadena Independent School District
...398 U.S. 965, 90 S.Ct. 2169, 26 L.Ed.2d 548 (1970); French v. Bashful, 303 F. Supp. 1333 (E.D.La.1969), aff'd on other grounds 425 F.2d 182 (5th Cir. 1970); Buttny v. Smiley, 281 F.Supp. 280 (D. Col.1968); Jones v. State Board of Education, 279 F.Supp. 190 (M.D.Tenn. 1968), aff'd 407 F.2d 8......
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Papish v. Board of Curators of University of Missouri, 71-1338.
...and allegedly overbroad student conduct regulations see, e. g., French v. Bashful, 303 F.Supp. 1333 (ED La.1969), aff'd per curiam, 425 F.2d 182 (CA5 1970) and Barker v. Hardway, 283 F.Supp. 228 (SD W.Va. 1968), aff'd per curiam, 399 F.2d 638 (CA4 1968) certiorari denied 394 U.S. 905, 89 S.......
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Duke v. North Texas State University
...92 L.Ed. 1010 (1948) (no denial of due process when commission expressed a view on the issue in advance of the case); French v. Bashful, 5 Cir., 1970, 425 F.2d 182, 184; Wasson v. Trowbridge, 2 Cir., 1967, 382 F.2d 807, 813; Jones v. State Bd. of Educ., M.D.Tenn., 1968, 279 F. Supp. 190, 20......
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Pervis v. LaMarque Independent School District
...the Court of Appeals for this Circuit, in recent school cases, has tacitly approved interims ranging from six months, French v. Bashful, 425 F.2d 182 (5th Cir. 1970), to two years, Lucas v. Chapman, 430 F.2d 945 (5th Cir. Accordingly, judgment shall be entered for defendants. The foregoing ......