Joyner v. Whiting, C-227-D-71.
| Decision Date | 07 April 1972 |
| Docket Number | No. C-227-D-71.,C-227-D-71. |
| Citation | 341 F. Supp. 1244 |
| Parties | Johnnie Edward JOYNER, Individually and as Editor and Chief of The Campus Echo, Harvey Lee White, Individually and as President of the Student Government Association, and both of them in behalf of all persons similarly situated, Plaintiffs, v. Albert N. WHITING, President of North Carolina Central University, Individually and in his official capacity, Defendant. |
| Court | U.S. District Court — Middle District of North Carolina |
James V. Rowan, and David B. Hough, Durham, N. C., and Norman B. Smith, Greensboro, N. C., for plaintiffs.
Burley B. Mitchell, Jr., and Charles A. Lloyd, Raleigh, N. C., for defendant.
On September 24, 1971, the defendant herein, Albert N. Whiting, President of North Carolina Central University, at Durham, North Carolina, tentatively determined that the University should no longer collect mandatory student fees for the purpose of allocating such fees to the student newspaper, The Campus Echo, and thereby no longer require all students at North Carolina Central University to subscribe to and support the student newspaper. The events leading up to this action by the defendant, which action is herein attacked by the plaintiffs, appear thus to this Court.
On September 15, 1971, one of the plaintiffs herein, Johnnie Edward Joyner, Editor-in-Chief of The Campus Echo informed Mrs. Jean N. Scales that no white or other non-Negro would be able to serve on the staff of The Campus Echo. This information was immediately transmitted to the defendant Whiting.
On September 16, 1971, the plaintiff Joyner published and circulated an issue of The Campus Echo, dated September 16, 1971, and identified as Vol. 1, No. 1. On the second page thereof, this Court finds the following statement:
"ATTENTION Beginning next issue The Campus Echo will not run white advertising."
On the first page is found an article expressing some considerable dissatisfaction at and opposition to the increasing number of whites and other non-Negro students enrolled at the North Carolina Central University. On the last page is found an article concerning student reaction to the increase of non-Negro students, all of which opinions expressed a strong opposition to the integration of the North Carolina Central University.
On September 24, 1971, the defendant Whiting issued a Memorandum in which he expressed disagreement with the policies of The Campus Echo, and stated in part that North Carolina Central University "... will not extend recognition to or knowingly affiliate with and condone any group, organization, or association, espousing policies which discriminate on such bases."1
On September 24, 1971, the defendant Whiting transmitted to one of the plaintiffs herein, Johnnie Edward Joyner, a letter in which he stated that The Campus Echo did not either meet standard journalistic criteria nor represent fairly the full spectrum of views on the campus of North Carolina Central University. Therein also he informed the plaintiff Joyner that funds for The Campus Echo would be withheld pending agreement as to standards to which the publication would adhere.
On October 1, 1971, the plaintiffs herein commenced this action, seeking to enjoin the defendant Whiting from failing to support financially The Campus Echo.
On November 8, 1971, the defendant announced the permanent and irrevocable termination of compulsory funding of The Campus Echo, in accordance with his tentative decision so to do on September 24, 1971. This decision was reached, it would appear, as a resolution of the same dilemma which now presents itself to this Court.
The Constitution of the United States, in the Fourteenth Amendment thereto, provides that no citizen shall be denied the equal protection of the laws. The Civil Rights Act of 1964, Title VI, 42 U.S.C. § 2000d further provides that:
"No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
North Carolina Central University is an Institution of Higher Education established under and operating pursuant to G.S. § 116-44.10. The governing authority of North Carolina Central University is appointed in accordance with the General Statutes of North Carolina. North Carolina contributes both tax revenues and escheats to North Carolina Central University, and authorizes the collection of tuition and fees from students. There can be no doubt that North Carolina Central University is an agency of North Carolina, and, as such, is subject to the provisions of the Constitution of the United States. Further, North Carolina Central University receives financial aid from the United States, in accordance with several Acts of Congress. In order to continue receiving funds, and to escape liability for those funds previously received, North Carolina Central University cannot directly or indirectly, overtly or covertly, discriminate on the ground of race, color, or national origin, in determining to whom and to what extent the several various benefits of North Carolina Central University shall be extended.
Any organization, association or group which has been established under the authority of North Carolina Central University and pursuant to its regulations, and which has received financial aid and support from North Carolina Central University, whether from funds received from North Carolina directly, out of taxes and escheats, or from funds collected by North Carolina Central University under the authority of North Carolina, or both, is an agency of North Carolina Central University, and, therefore, indirectly, of North Carolina itself. The Campus Echo was established by North Carolina Central University, and, until September 24, 1971, was financially supported by North Carolina Central University. It received a portion of the student fee which North Carolina Central University required each student to pay as a prerequisite to registration. The Editor-in-Chief received a salary, though it is not clear whether this is paid from funds received through the student fee or from funds received through tuition and the contributions of North Carolina. The Campus Echo, as a matter of law, is an agency of North Carolina Central University and of North Carolina. The Editor-in-Chief of The Campus Echo is a salaried official of both North Carolina Central University and of North Carolina.
As set out above, the law is clear: No State or Agency of a State may discriminate upon the basis of race, color, or national origin. No Institution of Higher Education, established and financially supported by a State, may use racial criteria in its employment practices, in its admission policies, or in its academic program. No agency of such an Institution, nor any other official body, may use racial criteria. United States v. Georgia, et al., Civil No. 12,972 (N.D.Ga.1969); Georgia, et al. v. Mitchell, et al., Civil No. 265-70 (D.D.C. 1970).
Furthermore, the State of North Carolina has been for the past eighteen years under an affirmative duty to disestablish the dual system of education under which it had operated for almost a century. See Swann v. Charlotte-Mecklenburg County Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed. 2d 554 (1971); Green v. School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). This duty extends to the elimination of racially identifiable Institutions of Higher Education as well as the elimination of racially identifiable institutions of primary and secondary education. The State of North Carolina may not do indirectly what it may not do directly, for acts generally constitutional are invalid when done to accomplish an unconstitutional end. See Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). Neither the State of North Carolina nor any of its officials may discourage persons interested in attending a certain institution from attending such institution on account of race, color, or national origin. This prohibition extends not only to direct failure to admit or to admit upon equal standards, but also to official and unofficial state supported harassment, discourtesy, and indicia of unwelcome at particular Institutions of Higher Education.
This Court finds that The Campus Echo, an agency of the State of North Carolina, did consistently and intentionally attempt to discourage the attendance of persons of non-Negro race from attending the North Carolina Central University, by a program of harassment, discourtesy, and indicia of unwelcome. The Campus Echo was as intent upon maintaining North Carolina Central University as a "black school" as were others in times past upon maintaining the University of North Carolina as a "white school." The State of North Carolina may no more lawfully require the financial support of The Campus Echo then it may contribute lawfully to certain forms of symbolic free speech by the Ku Klux Klan. Had the State of North Carolina and the North Carolina Central University continued such support of The Campus Echo, such support would have been unlawful as contrary to 42 U.S.C. § 2000d and to the Fourteenth Amendment to the Constitution of the United States.
However, the First Amendment to the Constitution of the United States explicitly guarantees that, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The Fourteenth Amendment to the same Constitution has been construed to extend this particular prohibition to the states.
The restrictions placed upon the Congress and the states by...
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Joyner v. Whiting
...of the university, and his successors in office, from granting future financial support to any campus newspaper. Joyner v. Whiting, 341 F. Supp. 1244 (M.D.N.C.1972). Joyner and White assert that the decree violates the First and Fourteenth Amendments. President Whiting urges affirmance on t......
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...activities at state universities constitute state action for the purpose of civil rights actions was set forth in Joyner v. Whiting, 341 F.Supp. 1244 (M.D.N.C.1972), rev'd on other grounds, 477 F.2d 456 (4th Cir. 1973). The relevant language in that opinion appearing below dictates the resu......