Speake v. Grantham

• Decision Date: 23 September 1970
• Docket Number: Civ. A. No. 2420.
• Parties: Phillip R. SPEAKE, Earnest Gregory, and Milton Forte, Jr., a Minor, by His Father and Next Friend, Milton Forte, Sr., Plaintiffs, v. Rader GRANTHAM, Dean of Men, University of Southern Mississippi, William D. McCain, President of University of Southern Mississippi, University of Southern Mississippi, Board of Trustees of Institutions of Higher Learning, W. V. Oubre, M. M. Roberts, and E. E. Thrash, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

317 F. Supp. 1253

Phillip R. SPEAKE, Earnest Gregory, and Milton Forte, Jr., a Minor, by His Father and Next Friend, Milton Forte, Sr., Plaintiffs, v. Rader GRANTHAM, Dean of Men, University of Southern Mississippi, William D. McCain, President of University of Southern Mississippi, University of Southern Mississippi, Board of Trustees of Institutions of Higher Learning, W. V. Oubre, M. M. Roberts, and E. E. Thrash, Defendants.

Civ. A. No. 2420.

United States District Court, S. D. Mississippi, Hattiesburg Division.

September 23, 1970.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

R. M. Sullivan, Hattiesburg, Miss., for plaintiffs.

M. M. Roberts, Hattiesburg, Miss., James E. Rankin, Asst. Atty. Gen. of Mississippi, Ed Davis Noble, Special Asst. Atty. Gen., Jackson, Miss., for defendants.

MEMORANDUM OPINION

NIXON, District Judge.

The three named plaintiffs, Phillip R. Speake, Earnest Gregory and Milton Forte, Jr., a minor, filed their verified Complaint¹ for injunctive relief against the defendant individually and in their official capacities, invoking the jurisdiction of this Court under 28 U.S.C. Sections 1331 and 1343 and under the First, Fifth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. Section 1983. Subsequently, the plaintiff, Richard A. Peters' Motion for Permission to Intervene as a party plaintiff pursuant to Rule 24(b) (2), F.R.Civ. P., was granted by this Court on August 11, 1970.

All four of the plaintiffs were students attending the defendant school, The University of Southern Mississippi. Speake and Forte are resident citizens of the State of Mississippi and Gregory is a resident citizen of Canada whose presence in the United States is by permission of the United States Government. Peters' residence is not alleged or disclosed. Speake, Gregory and Peters are of the white race and Forte is of the black race.

The following defendants at all times in question served in the following official capacities: Rader Grantham as Dean of Men of the University of Southern Mississippi; William D. McCain as President of the University; W. V. Oubre as Chief of Security on the University campus; M. M. Roberts as President of the Defendant Board of Trustees of Institutions of Higher Learning, hereinafter referred to as Board of Trustees; and E. E. Thrash as Secretary of the Board of Trustees. The defendant, Board of Trustees of Institutions of Higher Learning (hereafter referred to as Board of Trustees), is an agency of the State of Mississippi responsible for the supervision and control of all state colleges, including the defendant University.

Plaintiffs sought a temporary restraining order as well as a preliminary and permanent injunction, reinstating them in good standing with the defendant, University of Southern Mississippi, from which they allege they have been wrongfully suspended. They further contend that they will suffer irreparable injury unless they are immediately readmitted.

In their Complaint,² Plaintiffs state that they were until May 18, 1970 students in good standing at the defendant University, a state owned and operated educational institution located in Hattiesburg, Mississippi, and that their suspensions were violative of their rights secured by the due process clause of the Fourteenth Amendment, as interpreted in Dixon v. Alabama State Board of Education.³ It is now well established that precedent, as well as the most fundamental constitutional principles, require an adequate notice of charges and the opportunity of a fair and reasonable hearing on those charges in order to accord with the requirements of procedural due process as a prerequisite to disciplinary action taken against a student attending a tax supported college or institution.

After a full hearing on the Motion for Temporary Restraining Order, this Court found in a written Memorandum Opinion filed herein that plaintiffs were not accorded procedural due process by the proceedings conducted by the Disciplinary Committee of the defendant University inasmuch as they were not given the specific names of witnesses who would testify against them, with the exception of the name of the defendant Grantham; they were not furnished with copies of statements of witnesses who were to testify; they were not accorded the right to hear the witnesses against them testify before the Committee; and they were denied the right to have their attorney present to participate therein. At the time of the TRO hearing before this Court plaintiffs had appealed their suspensions⁴ to the defendant, Dr. McCain, President of the University, who had taken no action thereon. Neither had the defendant Board of Trustees of the University met to consider or review the disciplinary action of the Committee.

Therefore, this Court granted plaintiffs' Motion for a Temporary Restraining Order, immediately reinstating them as students in good standing with the University. The Order preserved the right of the University to take further action after the plaintiffs had been given adequate notice of the charges against them and had been afforded a fair and reasonable hearing to be conducted in compliance with the following requirements and procedures prescribed by this Court:⁵

"(1) The plaintiffs and their attorney shall be given ten days notice in writing by certified mail of the place, date and time of the hearing, this period to commence one day subsequent to the date of mailing of the notice;

(2) Proceedings at the hearing shall be transcribed at the expense of the defendant University and a copy shall be furnished the Court and opposing counsel;

(3) The Board shall decide this matter in writing and in sufficient detail to disclose the basis of its findings and action taken pursuant thereto;

(4) This hearing shall be de novo and both the University and the plaintiffs herein shall have the right to present witnesses or other evidence, whether previously presented before the Disciplinary Committee or not; and plaintiffs shall be informed of the names and addresses of all witnesses to be called by the University and furnish a statement consisting of the substance of the potential witness' testimony at least five (5) days prior to the day of the hearing, as well as copies of any other documentary evidence which will be introduced;

(5) Plaintiffs and their counsel shall have the right of cross examination of any of the witnesses appearing at the hearing and the right to present witnesses or other evidence on their behalf and may object to the admission of any testimony or evidence;

(6) The Board may not increase the severity of any punishment previously administered to the plaintiffs by the University."

This Court further restrained the defendants from inflicting any disciplinary punishment on the three original plaintiffs for an additional period of seven days after the transcript of the hearing before the Board of Trustees had been filed with the Court, at the expiration of which time the stay would expire unless the plaintiffs applied to the Court for further relief, in which event, the temporary restraining order would remain in effect until the disposition of this case by this Court.

In compliance with the above Order, the University scheduled a hearing for July 2, 1970. The three original plaintiffs herein, who were the only plaintiffs before the Court at that time, were notified in writing, of the charges against them⁶ more than ten days in advance of the hearing and also of their right to appear personally and with their counsel to oppose the charges.

The charges against each of the three original plaintiffs herein, which constituted the basis for the de novo hearing, and as set forth in the notice thereof are:

"1. That you and each of you were in possession of false notices that classes would not meet on May 18 and 19, 1970 at the University of Southern Mississippi, and that this was an intent to obstruct or disrupt the academic processes of the University of Southern Mississippi (See No. 1 of Standards of Student Conduct in student handbook); and a copy of said flase (sic) notice is attached hereto as Exhibit `B' and made a part hereof; and

2. That you and each of you disavowed any knowledge of the presence of these notices with you (sic) or that you had knowledge thereof or of the existence thereof; and

3. That you and each of you with others in concert, and that is to say in company with each other and others assembled at the south entrance to the Main Auditorium on the campus of the University of Southern Mississippi before 9:00 o'clock P.M. on the night of Sunday, May 17, 1970, and from there went to the home of Dr. William D. McCain, President of the University of Southern Mississippi, and on the campus thereof and a number of the group made demands and threats and used profanity and vulgar language and which permeated the atmosphere and this meeting had therewith two or all of you and you remained there with others until you and others were satisfied that the President of the University was not at his home; and thereafter you and each of you and others went to the Newman Club on the Northerly side of West Fourth Street and opposite the Coliseum on the campus of the University of Southern Mississippi, and from that point you and each of you and others acting in concert with others prepared for use leaflets as per Exhibit `B' hereto; and thereafter with the use of a motor vehicle of Phillip R. Speake, aforesaid, these leaflets were distributed or passed out or moved through the campus area and that each of you were in said automobile which was a Volkswagen bus being driven or operated by Phillip R. Speake wherein you and each of you were riding, and in which there were these leaflets; but you and each of you at Scott Hall on the University campus denied knowledge of the presence of these leaflets in said motor vehicle, and subsequently Milton Forte, Jr. left the motor vehicle at the rear of Scott Hall on

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