Uzzell v. Friday

• Decision Date: 16 September 1975
• Docket Number: No. C-74-178-D.,C-74-178-D.
• Citation: 401 F. Supp. 775
• Parties: Lawrence A. UZZELL and Robert Lane Arrington, Individually, and upon behalf of all others similarly situated, Plaintiffs, v. William C. FRIDAY, Individually, and as President of the University of North Carolina, et al., Defendants, and Algenon L. MARBLEY, Chairman of the Black Student Movement and Robert L. Wynn, II, Vice-Chairman of Black Student Movement, Additional Defendants.
• Court: U.S. District Court — Middle District of North Carolina

401 F. Supp. 775

Lawrence A. UZZELL and Robert Lane Arrington, Individually, and upon behalf of all others similarly situated, Plaintiffs, v. William C. FRIDAY, Individually, and as President of the University of North Carolina, et al., Defendants, and Algenon L. MARBLEY, Chairman of the Black Student Movement and Robert L. Wynn, II, Vice-Chairman of Black Student Movement, Additional Defendants.

No. C-74-178-D.

United States District Court, M. D. North Carolina, Durham Division.

September 16, 1975.

Hugh J. Beard, Jr., Charlotte, N. C., for plaintiffs.

Andrew A. Vanore, Jr., Deputy Atty. Gen., Raleigh, N. C., for defendants.

James V. Rowan, James B. Gillespie, Jr., and Karen Bethea Galloway, Durham, N. C., for additional defendants.

MEMORANDUM OPINION

GORDON, Chief Judge.

This case is before the Court on defendants' motion to dismiss or, alternatively, for summary judgment in an action brought by two students at the University of North Carolina at Chapel Hill challenging certain practices of the University and the Campus Governing Council (CGC) as violations of the Fourteenth Amendment and 42 U.S.C. §§ 1983 and 2000d. While there are twelve causes of action alleged, the plaintiffs in essence challenge three separate practices:

(1) the disbursement of funds collected from mandatory student fees to the Black Student Movement (BSM), a group composed exclusively of black students whose membership policies are allegedly discriminatory and whose purpose is allegedly the promotion of a separate racial and cultural identity;

(2) the provisions for minority representatives on the Campus Governing Council (CGC) authorizing appointment and membership solely upon the basis of race; and

(3) the provision for appointment to the Student Honor Court solely on the basis of race.

The plaintiffs allege this suit to be a class action and seek declaratory and injunctive relief.

The plaintiffs allege that each of the three above practices of the University are violations of 42 U.S.C. § 1983 in that they deny plaintiffs equal protection of the laws, and of 42 U.S.C. § 2000d in that the practices deprive the plaintiffs of full participation in and the equal benefit of the University, a "program or activity receiving Federal financial assistance." The defendant University and the BSM, defendant-intervenors, move to dismiss or, in the alternative, for summary judgment, on the grounds that the claim concerning BSM subsidization should be dismissed as moot or for lack of standing; that the claim concerning CGC representation be dismissed for lack of cause and controversy; and that the claim challenging honor court appointment be dismissed for lack of standing.¹ These issues will be resolved on the defendants' summary judgment motions since the Court will consider the many affidavits and answers to interrogatories in the record which are pertinent to the motions before the Court.

The issues before the Court raise questions of substantial difficulty which apparently have not been ruled on by other courts. The defenses of lack of standing and case and controversy make resolution particularly troublesome since they compel consideration of imprecise constitutional doctrines in a case involving claims of a largely unprecedented nature. As a result, this memorandum opinion, sailing an unchartered course, will inevitably pitch and toss in trying to steer between complex constitutional questions and unprecedented applications of § 1983 and § 2000d.

I.

The Court turns first to the issue of mootness with respect to plaintiff's claim concerning disbursements to the BSM. The BSM is an organization at the University "that recognizes the distinctly different cultural and historical evolution of the Black community vis-a-vis that of the broader society . . ." and whose goals are "to strive for the continued existence of unity among all BSM members on this campus; offer outlets for expressing Black ideas and culture; and . . . to insure that . . . BSM members on the campus . . . never lose touch with the culture of the Black Community." (Preamble to the Constitution of the Black Student Movement.) From its inception in 1967 until September, 1974, the membership policy of the BSM was limited to black students at the University. On September 18, 1974, the membership policy was amended to allow any student, regardless of race, to be a BSM member if the views of the applicant are consistent with the goals of the BSM as stated in the Preamble. (Art. III, A. Black Student Movement Constitution, Resolution of September 18, 1974.) At present, all the members of the BSM are black.

The defendants contend that the present nondiscriminatory membership policy and the intent of both the BSM officials and University officers, as evidenced by affidavits, ensure a non-exclusive membership policy and, thus, render this claim moot. At the hearing, the attorney for the BSM stated that the new membership policy is truly open and non-exclusive, that no one has ever been turned down for membership and that the purposes and goals of the BSM, while of course focused on the black experience at the University and black culture, are not inconsistent with integrated membership policies. Finally, the defendant University, while conceding that the mere cessation of the challenged illegal activity does not moot the challenge, argues that the University policy of prohibiting disbursement of student funds to a racially exclusive organization is so clear and its commitment to implementation of the policy so unequivocal that the case is moot since there is no possibility of a recurrence of the challenged activity.

The plaintiff contends the controversy is not moot on several grounds, both factual and legal. Firstly, the plaintiff argues that the membership policy is still exclusive since the condition of membership requiring adherence to the preamble and the review of membership applications by a BSM membership committee allow for effective control of non-black membership and potential discrimination. The plaintiff argues that, in light of the past history of exclusive membership, the conditions for membership and the present all black membership amount to de facto exclusivity or raise at least a presumption of discrimination which should allow plaintiff's claim to withstand the mootness defense. Secondly, the plaintiffs assert that even if the BSM membership policies are no longer exclusive, the case should not be judged moot unless it is reasonably clear that the wrongful activity will not recur. In support of their position that there remains a cognizable danger of a recurrent violation, plaintiffs point to the funding of the BSM by student government with the approval of University officials for several years while the organization was racially exclusive. They point out that this funding was done with knowledge of the exclusivity and that the membership policy only changed after institution of this suit. They argue that the cessation of the activity and the declaration of intent not to reinstitute the policy is not sufficient to render this controversy moot.

The first determination on this issue is a factual one. The language of the new constitutional provision regarding BSM membership and particularly the language of the September 18 resolution manifests a clear intent to allow membership in the BSM on a non-discriminatory basis. Moreover, the affidavit of the Chairman of the BSM clearly expresses the membership policy of the BSM to be without regard for race. It is concluded that the BSM has changed its membership policy from black exclusivity and discrimination against whites to a stated policy of open membership subject to the condition of adherence to the Preamble.

Careful consideration of the University and student government policies also discloses a change from a policy which apparently allowed the subsidization of racially discriminatory organizations to one which clearly prohibits such funding. The affidavit of Marcus Williams, the Student Body President, states the policy of Student Government to be that all student organizations must operate under an open membership policy without regard to race and declares the intent to terminate the funding with student fees of any organization violating that policy. This statement of policy is confirmed by the affidavit of the Treasurer of the Student Government and Dean Donald Boulton, the Dean of Student Affairs.

Furthermore, this policy of subsidizing only organizations whose membership is non-exclusive and open is mandated by The Revised North Carolina State Plan for the Further Elimination of Racial Duality in the Public Post-Secondary Education Systems adopted on May 31, 1974, by the Board of Governors of the University of North Carolina (see affidavit of John P. Kennedy, Jr.). These unambiguous promulgations of present University policy with regard to the subsidization of campus organizations and BSM policy as to membership compel the conclusion that the activity challenged by plaintiffs in their first, second, seventh and eighth claims for relief has ceased and that it is the clearly declared intent of the defendants and intervenors that it not be reinstituted.

This brings on for determination a legal question; that is, whether cessation of the challenged activity renders the controversy with respect to this challenged practice moot. While there is some dispute as to the proper standard for finding mootness when the defendant has discontinued the challenged acts, "the test of mootness is whether the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated." Wright, Miller & Cooper, Federal Practice and Procedure, Vol. 13, § 3533 at 282; United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). As the commentators state, the prediction of possible recurrence of the challenged activity is often difficult and must to some degree depend...