Uzzell v. Friday, 75-2276

• Decision Date: 02 February 1979
• Docket Number: No. 75-2276,75-2276
• Citation: 591 F.2d 997
• Parties: Lawrence A. UZZELL and Robert Lane Arrington, Individually, and upon behalf of all others similarly situated, Appellants, v. William C. FRIDAY, Individually, and as President of the University of North Carolina, Ferebee Taylor, Individually and as Chancellor, Claiborne Jones, Individually and as Vice-Chancellor, Marcus Williams, President of Student Body, Timothy Dugan, Individually and Treasurer, etc., Board of Trustees of the University of North Carolina at Chapel Hill, and Board of Governors of the University of North Carolina, and Algenon L. Marbley, Chairman of the Black Student Movement, and Robert L. Wynn, II, Vice-Chairman of Black Student Movement, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 997

591 F.2d 997

Lawrence A. UZZELL and Robert Lane Arrington, Individually, and upon behalf of all others similarly situated, Appellants, v. William C. FRIDAY, Individually, and as President of the

University of North Carolina, Ferebee Taylor, Individually

and as Chancellor, Claiborne Jones, Individually and as

Vice-Chancellor, Marcus Williams, President of Student Body,

Timothy Dugan, Individually and Treasurer, etc., Board of

Trustees of the University of North Carolina at Chapel Hill,

and Board of Governors of the University of North Carolina,

and Algenon L. Marbley, Chairman of the Black Student

Movement, and Robert L. Wynn, II, Vice-Chairman of Black

Student Movement, Appellees.

No. 75-2276.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 16, 1978.

Decided Feb. 2, 1979.

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

J. LeVonne Chambers, Charlotte, N. C. (Charles Becton, James C. Fuller, Jr., Chambers, Stein, Ferguson & Becton, P. A., Charlotte, N. C., Karen Galloway, Durham, N. C., Jack Greenberg, James M. Nabrit, III, Napoleon B. Williams, Jr., Judith Reed, New York City, on brief), Elizabeth C. Bunting, Asst. Atty. Gen., Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen. of North Carolina and Andrew A. Vanore, Jr., Senior Deputy Atty. Gen., Raleigh, N. C., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and WINTER BUTZNER, RUSSELL, WIDENER and HALL, Circuit Judges.

ALBERT V. BRYAN, Senior Circuit Judge:

Obedient to the remittitur of the Supreme Court in vacating our judgment, ¹ this court has given the case "further consideration in light of Regents of (the) University of California v. Bakke, 438 U.S. 265 (98 S.Ct. 2733, 57 L.Ed.2d 750) (1978)." ² To be reexamined is the conclusion of invalidity laid, in the suit of appellant-white students, to two of the regulations and practices approved and effectuated by the University of North Carolina in its student government.

The first regulation in issue pertains to the legislative branch, the Campus Governing Council (CGC), elected annually by the student body. The CGC is composed of 18 members, but must include "at least two Councillors of a minority race within the Student Body (if any), two male Councillors and two female Councillors." ³ If the election does not satisfy this contingency, then the President of the Council (the president of the student body) shall make appointments from the students generally to fulfill this requisite.

The second questioned requirement relates to the composition of the judicial branch of the government, the Honor Court of the Student Body. Abbreviated, this latter provision stipulates that an accused, on request, is entitled to have four of the seven judges of the court of his or her race or sex. ⁴

Appellants charge that these regulations and practices, in relying Exclusively on a racial criterion, deny them their Fourteenth Amendment rights of equal protection, and violate the Civil Rights Act of 1871 and Title VI of the Civil Rights Act of 1964. ⁵

Bakke, we recognize, unequivocally pronounces that in State educational institutions race may be A consideration in fixing the rights of students, but at no stage did the Court affirm that race could be the sole determinant in any such adjustment. 438 U.S. 265, 98 S.Ct. 2733. As Mr. Justice Powell put it for the majority:

When a classification denies an individual opportunities or benefits enjoyed by others Solely because of his race or ethnic background, it must be regarded as suspect. (Accent added.)

Id. at 305, 98 S.Ct. at 2756.

I.

The permeating defect in the organization of CGC, the governing council, is the imposition of an artificial racial structure upon this elective body that bars non-minority students from eligibility for appointment to the Council. This resort to race affronts Bakke. Although the regulation in question seeks to provide "protective representation," its effect is to establish a racial classification, as it relies exclusively on race to preclude non-minority students from enjoying opportunities and benefits available to others. See id. 265, 98 S.Ct. 2733.

Aggravation of the incursion upon appellant-white students' rights becomes immediately apparent upon recalling that the CGC President picks additional minority students to satisfy the requisite racial composition without an election. Appellants are ineligible for appointment to the Council because they are not of a minority race. Furthermore, the presence of one or more unelected members on the Council dilutes the representative character of the legislative body. Students are entitled to the assurance that their legislature, established at a State institution, is entirely free from the taint of racial preference. Disenfranchisement because of race entrenches upon their Constitutional and statutory rights. Supra note 5.

In Bakke, Justice Powell reiterated "that in 'order to justify the use of a suspect classification, a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is "necessary . . . to the accomplishment" of its purpose or the safeguarding of its interest.' " (Citations omitted.) 438 U.S. at 305, 98 S.Ct. at 2756. Inclusion in the CGC of unelected Councillors is not indispensable to assure representation of minority students. As noted in Bakke :

Nothing in the Constitution supports the notion that individuals may be asked to suffer otherwise impermissible burdens in order to enhance the societal standing of their ethnic groups. . . . (P)referential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth.

Id. at 298, 98 S.Ct. at 2753.

II.

The Honor Court is, of course, for the trial of students accused of conduct dishonorable or otherwise hurtful to the student body, as well as to other pupils individually. It is in the nature of an intramural judicial tribunal of seven lay jurors or judges. Its organic regulation allows race to be a dominant consideration in impaneling the court, obviously a vital juncture in the trial process. This focus on race is achieved by permitting the defendant to insist that a majority of his triers be of his race. That such recourse to race would be a preposterous defiance of the Fourteenth Amendment and the Civil Rights Acts, Supra note 5, in a trial beyond the University walls needs no exposition. Its denial of equal protection within the academic community is no less clear, for there race may be invoked in a trial adjudging the character of a student.

Extending the choice of his judges' racial complexion to a student on trial for misconduct is a potential invasion both of the rights of the other students singly and as a body. They need the protection afforded by the court to prevent any injury to them which the particular defendant's offense might cause. The non-offenders' confidence in the Honor Court logically is diminished when they know that by regulation race may influence the court's judgment. Their position can be likened to the public's in a criminal prosecution, where the prosecution, like the defendant, is entitled to a jury not drawn with an eye to race.

The stern, sincere and unanimous desire for fairness, both in truth and in theory, cannot override the stubborn fact that the system adopted by the University perpetuates inequity instead, thus infringing upon the interests of all students. The just solution is to remove race altogether from the high court regulation, as the appellants pray. Otherwise, it will bar them of the assurances of equal treatment under the Constitution and laws of the United States. Supra note 5.

III.

There is no justification for appellees' insistence that the cause be remanded to the District Court to take additional evidence that, they assert, reflects prior discrimination at the University, or depicts the regulations as an effort by the University to develop a "diverse student body" or to achieve other related aims. Bakke suggests that racial preferences may be approved upon the finding of a continuing Constitutional or statutory violation, as long as others are not prejudiced by the remedial course adopted. 438 U.S. at 265, 98 S.Ct. 2733. The method here chosen for eradicating possible earlier discrimination could not be accepted, even if history revealed such conduct, because, as we have seen, the supposedly remedial measures presently enforced impinge upon the rights of others.

Conclusion

Finally, the University of North Carolina has failed to demonstrate that the accomplishment of the State's purpose necessitates its use of a suspect classification in the two student government regulations before us. Accordingly, summary judgment will go for the appellants, holding the regulations invalid, and, to that extent, reversing the judgment of the District Court.

Reversed with Summary Judgment.

WINTER, Circuit Judge, with whom HAYNSWORTH, Chief Judge, and BUTZNER, Circuit Judge, join, dissenting:

Because we think that faithful compliance with the mandate to reconsider this case in the light of Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), requires a remand to the district court for the taking of evidence and for findings of fact, we respectfully dissent. Additionally, we think that on remand the district court should make a determination as to whether the case is moot.

I.

The majority, on an incomplete record as we shall show, invalidates two regulations. The first requires that the 18-member Campus Governing Council have "a protective representation of minority races and both sexes by being composed of at least two...