Uzzell v. Friday

• Decision Date: 28 July 1977
• Docket Number: No. 75-2276,75-2276
• Citation: 558 F.2d 727
• 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 727

558 F.2d 727

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 June 8, 1977.

Decided July 28, 1977.

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

Andrew A. Vanore, Jr., Senior Deputy Atty. Gen., Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen., North Carolina, Raleigh, N. C., on brief), for appellees.

Karen Bethea Galloway, James V. Rowan, Paul, Rowan & Galloway, Durham, N. C., on brief for defendant-intervenors.

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

OPINION ON REHEARING IN BANC

ALBERT V. BRYAN, Senior Circuit Judge:

Upon rehearing in banc, the opinion heretofore filed in this appeal, 547 F.2d 801 (4 Cir. 1977), is confirmed with two additions:

(1) A statement will be included in Section II of the opinion, as it appeared in the first order denying a panel rehearing, viz, that after the decision of the District Court but before this appeal came on for argument the Student Constitution provision for appointment by the President of the Student Body, with the consent of the Campus Governing Council, of up to two members of the minority race as Councillors, in the event that the annual election had secured Council office for fewer than two such members, had been invoked and satisfied by appointment of a black student as a Councillor.

(2) To the citations at 547 F.2d at 803, line 10, will be added that of Carter v. Jury Commission of Greene County, 396 U.S. 320, 329, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970), for the point that plaintiffs herein have standing to sue.

The Clerk is now directed to enter an order affirming the panel decision, 547 F.2d at 801, subject to the additions noted above, and reversing and remanding the judgment of the District Court consistent with that decision.

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

I would affirm the order of the district court in its entirety, for the reasons sufficiently stated in the district court's opinion. Uzzell v. Friday, 401 F.S. 775 (M.D.N.C.1975).

I.

I agree with the majority that the district court cannot be faulted for concluding that the issue of university funding of the Black Student Movement is moot.

As to the issue of the validity of the university regulations which allow the student body president to appoint two black members to the Campus Governing Council if two have not been elected, I think that plaintiffs lack standing to sue because there is no actual or threatened injury to them. They have not been threatened with loss of representation as whites. They have not been denied the right to vote; nor has the weight of their vote been diluted. They have not been denied the right to seek election and to win. The fact that potential black appointees may cast the deciding vote on a close issue before the Council, in derogation of plaintiffs' interests, is too remote and speculative for serious consideration.

Finally, as to the issue of the validity of the regulation permitting an accused before the Honor Court to request that a majority of the judges reflect his race and sex (white, black, male, or female), I think that plaintiffs have failed to establish standing to sue and have failed to show a case or controversy, i. e. an actual dispute reflecting competing interests. This regulation does not discriminate; any student may request majority representation of that student's race and sex. Surely a non-offender, of a race or sex different from the accused, has no...