Winnick v. Manning, No. 271

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: PER CURIAM
• Citation: 460 F.2d 545
• Parties: Glen K. WINNICK, Plaintiff-Appellant, v. John J. MANNING, Jr., Associate Dean of Students, University of Connecticut, et al., Defendants-Appellees.
• Docket Number: Docket 35610.,No. 271
• Decision Date: 09 March 1972

460 F.2d 545 (1972)

Glen K. WINNICK, Plaintiff-Appellant,
v.
John J. MANNING, Jr., Associate Dean of Students, University of Connecticut, et al., Defendants-Appellees.

No. 271, Docket 35610.

United States Court of Appeals, Second Circuit.

Argued February 14, 1972.

Decided March 9, 1972.

On Motion to Recall Mandate May 2, 1972.

460 F.2d 546

James W. Sherman, Hartford, Conn. (Mark Aaronson, Los Angeles, Cal., on the brief), for plaintiff-appellant.

John G. Hill, Jr., Asst. Atty. Gen., State of Conn., Storrs, Conn. (Robert K. Killian, Atty. Gen., State of Conn., Hartford, Conn., on the brief), for defendants-appellees.

Before FEINBERG and TIMBERS, Circuit Judges, and THOMSEN, District Judge.^*

TIMBERS, Circuit Judge:

This appeal raises important questions with respect to the scope of procedural safeguards which due process requires a public university to afford a student facing expulsion or lengthy suspension.

Glen K. Winnick, a student at the University of Connecticut, a public university, challenged his suspension from

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the University at the close of the 1969-70 academic year, on the ground that the University's disciplinary proceedings violated his Fourteenth Amendment right to due process.¹ Appellant sought preliminary and permanent injunctions against appellees as individuals and officers of the University of Connecticut to require them to reinstate him in good standing pending a new disciplinary hearing at which appellant would be accorded due process. After a non-jury trial, the United States District Court for the District of Connecticut, M. Joseph Blumenfeld, Chief Judge, held that the University's disciplinary proceedings did not violate appellant's constitutional right to due process and denied appellant's request for injunctive relief.²

Finding no error, we affirm.

I

To place Winnick's due process claims in context, a brief recitation of the uncontroverted facts leading to his suspension is in order.

Winnick's suspension resulted from his presence at and participation in a disruption of a class of students taking a final examination on the campus on May 13, 1970.

Appellant was an enrolled member of that class, but pursuant to a resolution passed by the University Senate in the wake of the United States' invasion of Cambodia and the slayings at Kent State University, had elected not to take the examination on that date. Winnick was attending a rally outside the examination building when a group of students decided to enter and to talk to the students who were about to take the examination. The approximately sixty to eighty students who entered the examination room refused to leave at the professor's request. Winnick maintains that he never entered the classroom, but remained outside in the hallway. He does admit, however, that he stood in the doorway and gave a speech to the students inside the classroom.

Shortly thereafter, at about 2:15 or 2:20 P.M., the Dean of Students, Robert E. Hewes, arrived, having been summoned by the professor in charge. He stated that he recognized several students, including Winnick. After appraising the situation, Dean Hewes postponed the examination.

On May 15, Dean Hewes, acting under instructions from the President of the University, conducted a series of preliminary suspension hearings with a number of students who had allegedly participated in disruptive activities on May 13. After meeting with Winnick and questioning him about his presence at and participation in the disruption of the examination, Dean Hewes temporarily suspended him from campus pending a full disciplinary hearing.

On May 28, Dean Hewes wrote to Winnick informing him that he was charged with disrupting a final examination on May 13 and that he should contact the Office of Men's Affairs to set a date for a hearing on the charge. The letter also informed Winnick that his hearing would be conducted by the Affairs Office, as the Student Conduct Committee had disbanded at the end of the academic year. Dean Hewes also provided Winnick with a copy of a Statement of Student Disciplinary Rights, which Winnick was to read and sign indicating his understanding of these rights.

On June 1, Winnick obtained from the Office of Men's Affairs copies of written statements made by Dean Hewes and

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by Emigdio Salmon, a student, both of which placed him at the scene of the examination disruption. Winnick was told that these statements furnished the basis for the charge against him

The hearing was conducted on June 2 by John J. Manning, Jr., Associate Dean of Students. The written statements were again shown to Winnick and then discussed. Winnick was given a full opportunity to present his version of the events of May 13. Winnick requested the presence of Dean Hewes to challenge Hewes' statement that Winnick "was one of the active members of the leadership of that disruption." Dean Manning denied this request, maintaining that this aspect of Hewes' statement had no bearing on his decision in Winnick's case.

On June 5, Dean Manning wrote to Winnick informing him that, as a result of his participation in the disruption of the examination on May 13, he was suspended from the University of Connecticut until the end of the 1970 Fall Term, at which time he could apply for readmission and resume his studies on a probationary status.³

II

Winnick has most strenuously urged on appeal that his full suspension hearing held before Dean Manning on June 2 was invalid because Dean Manning was a biased decision maker. We disagree.

While there remain many vexing questions as to what due process requires in school disciplinary proceedings, a fundamental requirement is that a hearing must be accorded before an impartial decision maker. Wasson v. Trowbridge, 382 F.2d 807, 813 (2 Cir. 1967). See Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027, 1080 (1969). In the instant case, however, Winnick has failed to show that he was denied this right. Winnick makes only unsubstantiated assertions that Dean Manning was biased. He presents no evidence which shows that Dean Manning was incapable of applying stated University policies and regulations impartially. Furthermore, there is nothing in the record which indicates that Dean Manning observed, investigated or made any prehearing decisions about Winnick's conduct at the disruption of the examination. In short, Dean Manning did not have such prior official contact with Winnick's case as to give rise to a presumption of bias. See Wasson v. Trowbridge, supra, 382 F.2d at 813.

Absent such overt bias or prior involvement, there was no reason for Dean Manning to disqualify himself merely because of his position as a...