Dixon v. Alabama Board of Education Brief for Appellants

    Butts GJmtrt nf Kppmls
F oe t h e  F if t h  C ie cu it

No. 18,641

S t . J o h n  D ix o n , et a l .,
Appellants,

----y.----

A labam a  S tate B oard of E d u catio n , et  a l .,

Appellees.

appeal  feom  t h e  u n ited  states district  court for th e
MIDDLE DISTRICT OF ALABAMA, NORTHERN DISTRICT

BRIEF FOR APPELLANTS

F red D . G ray
34 North Perry Street 
Montgomery, Alabama

T hurgood M arshall  
J ack  G reenberg 
D errick  A. B ell , J r .

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants

J am es M. N abrit , III 
Of Counsel



Inttefc B u t t s  (Esurt of K p p m l s
F oe t h e  F if t h  C ircu it  

No. 18,641

St . J o h n  D ix o n , et  a l .,
Appellants,

A labam a  S tate B oard of E d u catio n , et a l .,

Appellees.

appeal  from  th e  u nited  states district court for th e
M ID D LE D ISTR IC T OF A L A B A M A , N O R T H E R N  D ISTR IC T

BRIEF FOR APPELLANTS

Statement of the Case

This action by six former Negro students at a state- 
operated college seeks to enjoin defendant state school 
officials from further enforcing an order of expulsion 
against them, entered without the customary notice and 
hearing, as a disciplinary measure in retaliation for their 
protest against racial segregation at a lunch counter in 
the Montgomery, Alabama courthouse, and for their al­
leged participation in meetings where objection was voiced 
against racial discrimination generally.

The action was commenced on July 13, 1960, in the 
United States District Court for the Middle District of 
Alabama, Northern Division. Jurisdiction was invoked 
pursuant to 28 IT. S. C. §§1331, 1343 and 42 U. S. C. §§1981, 
1983, alleging deprivation of rights protected by Section 1 
of the Fourteenth Amendment to the Constitution of the 
United States.



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The complaint stated that plaintiffs were students in 
good standing at Alabama State College, and that defen­
dants, Alabama State Board of Education, its members, 
Alabama State College and its President, H. Councill Tren- 
holm, punished plaintiffs by expulsion without warning or 
opportunity to be heard for having sought service at the 
lunch counter in the Montgomery, Alabama County Court­
house. The answer consisted principally of denials ad­
mitting only plaintiffs’ United States citizenship, that they 
had been students at Alabama State College and the official 
status of defendants. The answer relied chiefly upon ap­
pended affidavit of the Governor of Alabama.

Hearing on plaintiffs’ motions for preliminary and per­
manent injunctions and defendants’ motions to strike and 
dismiss was held August 22, 1960; both sides presented 
testimony and exhibits. These salient facts emerged:

Plaintiffs were expelled for conduct prejudicial to the 
college, but the Board itself possessed no standards against 
which it could be determined whether conduct was preju­
dicial and warranted dismissal (R. 144, 146). Nevertheless, 
central to the dismissal was plaintiffs’ request for service 
at the lunch counter in the Montgomery County Court 
House. Only those who requested such service were dis­
missed, while hundreds participated in other protests 
against racial segregation (R. 148).

Immediately following plaintiffs’ request for service at 
the lunch counter of the Montgomery County Court House, 
the Governor, who is a defendant here, and Chairman of 
the State Board of Education, ordered plaintiffs’ dismissal:

Q. . . . will you tell the Court whether or not the 
same afternoon that these plaintiffs and others re­
quested service at the Court House on February 25 
did the Governor of this State tell you to make an



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inquiry and to dismiss any student at the College who 
were involved in the lunch room incident at the Mont­
gomery County Court House on Thursday morning? 
A. [By defendant Trenholm, President of the Ala­
bama State College] This statement so supports that, 
and I withdraw the other statement (E. 76).

See also testimony of the witness Ingram, a reporter of 
the Montgomery Advertiser:

A. My recollection is that he [the Governor] issued a 
statement to the press urging that the students who 
had participated in the demonstration be expelled from 
College.

Q. And this occurred approximately how many 
hours after the demonstration or after they had gone 
to the Court House, approximately! A. It was—my 
recollection is that the conference was during the af­
ternoon of the day of the demonstration at the Court 
House (E. 92).

Moreover, the President stated that he had no choice but 
to comply with this order (E. 93).

Not only was this the instantaneous reaction of the Gov­
ernor, but the President was of the opinion that plaintiffs, 
by demanding service at the Montgomery lunch counter 
had violated the law (E. 69).

Board member Ayers also voted for their expulsion “be­
cause they violated a law of Alabama.”

Q. That [law] separating of the races in public 
places of that kind [i.e. the white lunch counter at the 
courthouse] (E .156).

Another Board member, Mr. Benford, also voted to expel 
because “ requesting service at the Montgomery County 
Court House . . . was prejudicial to the School” (E. 187).



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Board member Benford went on to testify:
A. It might be different in Boston.

Q. Any particular reason why you would make a 
distinction between Boston and Montgomery? A. No, 
except just look about you and you can see (R. 187).

Among the board members who did not specifically vote 
for expulsion because of plaintiffs’ request for service at 
the lunch counter was member W. A. Davis, who said their 
action “wasn’t nice” (R. 184), and voted to expel plaintiffs 
because of “what happened before that . . . ” (R. 183). But 
no charges or evidence pertaining to any activities prior 
to the lunch counter request appears in the record. Board 
member Davis elucidated only by saying “ there is talk and 
rumors of it from the pictures and everything that was 
going on” (R. 184).

Board member Stewart voted for expulsion on the 
ground that plaintiffs had not requested permission to go 
to the lunch counter and otherwise participate in meetings, 
although there was no rule requiring that such permission 
be requested (R. 199).

Therefore, the majority of the Board voted for expulsion 
on the grounds of the lunch counter request, or on the 
basis of undefined occurrences which took place earlier, 
or which clearly constituted no violation of college rules.

Of the members other than the five discussed, supra, 
member Locklin testified that he would not have expelled 
solely for having requested service at the counter (R. 172), 
but because students had attended a trial of a fellow stu­
dent at the court house (R. 169), and because a large num­
ber of students had attended a meeting at the First Baptist 
Church and had gone to the State Capitol {ibid.). Board 
member Word based his vote on the reports of defendants



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Governor Patterson and Dr. Trenholm (R. 176). Board 
member Faulk acted because “ these students were breaking 
the rules of the College”  (R. 180). Board member Albritton 
testified that he voted on the basis of “ those reports and 
from what [he] heard discussed” at the meeting (R. 196).

The only stricture which college authorities placed upon 
antisegregation protests was that these should not take 
place on the campus. With this order the students com­
plied, subject only to a slight misunderstanding which was 
excused (R. 166). Moreover, there is no evidence that any 
of the plaintiffs ever cut a class for the purpose of partici­
pating in any of these meetings (R. 116). There is no 
evidence that any off-campus demonstration was disorderly 
or that any laws were violated. The visit to the lunch room 
was orderly (R. 138). The attendance by a large number of 
students at the court hearing was entirely orderly (R. 140). 
Another meeting which took place at the First Baptist 
Church also was orderly (R. 140). From this meeting 
some students went downtown, but there is no evidence 
that the plaintiffs were among them or that the Governor 
was informed that they were among them (R. 140).

Indeed while some plaintiffs were said to have been at 
some of the meetings in question it appears that the Board 
had no information that any particular plaintiff other than 
Lee was at any particular meeting other than at the lunch 
counter (see R. 114,139-141,162,164,186).

Plaintiffs received neither notice, hearing, nor an oppor­
tunity to explain themselves before the decision to expel 
was made (R. 106) although in all other cases of expulsion 
in the history of the college hearings had been given (R. 
57-58,61-62,63,72).

Following the August 26 hearing the District Court 
overruled defendants’ motions to dismiss and strike and



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denied plaintiffs’ motions for a preliminary and perma­
nent injunction. The court held that plaintiffs had re­
quested service at the lunch counter (R. 210), that “ several 
if not all of these plaintiffs” had participated in a mass 
attendance at the trial of a fellow student (R. 211); that 
“ several if not all of these plaintiffs” had staged “mass 
demonstrations in Montgomery” (R. 211), that “several 
if not all of the plaintiffs” had participated in an anti- 
segregation protest at the State Capital (R. 213), and 
that “ plaintiffs, or at least a majority of them” were 
leaders in an anti-segregation protest at a church near 
the campus (R. 215).

These activities, it was found, promoted discord and 
disorder at the college. Since, the Court ruled, there is no 
constitutional right to attend a college, the authorities 
were empowered to dismiss so long as their action was not 
arbitrary, which, the court held, under the circumstances, 
it was not (R. 220).

Specification of Error

The Court below erred in denying an injunction and re­
jecting plaintiffs’ claims of due process and equal protection 
of the laws secured by the Fourteenth Amendment, includ­
ing the right to oppose state imposed racial discrimination 
by speech and assembly under these circumstances:

Plaintiffs, seven Negro students at Alabama State Col­
lege, in an orderly fashion requested service in the County 
Courthouse white-only lunchroom and were refused. Im­
mediately the defendant, Governor of Alabama and Chair­
man of the State Board of Education, publicly urged the 
College President to expel plaintiffs.

The Court found that no particular plaintiff, but “ sev­
eral” of them, thereafter participated in meetings at which



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racial segregation was protested. After the President so 
requested no further meetings were held on campus.

Without any notice or hearing, which were customary at 
the College, plaintiffs were expelled for alleged violation of 
a rule prohibiting conduct “prejudicial to the school” or 
“unbecoming” a student, a determination made without 
reference to any definition of such conduct established 
before expulsion.

Argument

This case involves rights secured by the Fourteenth 
Amendment to the United States Constitution, among them 
the right to be free from state-imposed racial discrimina­
tion and the right to freely assemble and speak against 
racial discrimination. A review of the record clearly indi­
cates the essential facts which appear without contradiction.

On February 26, 1960, the plaintiffs went to a publicly 
owned lunch counter in the Montgomery County court­
house and requested service. Their conduct was orderly 
and there were no arrests. However, solely because plain­
tiffs were Negroes they were refused service. This refusal, 
of course, was illegal and contravened rights f irm ly  estab­
lished by decisions of this Court, numerous other courts, 
and the Supreme Court of the United States. See Herring­
ton v. Plummer, 240 F. 2d 922 (5th Cir. 1956); Henry v. 
Greenville Airport Commission, 279 F. 2d 751 (4th Cir. 
1960), and cases collected therein at 753. This body of 
“ settled law” was mentioned in the opinion of the Court 
below (R. 223).

Immediately thereafter on the same day, the Governor 
of Alabama, who is Chairman of the State Board of Educa­
tion, and by any reckoning its dominant member, summoned 
the President of Alabama State College (a state supported



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school for Negroes) and warned him that conduct of this 
sort by students would endanger state financial support 
of the College, and concluded that those who participated 
in the demonstration should be dismissed.

On several succeeding days some of the plaintiffs par­
ticipated in various public meetings protesting racial dis­
crimination. The opinion of the Court below recites facts 
relating to these demonstrations (R. 211-213). In brief, 
on February 26, many students attended a trial in the 
county courthouse; on February 27, there was a public 
meeting, and on March 1, they attended a meeting with 
hymn singing and speech making on the steps of the State 
Capitol. The public meetings in which the students par­
ticipated were lawful and orderly; neither the plaintiffs 
nor anyone else was charged with illegal conduct at any 
of the meetings. The record is also clear that the College 
had no rule forbidding or requiring permission for stu­
dents to participate in public meetings. When the college 
president did request that meetings not be held on the 
campus, the students complied. It is undisputed that plain­
tiffs did not cut classes nor violate any other college rule 
relevant to the case.

On March 2, 1960, the State Board of Education con­
vened and on the recommendation of the college president, 
voted to expel 9 students including the 6 plaintiffs and 
to place 20 other students on probation. The students 
were notified of this action on March 4 or 5, 1960 (R. 213- 
214).

While all Board members did not vote for expulsion 
for the same reason, it appears that a majority of the 
Board voted for expulsion on grounds which included severe 
disapproval of the lunch counter incident. Indeed, the 
President was of the opinion that for Negroes to request 
service at this lunch counter was in violation of the law,



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and Board member Ayers was of the same opinion. Others 
believed that the request for service was prejudicial to 
the school, relied on the President’s report, believed that 
plaintiffs had violated some specific rule, or voted to expel 
on the basis of some completely undefined occurrences 
that had occurred prior to the lunch counter incident (see, 
pp. 3-5, supra).

Prior to the expulsion order the plaintiffs were given 
no notice of charges against them. They were afforded 
no opportunity to make any explanation or presentation 
of any kind by either the College authorities or the State 
Board of Education. This was so despite the fact that the 
College had an informal but nevertheless entrenched tradi­
tional rule that hearings are granted prior to expulsion. 
The President testified:

A. We normally would have conference with the 
student and notify him that he was being asked to with­
draw, and we would indicate why he was being asked 
to withdraw. That would be applicable to academic 
reasons, academic deficiency, as well as to any conduct 
difficulty.

Q. And at this hearing ordinarily that you would 
set, then the student would have a right to offer what­
ever defense he may have to the charges that have 
been brought against him? A. Yes. (R. 57-58)

It may be noted that plaintiffs did seek an opportunity to 
be heard (R. 34, Exhibit B).

The Board acted on the expulsion matter on the basis 
of the President’s report and recommendations as stated 
in the opinion of the Court below (R. 214). However, the 
Board did not even purport to have direct knowledge of 
the facts, nor even knowledge as to which of the students 
attended the various public meetings. It had only the



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President’s report that certain students were “ ringleaders 
of the demonstration.” The trial court found “ several, if 
not all, of the plaintiffs” were at the various meetings 
(E. 211-213). The Board never heard the students’ side 
of the story.

The Board’s justification for expelling the plaintiffs 
was that they fermented discord and dissatisfaction on 
the College campus and were ringleaders of the demon­
strations. Of course, the court may take judicial notice of 
the fact that in February, 1960, throughout the nation 
great numbers of college students began engaging in pro­
test against racial discrimination. The record so indicates 
also (E. 121). See Pollitt, “ Dime Store Demonstrations: 
Events and Legal Problems of the First 60 Days,” 1960 
Duke Law Journal 315 (1960).

But, granting the defendants the benefit of every reason­
able inference from the facts in the record favorable to 
their case, it is neverthelss plain that at most plaintiffs 
peacefully sought an end to racial segregation at the court­
house lunch counter, attended a trial in the courthouse, and 
participated in a series of public meetings held to protest 
racial discriminaton. The Court below purports to rely on 
the fact that “ the right to attend a public college or uni­
versity is not in and of itself a constitutional right” (E. 
218). But neither may the state condition the granting of 
a privilege upon the renunciation of constitutional rights. 
In Alston v. School Board of the City of Norfolk, 112 F. 2d 
992 (4th Cir. 1940), cert, denied 311 U. S. 693, Judge Parker 
held that although the Negro teachers in that case had no 
right to employment as teachers, as there was no teacher 
tenure in Norfolk, their employment might not be condi­
tioned upon acquiescence in a racially discriminatory sal­
ary scale. As to public employment, see Slochower v. Board 
of Education of N. Y., 350 U. S. 551, 555; Wieman v. Upde-



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graff, 344 IT. S. 183, 191-192; United Public Workers v. 
Mitchell, 330 U. S. 75,100. As to other constitutional rights, 
see: Frost v. Railroad Commission, 271 IT. S. 583; Terr ail 
v. Burke Construction Co., 257 U. S. 529; Hanover Fire 
Insurance Co. v. Carr, 272 U. S. 494; Southern Pacific v. 
Denton, 146 IT. S. 202. This has been reiterated as recently 
as this term in the United States Supreme Court in which 
it was held that employment as a teacher in the City of 
Little Rock might not be conditioned upon requiring dis­
closure of associations when such disclosure would impair 
the constitutional right of freedom of association, Shelton 
v. Tucker,------U. S . ------- , 5 L. Ed. 2d 231 (1960).

Therefore, the defendants could not require plaintiffs 
to forfeit their constitutional rights to be served at the 
lunch counter in the courthouse, or to renounce their con­
stitutional right to participate in orderly meetings to pro­
test racial discrimination as a condition of staying enrolled 
in a state college. With reference to the Fourteenth Amend­
ment’s protection of the right to associate together to pro­
test racial segregation, see NAACP v. Alabama, 357 U. S. 
449 (1958); Bates v. Little Rock, 361 U. S. 516 ( 1 9 6 0 ) cf. 
Scull v. Virginia, 359 U. S. 344, 353, note 7.

Indeed, in this ease where rights as fundamental and 
precious as those of free speech and association, as well 
as the right to be free from racial discrimination are con­
cerned, the injury done plaintiffs is even more egregious 
than that effected in many of the above-cited cases for it 
occurred without a hearing. The Court below held that “ the 
fact remains where there is no statute or rule that requires 
formal charges and/or a hearing, as is the case in Alabama, 
the prevailing law does not require the presentation of 
formal charges or a hearing prior to expulsion by the school 
authorities” (R. 221). While the Court below recognizes 
that the statement which it advances as the law has “been



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criticized” (R. 221), and while it cites no authority for the 
proposition that a state college need not give a hearing 
(and certainly cites no authority for the proposition that 
a state college which customarily affords hearings may 
arbitrarily expel students without a hearing in a particular 
case), plaintiffs urge that the ruling below is not the law 
of this Circuit and should not be adopted by this Court.

Notice and hearing are fundamental to our form of gov­
ernment. As Mr. Justice Brown said in Holden v. Hardy, 
169 U. S .366, 389:

This court has never attempted to define with preci­
sion the words “ due process of law,” nor is it necessary 
to do so in this case. It is sufficient to say that there 
are certain immutable principles of justice which inhere 
in the very idea of free government which no member 
of the Union may disregard, as that no man shall be 
condemned in his person or property without due notice 
and an opportunity of being heard in his defense.

In an annotation at 58 ALE 2d 903, 920, entitled “Right of 
student to hearing on charges before suspension or ex­
pulsion from educational institution” , on which the Court 
below relies, and which contains a comprehensive catalog 
of cases involving right to a hearing before expulsion, it 
appears that in fact in all cases involving expulsion from 
public institutions hearings have been held. The only dis­
pute in those cases has been about the adequacy of the 
hearing, a matter quite different from the question of 
whether any hearing at all is in order:

The cases involving suspension or expulsion of a 
student from a public college or university all involve 
the question whether the hearing given to the student 
was adequate. In every instance the sufficiency of the 
hearing was upheld. 58 ALR 2d at p. 909.



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As noted above, the plaintiffs were not even given the 
benefit of customary procedures for a hearing. The de­
parture from this settled practice in a case where defen­
dants are punished for requesting equal treatment under 
the law and for expressing themselves on matters of public 
importance, is shocking to the conscience. An administra­
tive body should, at the minimum, abide by its own rules. 
See United States v. Shaughnessy, 347 U. S. 260 (1954).

The rule adopted by this Circuit for a case of this sort, 
appellants respectfully suggest, should be solicitous of the 
fundamental constitutional freedoms which these students 
have sought to advance. It should be the enlightened view 
urged by Professor Seavey for all eases of academic ex­
pulsion, particularly from state institutions:

At this time when many are worried about dismissal 
from public service, when only because of the over­
riding need to protect the public safety is the identity 
of informers kept secret, when we proudly contrast the 
full hearings before our courts with those in the be­
nighted countries which have no due process protection, 
when many of our courts are so careful in the protec­
tion of those charged with crimes that they will not 
permit the use of evidence illegally obtained, our sense 
of justice should be outraged by denial to students of 
the normal safeguards. It is shocking that the officials 
of a state educational institution, which can function 
properly only if our freedoms are preserved, should 
not understand the elementary principles of fair play. 
It is equally shocking to find that a court supports 
them in denying to a student the protection given to a 
pickpocket. Seavey, “Dismissal of Students: ‘Due 
Process’ ” 70 Harv. L. Eev. 1956-57, pp. 1406-7.



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If the right here can be denied for having opposed racial 
discrimination then so may the right to state employment, 
cf. Shelton v. Tucker, supra, and then why not the right to 
attend the public schools, cf. Wittkamper v. Harvey, 188 
F. Supp. 715 (M. D. Ga. 1960), or indeed, the right to do 
business within the state, Terral v. Burke Constr. Co., 257 
U. S. 529 (1922), all of which, in the last analysis, are within 
the power of the state to withhold.

Therefore, plaintiffs respectfully urge that the dismissals 
which took place because they protested racial discrimina­
tion and sought nonsegregated service at the courthouse 
lunch counter were invalid for having denied due process 
of law and the equal protection of the laws secured by the 
Fourteenth Amendment to the United States Constitution. 
Moreover, the Court’s finding that some plaintiffs took part 
in some protests in addition to that at the lunch counter is 
logically consistent with a conclusion that some plaintiffs 
did not take part in any other demonstration, and probably 
did not participate in all the meetings, raising serious ques­
tions of fact in addition to the constitutional questions, on 
which a hearing, customarily given to students in cases of 
expulsion, was denied. Under these circumstances, the dis­
missal without hearing denied fundamental constitutional 
rights.

It is submitted that the Court below erred in dismissing 
the cause and in denying injunctive relief.

It was recently held in Henry v. Greenville Airport Com­
mission (4th Cir. unreported No. 8247, December 1, 1960), 
that:

“ The District Court has no discretion to deny relief 
by preliminary injunction to a person who clearly estab­
lishes by undisputed evidence that he is being denied 
a constitutional right. See Clemons v. Board of Edu­



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cation, 6 Cir. 228 F. 2d 853, 857; Board of Supervisors 
of Louisiana State University v. Wilson, 340 U. S. 909, 
affirming 92 F. Supp. 986 . . . ”

This principle should be applied in the instant case, and 
the trial court should be directed to enter an injunction as 
prayed.

CONCLUSION

It is respectfully submitted that the judgment of the 
Court below should be reversed, and the ease remanded 
with directions for the entry of the injunction prayed 
for.

Respectfully submitted,

F eed D . G ray
34 North Perry Street 
Montgomery, Alabama

T httrgood M arshall  
J ack  G reenberg 
D errick  A. B e ll , J r .

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants

J am es M. N abrit , III 
Of Counsel



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