Boykins v. Fairfield Board of Education Respondents' Motion to Dismiss and Affirm

    IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 7 4 - . . . .

GEORGE ROBERT BOYKINS, et a!., 
Petitioners-Plaintiffs,

FAIRFIELD BOARD OF EDUCATION, et al„ 
Respondents-Defendants.

RESPONDENTS’ MOTION TO DISMISS AND AFFIRM
DONALD B. SW EENEY, JR.
MAURICE F. BISHOP 
BISHOP, SW EENEY & COLVIN 

603 Frank Nelson Building 
Birmingham, Alabama 35203 

Attorneys for Respondents

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477



TABLE OF CONTENTS

Page

Statement of Issues Presented for Review .......................... 2

Statement of the C a s e .......................................................... 2

Argument...............................................................................  5

I. Where substantial evidence supported disciplinary ac­
tion taken by a duly constituted bi-racial school 
board, neither the District Court nor the Court of 
Appeals were “clearly erroneous’’ in accepting the 
board’s findings of f a c t ............................................. 5

II. Where students charged with academic misconduct 
are given (1) fair notice of a disciplinary hearing,
(2) specific statement of the charges against them,
(3) a full hearing with the right to examine and pre­
sent evidence with the assistance of counsel, the re­
quirements of due process are satisfied................... 6

Conclusion............................................................................. 11

Certificate of Service............................................................ 11

Table of Cases

Davis v. Ann Arbor Public School, 313 F. Supp. 1217
(E.D. Michigan, 1970) ..................... .............................  8, 9

Dixon v. Alabama State Board of Education, 294 F. 2d
150 (5th Cir. 1961)....................................................... 6, 7, 8

Duke v. North Texas State University, 469 F. 2d 829 (5th 
Cir. 1973) ................................................... ..................... 5, 8

Esteban v. Central Missouri State College, 277 F. Supp.
649 (W.D. Mo. 1967) 8



ii

Ferguson v. Thomas, 430 F. 2d 852 (5th Cir. 1970) . . . .  5

Givens v. Poe, 346 F. Supp. 202 (W.D.N.C. 1972)......... 8, 9

Linwood v. Board of Education, City of Peoria, School 
District No. 150, Illinois, 463 F. 2d 763 (7th Cir. 1972) 5, 6

Pervis v. LaMarque Independent School System, 466 F.
2d 1054 (5th Cir. 1972 )...................................................  8

Russo v. Central School District No. 1, Town of Rush, 
N.Y., 469 F. 2d 623 (2nd Cir. 1972) .......................... 5

Scoggin v. Lincoln University, 291 F. Supp. 161 (W.D. Mo. 
1968).................................................................................  9

Sill v. Pennsylvania State University, 462 F. 2d 463 (3rd 
Cir. 1972) ........................................................................  5

Williams v. Dade County School Board, 441 F. 2d 299 
(5th Cir. 1971) ...............................      8

Texts Cited

“General Order on Judicial Standards of Procedure in Sub­
stance in Review of Student Discipline,” 45 F.R.D. 133 
(1968) ................................     8



SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 7 4 - . . . .

GEORGE ROBERT BOYKINS, et al„ 
Petitioners-Plaintiffs,

v.
FAIRFIELD BOARD OF EDUCATION, et al„ 

Respondents-Defendants.

RESPONDENTS’ MOTION TO DISMISS 
AND AFFIRM

Appellees in the above entitled case move to dismiss and 
affirm Case No. 74—on the ground that the appeal raises only 
questions of fact that were correctly resolved by the courts 
below.

STATEMENT OF ISSUES PRESENTED 
FOR REVIEW

I

Whether the findings of the courts below that substantial 
evidence supported the disciplinary action taken by the Fairfield 
Board of Education was clearly erroneous?



2

II

Whether the procedures followed in the disciplinary hearing 
of November 25, 1972, complied with the requirements of the 
Due Process Clause of the Fourteenth Amendment?

STATEMENT OF THE CASE

“The essential thrust of Petitioners’ brief is to raise factual 
questions through the guise of procedural technicalities. In 
raising each issue presented on appeal, Petitioners argue that 
even though the District Court made no clearly erroneous find­
ings of fact, or improperly applied any governing law applicable 
to the field of education, still there must be reversible error. The 
arguments presented are frivolous and irrelevant to the subject 
matter at hand. A review of the procedures followed by the 
Fairfield Board of Education as outlined in the Opinion of the 
Courts below (see Appendix A of Petitioners’ brief) shows that 
the Fairfield Board conscientiously endeavored to follow pro­
cedural guidelines established by the Federal Courts, and did 
thereby comply in full with every requirement of the Due Proc­
ess Clause of the Fourteenth Amendment.”

Respondent Fairfield Board of Education (Fairfield) will 
not take detailed exception with Petitioners’ Statement of the 
Case or Statement of the Facts, since most of the matters dis­
cussed therein are not relevant to the specific findings or the 
specific issues now before the Court. Instead, Respondent re­
spectfully urges this Court’s attention to the detailed recitation 
of the evidence of record in Judge Groom’s opinion of Novem­
ber 27, 1972 and December 14, 1972. After treating the issues 
relating to curriculum and administrative responsibilities raised 
by Petitioners, Judge Groom concluded at page 14 as follows:

“The Court has had many hearings in the Fairfield school 
case. When the hearings began there was a white ma-



— 3 —

jority in the school system. There is now a black ma­
jority and this majority is growing with every term and 
with ever Court order. The number of students in the sys­
tem is dropping every year with the consequent loss of 
revenue. The cooperation between the races apparently 
has disappeared. Picayunish claims are being made on the 
one hand and vigorously contested on the other. If this 
system is to survive this continued litigation must come to 
an end. Many of the black students appear to have over­
looked the point that the object of attending Fairfield High 
is to obtain an education and not merely to maintain a 
point of which an issue may be made. Throughout the 
hearing, the lack of discipline on the part of black students 
has been evident. This litigation has been enough to ‘tax 
the patience of a Job’. This Court has tried to demonstrate 
its patience, which has not yet been exhausted but it frankly 
is somewhat frayed.” (Emphasis supplied.)

Similarly, after reviewing the record of the disciplinary hearing 
which led to the suspension and expulsion of several students, 
Judge Grooms, in his opinion of December 14, 1972, reached 
the following conclusion at page 4:

“In view of what had occurred at the school prior to No­
vember 10, 1972, it was essential that students go to their 
classes and remain in their classes rather than milling 
around in the halls and continuing the demonstration. It 
is not logical nor does it make sense that the teachers would 
excuse the students from the classes as several of them 
have testified. The demonstrations attending the boycott 
could hardly be prevented if the students were excused 
from their classes or if they walked out deliberately as the 
evidence indicates these students did.

This Court’s order of November 9, 1972, giving these stu­
dents the right to return to their classes was conditioned 
upon their abandonment of the boycott. Not only did the



—  4 —

action which the evidence shows that they took contravene 
the instructions of the school authorities, but it flew in the 
face of this Court’s order of November 9, 1972. In view 
of those demonstrations the school authorities felt it neces­
sary to excuse school on November 10 and this was done 
and another day was lost. The maintenance of discipline 
was a matter of first concern if classes were to continue. 
The students who were disciplined by this expulsion or 
suspension flaunted the fundamental principles of disci­
pline which obviously were inherent in the situation exist­
ing on the morning of November 10, 1972, namely, that 
they should go to and remain in their classes and not be­
come involved in further demonstrations.” . . .

. . . The hearing that was held by the Board was an ex­
tensive one and there was much evidence. The Court does 
not feel that it was called on to analyze all of the evidence. 
It simply states that within the ambit of its prerogative 
respecting the review that the students now complaining 
were afforded procedural due process and the expulsion 
and suspension were merited under the evidence.”



5

ARGUMENT

I

Where Substantial Evidence Supported Disciplinary Action 
Taken by a Duly Constituted Bi-Racial School Board, the Dis­
trict Court Was Not “Clearly Erroneous” in Accepting Their 
Findings of Fact.

In Ferguson v. Thomas, 430 F. 2d 852 (5th Cir. 1970), this 
Court at page 859 held that fact findings by academic agencies 
“when reached by correct procedures and supported by sub­
stantial evidence, are entitled to great weight, and the Court 
should never lightly substitute its judgment for that of the 
Board.” See also Duke v. North Texas State University, 469 
F. 2d 829, 838 (5th Cir. 1973); Russo v. Central School Dis­
trict No. 1, Town of Rush, N. Y 469 F. 2d 623, 628 (2nd 
Cir. 1972); Linwood v. Board of Education, City of Peoria, 
School District No. 150, Illinois, 463 F. 2d 763, 770 (7th Cir. 
1972); Sill v. Pennsylvania State University, 462 F. 2d 463, 
469 (3rd Cir. 1972).

In his opinion of December 14, 1972, Judge Grooms re­
viewed the evidence concerning (1) Vanessa Arrington, (2) 
Beverly Claiborne, (3) Linda Meadows, (4) Clarence Young, 
(5) Jacques Guest, (6) Darlene Phelps, (7) Kathy Scott, (8) 
John Hall and (9) Beverly Law; and based on that review of 
the record concluded at page 4 that substantial evidence sup­
ported the administrative action taken.

Petitioners dispute the conclusion reached by Judge Grooms, 
not on the grounds that his decision was “clearly erroneous” 
under the standards of Rule 52 F.R. Civ. P., but for the reasons 
that alternative remedies were apparently not considered by 
the Board in reaching their decision as to what punishment was 
proper.



—  6 —

Petitioners, in discussing the evidence of each student, con­
cede that specific charges of misconduct were made and sub­
stantiated by the investigative report of Mr. Hershall Turner, 
principal of the Fairfield High School. It is respectfully sub­
mitted that an argument on appeal which merely suggests al­
ternative remedies while not disputing the substantial evidence 
of the record does not sustain the burden of proof necessary to 
show reversible error. Dixon v. Alabama State Board of Edu­
cation, 294 F. 2d 150 (5th Cir. 1961). The facts presented to 
support the charges against each student were meticulously de­
veloped, carefully documented and openly presented by the 
principal of the high school. In each case, full disclosure was 
made to the student, and each of the 21 students was given 
full opportunity to dispute or deny the factual allegations made. 
Based on the testimony given, the Board carefully measured 
the punishment appropriate under the circumstances in each 
case. In this there was no error. Linwood v. Board of Education, 
City of Peoria, School District No. 150, Illinois, 463 F. 2d 763, 
770 (7th Cir. 1972).

II

Where Students Charged With Academic Misconduct Are 
Given (1) Fair Notice of a Disciplinary Hearing, (2) Specific 
Statement of the Charges Against Them, (3) a Full Hearing 
With the Right to Examine and Present Evidence With the As­
sistance of Counsel, the Requirements of Due Process Are 
Satisfied.

The procedure followed in the disciplinary hearing of this 
case was discussed by counsel on both sides, explained to all 
students collectively, and to each student individually as (s)he 
was called before the Board members. The procedure followed 
was set forth at the beginning of the hearing:



— 7 —

“(Off-Record Discussion)

“Mr. Sweeney: I wanted to read a short statement from 
the leading school disciplinary case which I have always 
found instructive and its edict of the Court system followed 
since 1960, Dixon v. Alabama State Board of Education. 
‘School officials and officials should be careful in receiving 
evidence against the students. They should weigh it, de­
termine whether it comes from a source tainted with preju­
dice, determine the likelihood by all surrounding circum­
stances as to who is right, and then act upon it as jurors 
with calmness, consideration, and fair minds. When they 
have done this and reached a conclusion, they have done 
all that the laws require of them to do. We think that 
students should be informed as to the nature of the charges, 
as well as the names of at least the principal witnesses 
against him when requested, and given a fair opportunity 
to make his defense. He cannot claim the privilege of cross- 
examination as a matter of right. The testimony against 
him may be oral or written, not necessarily under oath, 
but he should be advised as to the nature as well as to the 
persons who have accused him.'

“Let me ask you if this procedure will be agreeable. We 
will call each student from outside into the conference 
room with his parent or guardian. We will explain to the 
child what he has been charged with, and ask him if it is 
clear in his mind what school rules he has violated. If he 
has no questions, we will then present the evidence against 
the child to support the accusations. Having done that, 
we will ask the student if he has anything to say to con­
tradict the charges that have been made against him, or the 
evidence to support charges that have been made against 
him. After that we will—I think the Board should ask the 
School Administrator that is presenting the evidence any— 
and the child—any questions that you think are relevant 
in order to resolve any conflict. We’re going to accord Mr.



—  8

Newton the privilege of cross-examination. It is not a right 
that he can insist on, but we are showing him that courtesy. 
After the Board, after the school and the child have pre­
sented whatever evidence they want, then we will excuse 
the child and go on to the next student. Is that an agree­
able process?” (Tr. 6-8)

In adopting the procedure followed, the Fairfield Board of 
Education conformed to the standards established by this Court 
in Dixon v. Alabama State Board of Education, 294 F. 2d 150 
(5th Cir. 1961) and subsequently followed by courts through­
out the Federal system. See Pervis v. LaMarque Independent 
School System, 466 F. 2d 1054, 1058 (5th Cir. 1972); Duke 
v. North Texas State University, 469 F. 2d 829 (5th Cir. 1973); 
Williams v. Dade County School Board, 441 F. 2d 299 (5th 
Cir. 1971); Givens v. Poe, 346 F. Supp. 202, 209 (W.D.N.C. 
1972); Davis v. Ann Arbor Public School, 313 F. Supp. 1217 
(E.D. Michigan, 1970); Esteban v. Central Missouri State Col­
lege, 277 F. Supp. 649 (W.D. Mo. 1967), affirmed 415 F. 2d 
1077, Blackmun, J. (8th Cir. 1969); “General Order On Ju­
dicial Standards of Procedure In Substance In Review Of 
Student Discipline,” 45 F.R.D. 133 (1968).

While the Supreme Court has written no inflexible blueprint 
for all school disciplinary hearings, the essential procedural safe­
guards have been stated to include the following, “Three mini­
mal requirements apply in cases of severe discipline, growing 
out of fundamental conceptions of fairness implicit in the pro­
cedural due process. First, the student should be given adequate 
notice in writing of the specific ground or grounds and the na­
ture of the evidence on which the disciplinary proceedings are 
based. Second, the student should be given an opportunity for 
a hearing in which the disciplinary authority provides a fair 
opportunity for hearing of the student’s position, explanation 
and evidence. The third requirement is that no disciplinary 
action be taken on grounds which are not supported by any 
substantial evidence.”



9

45 F.R.D. 133, 135 (1968). See also Givens v. Poe, 346 F. 
Supp. 202, 209 (W.D.N.C. 1972); Davis v. Ann Arbor Public 
School System, 313 F. Supp. 1217-1225 (E.D. Mich. 1970); 
Scoggin v. Lincoln University, 291 F. Supp. 161, 171 (W.D. 
Mo. 1968).

Petitioners do not question the general features of the pro­
cedure followed by the Fairfield Board, for the reason that the 
Board made every effort to conform to the requirements estab­
lished by this Court. Petitioners question only that aspect of the 
hearing which related to the presentation of the evidence.

The principal of the Fairfield Fligh School, Mr. Hershell 
Turner, investigated each charge brought and then presented to 
the Board the result of his investigation. In several instances, 
the report involved incidents witnessed by Mr. Turner, himself, 
and in others, the reports referred to attendance records and 
reports given to Mr. Turner by the teachers involved. Petitioners 
contend that none of this information was admissible under 
strict rules of evidence. This position is urged notwithstanding 
Mr. Turner's personal knowledge of the facts presented, and 
notwithstanding the fact that he was subjected to extensive 
cross-examination by counsel for the students in every case. In 
other words, Petitioners challenged this procedure not on the 
substantive grounds of fairness since they were allowed to de­
velop fully the basis for the charges, but on the technical evi­
dentiary grounds of hearsay.

In Davis v. Ann Arbor Public Schools, 313 F. Supp. 1217 
(E.D. Mich. 1970), the Court rejected this same type of tech­
nical objection; at page 1227, the Court observed;

“Plaintiff attacks, also, the proceedings before the Board 
of Education. He complains that there was no ‘dialogue’, 
as he puts it, before the Board, with respect to a list of 
charges against him. What the Plaintiff apparently en­
visions as required by administrative due process is some-



10 —

thing similar to an indictment, containing various counts, 
concerning which he will be tried by the Board of Educa­
tion, with cross-examination of witnesses and the other at­
tributes of judicial proceedings.

"The plaintiff misconceives the law. The opinion in the 
case of Dixon v. Alabama State Board of Education, 
supra, among others, takes care to point out the indis­
putable fact that ‘A full dress judicial hearing, with the 
right to cross-examine witnesses, is not required for due 
process. Such a procedure, as well as the other panoply of 
judicial proceedings, such as discovery, challenges to the 
competency of the hearing officers, and the other require­
ments of either a civil or a criminal trial, would be totally 
at variance with the student-school relationship, would 
impose intolerable administrative burdens on the scholastic 
community, and would be disruptive of the very function 
the school is created to accomplish, namely, the imparta- 
tion and acquisition of knowledge in a calm, orderly, and 
reflective atmosphere.”

Petitioners were given the opportunity to develop the extent 
of Mr. Turner’s investigation and knowledge concerning each 
charge. Petitioners were given the opportunity to rebut this 
testimony since each student listened to the charges and sup­
porting information presented against them by Mr. Turner. 
Thus, Petitioners were given every right required by the Four­
teenth Amendment as interpreted by the Courts.



11 —

CONCLUSION

For the reasons previously stated, the Order of the Court 
below should be affirmed. This appeal presents no substantial 
question for review or reconsideration.

Respectfully submitted

Original Signed by

DONALD B. SWEENEY, JR.

MAURICE F. BISHOP 
DONALD B. SWEENEY, JR. 

603 Frank Nelson Building 
Birmingham, Alabama 35203

Certificate of Service

I hereby certify that copies of the above and foregoing Brief 
have been served upon counsels for Appellants via first class 
mail, postage prepaid, this 21st day of May, 1973.

Original Signed by

DONALD B. SWEENEY, JR.