State Board of Education v. Anthony Appellants' Brief

    IN THE
FIRST CIRCUIT COURT OF APPEALS 

STATE OF LOUISIANA 
NO. 9599

C .A . File No. 160,895'

STATE BOARD OF EDUCATION, et al.,
vs.

LOUIS J. ANTHONY, et al.

On Appeal from the Nineteenth Judicial District Court 
for the Parish of East Baton Rouge 

State of Louisiana

APPELLANTS’ BRIEF

THOMAS J. DIVENS 348 Baronne Street Suite 301
New Orleans, Louisiana 70112

JOHN W. WALKER
Walker, Kaplan and Nays 
622 pyramid Life Building 
Little Rock, Arkansas

JACK GREENBERG 
CHARLES STEPHEN RALSTON 10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



INDEX

Page.
ISSUES ------------------------------------------------  1
STATEMENT OF THE CASE------------ "-------------------  2
DISCUSSION OF THE DECISION BELOW ---------------------  6
SUMMARY OF THE ARGUMENTS------------------------------- 10
ARGUMENT

I. DUE PROCESS REQUIRES A HEARING BEFORE
SUSPENSION EXCEPT IN EXCEPTIONAL SITUATIONS.
IN SUCH EXCEPTIONAL CASES, THE HEARING 
MUST BE HELD AS SOON AS PRACTICABLE AFTER 
SUSPENSION------------------------------------- 11

II. LOUISIANA REVISED STATUTE 17:1301 ET SEQ.
IS UNCONSTITUTIONAL ON ITS FACE AND AS 
APPLIED IN THAT IT IS VAGUE AND OVERBRO/AD,
IN VIOLATION OF DUE PROCESS AS EMBODIED IN
THE FOURTEENTH AMENDMENT ---------------------- 19

III. THE CONDUCT OF APPELLANTS IS CONSTITUTIONALLY 
PROTECTED UNDER THE FIRST AND FOURTEENTH 
AMENDMENTS TO THE CONSTITUTION OF THE 
UNITED STATES -------------------------------- 28

TV. AN INJUNCTION ISSUE WHICH LIMITS THE
EXERCISE OF FIRST AMENDMENT' RIGHTS MUST BE 
COUCHED IN THE NARROWEST TERMS WHICH WILL
ACCOMPLISH THE OBJECTIVES SOUGHT TO BE
ACHIEVED. THE INJUNCTION ISSUED BY THE
TRIAL COURT VIOLATES THE FIRST AMENDMENT
IN THAT IT IS AN ILLEGAL PRIOR RESTRAINT
ON THE EXERCISE OF FIRST AMENDMENT RIGHTS------ 32

CONCLUSION--------------------------------------------- 36
Certificate of Service ------------------------------  37



Page

Table of Cases:
Armstrong v. Manzo, 380 U.S. 545 (1945) ----------  12, 13
Barnes v. Merritt, 376 F.2d 8 (5th Cir. 1967) --------  22
Bell v. Burson, 402 U.S. 535 (1971)'-------------------13
Bishop v. Inhabitants of Rowley, 43 N.E. 191 (1896)---  23
Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966)---- 19, 28
Cafeteria and Restaurant Workers Union v. McElroy,

367 U.S. 886 (1961) -------------------------------- 13
Cole v. Young, 351 U.S. 536 (1956) ------------------- 13
Connally v. General Construction Co., 269 U.S. 385

(1926) ---------------------------------------------  20
Cox v. Louisiana, 379 U.S. 536 (1965) ---------------- 26
Cramp v. Board of Public Instruction, 368 U.S. 278 (1961) 21
Dixon v. Alabama State Board of Education, 294 F.2d

150 (5th Cir. 1961) ----------------- 10, 12, 14, 17, 33
Dunn v. Tyler Independent School District, 460 F.2d 137 

(5th Cir. 1972)   15
Esteban v. Central Missouri State College, 277 F. Supp.

649 (W.D. Mo. 1967) ----------------------------- 12, 31
Fuentes v. Shevin, 407 U.S. 67 (1972) ----------------  13
Griffin v. School Board of Prince Edward County,

377 U.S. 218 (1964) --------------------------------- 34
Hammond v. South Carolina State College, 272 F. Supp.

947 (D.S.C. 1967) ----------------------------------- 19
Holmes v. New York City Housing Authority, 398 F.2d

262 (1968) ------------------------------------------ 22
Hornsby v. Allen, 326 F.2d 605 (1964) ----------------  22
In re Gault, 387 U.S. 1 (1967) ------------------------ 28

ii



Page

Joint Anti-Fascist Refugee Committee v. McGrath, ^
341 U.S. 123 (1951) ------------------------------- 23

Jones v. State Board of Education, 279 F- Supp. 190 ^
(M.D. Tenn. 1968) -------------------------------

Knight v. State Board of Education, 200 F. Supp. 174 ^
(M.D. Tenn. 1961) -----------------------------------12

t

Morrissey v. Brewer, 408 U.S. 471 (1972) 36
NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964)-- 3_>
NAACP v. Button, 371 U.S. 415 (1963) 25
Payne v. Board of Regents of University of Texas,

355 F. Supp. 199 (W.D. Texas 1972), affj_d, 474 
F . 2d 1397 (5th Cir. 1973) --------------------------- 36

San Antonio Independent School District v. Rodriguez,
U#S . ____, 41 U.S.L.W. 4407 (March 21, 1973)---- 34

Shelton v. Tucker, 364 U.S. 479 (1960)-------------  24, 35
Shuttlesworth v. Birmingham, 382 U.S. 87 (1965) 26
Small Company v. American Sugar Refinery Co., 267 ^
U.S. 233 (1925) ------------------------------------- 21

Smith v. California, 361 U.S. 147 (1959) 35
Sniadach v. Family Finance Corp., 395 U.S. 337

(1969) ---------------------------------------------- 1
Soglin v. Kauffman, 295 F. Supp. 978 (1968) 19, 21
Speiser v. Randall, 357 U.S. 513 (1958) --------------- 24
Stricklin v. Regents of the University of Wisconsin,

297 F. Supp. 416 (W.D. Wis. 1965) ----------- 16, 17, 32
Sullivan v. Houston Independent School District,

307 F. Supp. 1328 (S.D. Texas 1969) ----------------  31
Tinker v. Des Moines Independent Community School

District, 393 U.S. 503 (1969) ------------------- 25, 28

m



Page

United States v. Harriss, 347 U.S. 612 (1954)---------  20
West Virginia State Board v. Barnette, 319 U.S. 624

(1943) ----------------------------------------------  28
Williams v. Dade County School Board,- 441 F.2d 299

(5th 'Cir. 1971) -------------------------------------
Wood v. Wright, 334 F.2d 369 (5th Cir. 1964) 15
Zanders v. Louisiana State Board ot Lducation,

281 F. Supp. 747 (1968)---------------------- 10/ 14/ 33

Constitutional and Statutory Provisions:
United States Constitution, First Amendment ---------  passim
United States Constitution, Fourteenth Amendment-----  passim
Louisiana Revised Statutes 17:3101 et seq. 1, 8, 10, 19

Other Authorities:
Seavey, Dismissal of Students: Due Process,

70 Harv. L. Rev. 1406 ------------------------------- 33

iv



ISSUES

1. (a) Whether the action of University officials
in suspending appellants from Southern University for alleged 
acts of misconduct without the benefit of a hearing or a prior 
opportunity to be heard is violative of the due process clause 
of the Fourteenth Amendment to the Constitution of the United 

States?
(b) Whether the trial court is the proper forum 

to decide questions involving discipline at a tax-supported 

University?
2. (a) Can Louisiana Revised Statutes 17.3101 et sect., 

which is aimed at the regulation of disruptive conduct, be 
applied to punish students who engage in protest on the campus 
of a tax-supported University in the absence of regulations

which prohibit the conduct engaged in?
(b) Whether Louisiana Revised Statutes 17:3101

et se_q. is so vague and overbroad as to violate the First 
and Fourteenth Amendments to the Constitution of the United 

States?
3. Whether appellants' conduct is constitutionally 

protected under the First and Fourteenth Amendments to the

Constitution of the United States?
4. Whether the injunction issued by the trial court is 

so vague and overbroad that it violates the First and Four­
teenth Amendments to the Constitution of the United States?



STATEMENT OF THE CASE

This action commenced during the fall semester of 1972, 
when the Southern University campus in Eaton Rouge, Louisiana 
became the scene of massive protests and boycotting of classes 
The protests were spearheaded by an unstructured organization 
known as Students United." Students United organized in 
late September, and by mid-October, acting through some of its 
members, presented a list of grievances to Dr. G. Leon 
Netterville, President, Southern University.

Among the grievances presented was a request for the
resignation of Dr. Netterville and other administrators at
the University. When University officials had not acted upon
the grievances, the students took their grievances to the
State Board of Education and to Governor Edwin Edwards. The
Governor, University officials, and members of the State Board
of Education, all conceded the merit of some of the student

1/complaints.

After hearing the grievances of the students, Governor 
Edwards appointed a committee to investigate them. The 
students met with the committee on several occasions from 
late October until early November, 1972 on the campus of 
Southern University in Baton Rouge, Louisiana.

1/ Testimony of Gov. Edwards: "I consistently said privately 
and publicly that most of their grievances were entirely in 
order---" (Transcript, p. 2141.)

2



When these meetings failed to resolve their grievances, 
the protest activities were escalated and the students' demand 
for the resignation of Dr. Netterville became one of the 
primary demands. The protest activities continued until 
November 8, 1972 and by that date there was an almost total 
boycott of classes.

Students were urged to attend meetings in the two 
gymnasiums on campus. These meetings were attended by 
students, faculty, and administrators, including
Dr. Netterville. At these meetings student leaders, especially
the defendants, exhorted the other participants not to resort

2to violence or other forms of disorderly conduct.
The method of effectuating the boycott was for a student 

or group of students to enter into a classroom and ask the 
instructor for permission to address the class, and only 
after his permission to address the class was granted, did 
the spokesman explain to the students the purposes for the 
boycott and request that they join in the boycott. It should

2/ Q. What were the instructions that the group 
gave...?

A. First of all, we all had this thing about love 
of our people and respect for our people and 
if we were going to achieve anything we had to 
respect one anothers and that was...the basic 
thing that we preached.... (Tr. pp. 839-840.)

3



be noted that this was the accepted method of notifying 
students of "pep rallies" and other University functions, 
as there was no public address system which could be used to

3/reach students in the various buildings on campus.
... On’or about November 9, 1972 Dr. Netterville sent letters 

to each of the appellants notifying them that they had been 
suspended from the University. Not all of the appellants 
received the letters. This letter of suspension advised the 
appellants that they had been suspended and that the suspensions 
could be appealed to the State Board of Education within 
30 days. The letter failed to specify the charges pending 
against them, the person or persons making the charges, or 
the time and place of a hearing.

On or about November 13, 1972 Dr. Netterville sent to 
the appellants letters which reinstated them and set aside

3/ Q. Is it unusual for a student or a group of 
students to come into your classroom and 
ask for permission to address your class?

A. If someone comes and asks my permission, 
of course, it is acceptable... We 
always do that.

Q. Has it ever occurred?... Has anyone ever 
come to your classroom and asked for 
permission to speak to the class?

A. Yes, several times, almost every day students 
came and asked permission from the teacher and 
if they want to address to the class and talk 
to an individual student or to the group of 
students, they can do so... (Tr. pp. 461-462.)

4



the earlier suspension on the condition that the alleged 
disruptions would cease. Appellants, in reliance on this 
second letter, returned to campus. The boycott of classes 

continued.
t

On or about November 16, 1972, at approximately 4:00 a.m., 
several of the appellants were arrested by police officers 
of the East Baton Rouge Parish Sheriff's offices. At 
approximately 9:00 a.m. on November 16, 1972 a group of 
students, including several of the appellants, went to the 
office of Dr. Netterville to secure his assistance in obtaining 
the release of those students who had been arrested. The 
meeting ended with the calling out of the National Guard and 
police officers from the East Baton Rouge Sheriff's office.
Two students were killed later in the day.

The University was closed on the 16th of November, 1972, 
and remained closed to the students until January 3, 1973.
On or about December 29, 1972 appellees, through 
Dr. Netterville, applied to the district court for a 
temporary restraining order and preliminary and permanent 
injunctions against appellants, to restrain and enjoin them 
from entry onto the campus of Southern University in Baton 
Rouge, Louisiana. During the period when the University 
was closed members of the staff and faculty met and decided

5



that the appellants were responsible for the disruptions 
which occurred at the school and named them as defendants 
in this action.

Appellants were not afforded a. hearing prior to their 
suspensions or to being ruled into court, and have not to 
this day been afforded such a hearing.

DISCUSSION OF THE DECISION BELOW
(1) The district court below erred in finding that 

the University need not meet the requirements of due process 
prior to filing this action. In his written reasons for 
judgment of February 6, 1973, the trial judge totally dis­
regarded the constitutional rights of appellants to a hearing 
prior to suspension as established by the long line of cases 
dealing with student suspensions and expulsions. The trial 
court said:

4/ Q. And what is your understanding of the reason 
they are under suspension. . . .?

A. For . . . persuading students to boycott classes
and to have unauthorized meetings and so forth.

Q. . . .  I am ashing you, would punish them because 
they refuse to acquiesce in your position on that 
one point?

A. If severing them from the University to solve 
the problem was punishing them if that what 
you mean by punishing. . . .

Q. Yes?
A. Yes. (Tr. p. 1303.)

6



"While this Court is of the opinion that 
the later letter did not completely lift 
the suspensions and merely conditioned the 
students' readmittance, the Court must agree 
that the University failed to meet the 
requirements of due process established by 
Dixon and the other federal cases dealing with 
student suspension or expulsions. And if the 
’sole question before the Court was restricted 
to the issue of the validity of the defendants' 
dismissal from Southern University, the court 
would agree." (Written Reason for Judgment,
P- 5. )

As stated earlier, the students were first suspended 
on November 9, 1972 and later reinstated on November 13, 1972. 
They were not, otherwise, notified that their reinstatement had 
been revoked until they were ruled into court. Prior to being 
ruled into court, appellants were under the impression that 
they were students of Southern University. Thus, the first 
opportunity which appellants had to challenge their suspensions 
was when they appeared in court.

(2) The trial court erred in finding that the conduct 
of appellants was disruptive and not constitutionally protected. 
The record in this case is devoid of any testimony that any one 
of the appellants committed any act which could reasonably be 
construed as being intimidating, abusive, or unlawful. In 
reaching his conclusion that appellants had, in fact, committed 
disruptive acts which intimidated others, the court relied on 
a movie which evidently had been viewed by the trial judge:

7



"Any person who saw the movie 'The Godfather 
would readily understand that words do not 
always have to convey actual threats to 
produce the effect of intimidation, but 
often a mere suggestion accompanied by the 
■knowledge on the part of the listener that 
means to produce a fearful result are present 
will induce fear and cause intimidation."

There is no precedent for imposing such strenuous 
sanctions on students when the basis of same is the trial 
judge's appraisal and appreciation of a movie. Appellants 
urge that the trial judge can not substitute his appreciation 
of a movie for testimony which appellees did not produce at 

the trial of this matter.
(3) Appellees urge that the trial court should have 

issued its declaratory judgment that Louisiana Revised 
Statutes 17:3101 et seg. was unconstitutional on its face and 
as applied to the appellants. The evidence introduced at the 
trial of this matter clearly indicated that University 
officials acted under color of this statute in suspending 
the students. Assuming that the Act is a legitimate exercise 
of the police power of the state, the Act is defective on its 
face in that it provides for summary expulsion in cases of 
emergency, but fails to provide an adequate procedure for 
the protection of constitutional rights after the emergency 
is no longer present. In this regard, the Act provides for

_  8 -



an appeal, but fails to prescribe a period within which the 

appeal must be decided.
(4) Finally, appellants urged that the trial court 

abused its discretion in granting such a broad and sweeping 
injunction. Appellants recognize that University officials 
have a legitimate interest in the orderly operation of the 
University. However, the order of the court goes beyond 
that interest and unnecessarily denies to appellants their 
right to obtain an education in a state university. The 
injunction, in effect, prohibits them from entry onto the 
campus while appellants have not been properly dismissed 
from the University. Perhaps more detrimental, is the fact 
that the injunction infringes upon appellants' exercise of 
First Amendment rights to free speech and association, and 
has the effect of "chilling other students" in the exercise 
of their First Amendment rights.

The history of this litigation of the actions of 
appellees unquestionably establishes a continuous and con­
sistent pattern of unreasonable and obstinate refusal to 
follow the Constitution of the United States.

_ 9 -



SUMMARY OF THE ARGUMENTS

Appellants submit that, under the rules of Dixon v .
Alabama State Board of Education, 294 F.2d 150 (1951);
Zanders v. Louisiana State Board of Education, 281 F.Supp.
747 (1968), and a host of similar cases, their First and 
Fourteenth Amendment rights to freedom of speech and their 
rights to due process of law were violated in that appellants 
were suspended from Southern University in Baton Rouge without 
adequate notice and a prior hearing. Appellants, further, submit 
that they were at all times acting pursuant to rights guaranteed 
by the First Amendment to the Constitution of the United 
States.

Appellants submit that Louisiana Revised Statutes 
17:3101 et seg. (hereinafter Act 59) is unconstitutionally 
vague and overbroad, and thus violative of the First and 
Fourteenth Amendments to the Constitution of the United 
States. In this regard, appellants urge that Act 59 
unconstitutionally infringes on the exercise of First Amendment 
rights by its broad and general language. Appellants, further, 
urge that Act 59 was unconstitutionally applied in the instant 
case.

10



Appellants, further, submit that their conduct was 
at all times lawful and protected under the First Amendment 
to the Constitution of the United States. Appellants contend 
that while University officials may restrict the exercise of 
First Amendment rights as to time, place and manner, said 
restrictions must be narrowly defined so as not to amount to 
an unlawful prior restraint.

Finally, appellants submit that the trial court judge 
abused his discretion in granting such a vague and overbroad 
injunction. In this regard, appellants urge that the injunction 
issued against them goes beyond the scope of achieving 
legitimate state objectives and operates as a prior restraint 
on the exercise of their First Amendment rights.

ARGUMENT

I.
DUE PROCESS REQUIRES A HEARING BEFORE 
SUSPENSION EXCEPT IN EXCEPTIONAL SITUATIONS.
IN SUCH EXCEPTIONAL CASES, THE HEARING 
MUST BE HELD AS SOON AS PRACTICABLE AFTER 
SUSPENSION.

Whenever a governmental body such as a state board of 
education acts so as to injure an individual, the Constitution 
of the United States requires that the act be consonant with

11



due process of law. The minimum procedural requirement
necessary to satisfy due process depends upon the circumstances
and the interests of the parties involved. Thus, there must
be some reasonable and constitutional ground for expelling
students from school,or the courts would have a duty to
require reinstatement. Dixon v. Alabama State Board of
Education, 294 F.2d 150 (5th Cir. 1961). In Dixon, supra
(the leading case extending the right of a hearing to students
expelled from a tax-supported university), the court said:

"...[D]ue process requires notice and some 
opportunity for a hearing before a student 
at a tax-supported college is expelled for 
misconduct." (P. 158.)

In this context the courts, without deciding the question 
of whether- education at a tax-supported college was a right or 
a privilege, have held that because education is so essential 
it could not be taken away without a hearing. Accord, <s.c£. , 
Knight v. State Board of Education, 200 F. Supp. 174 (M.D.
Tenn. 1961), and Esteban v. Central Missouri State College,
277 F. Supp. 649 (W.D. Mo. 1967).

The due process requirement of notice and an opportunity 
to be heard must be "granted at a meaningful time and in a 
meaningful manner." Armstrong v, Manzo, 380 U.S. 545 (1945). 
The "meaningful time and reasonable manner" requirements are

12



always dictated by the particular circumstances of the case. 
Courts have, however, held that the hearing must be afforded 
prior to the actual deprivation, except in unusual circumstances 
which justify postponing the hearing. This right to a prior 
hearing has been upheld by the courts in a variety of situations 
Armstrong v. Mango, supra (deprivation of parenthood); Cole_v. 
Y0unq, 351 U.S. 536 (1956) (dismissal from employment);
Sniadach v. Family Finance Corr ., 395 U.S. 337 (1969) (pre­
judgment garnishment); and more recently, Bell v,_Burson,
402 U.S. 535 (1971) (drivers license suspension), and Fuentes
v. Shevin, 407 U.S. 67 (1972) (repossession of goods upon

"buyer’s default).
In cafeteria and Restaurant Workers Union vv_McjElrgy:,

367 U.S. 886 (1961), the court recognized the difficulty in
establishing rules for due process in all cases:

"Consideration of what procedures due process 
may require under any given set of circumstances 
must begin with a determination of the precise 
nature of the government function involved as 
well as of the private interest that has been 
affected by government action."

Applying this standard to the instant case, it is apparent
that the interests involved include the orderly operation of
a tax-supported institution and the right to exercise freedoms
guaranteed by the Constitution without undue restrictions.

13



in both Dixon, supra, and Zanders v.. Louisiana.State
noerd of Education. 281 F. Supp. 747 (1968) (a case involving
the appellees as party defendants), the court explained in
great detail the procedures to be afforded students faced with
expulsions for misconduct. In Dixon, supra, the court said:

"For the guidance of the parties in the 
event of further proceedings, we state our 
views on the nature of the notice and hearing 
required by due process prior to expulsion 
from a state college or university. They should, 
we think, comply with the following standards.
The notice should contain a statement of the 
specific charges and grounds which, if proven, 
would justify expulsion under the regulations 
of the Board of Education, ...the student should 
be given the names of the witnesses against him 
and an oral or written report on the facts to 
which each witness testifies. He should also 
be given the opportunity to present to the  ̂ _
Board, or at least to an administrative official 
of the college, his own defense against the 
charges and to produce either oral testimony 
or written affidavits of witnesses in his
behalf___ If these rudimentary elements of
fair play are followed in a case of misconduct 
of this particular type, we feel that the 
requirements of due process of law will have 
been fulfilled. (Pp. 158-159.)

In Zanders, supra, the court cited Dixon with approval 
and reaffirmed these basic requirements of due process. It 
is rather striking that the State Board of Education, after 
having been instructed on the requirements of due process, 
would now seek to circumvent these requirements, which have

14



so carefully been defined by a federal court, by ruling the

appellants into state court.
It is now well recognized that in emergency situations

the due process requirement of a prior hearing may be post­
poned until after the deprivation. The due process requirement 
of a hearing prior to suspension has been extended to high 
school discipline cases as well. Wood Wright, 334 F.2d 
369 (5th Cir. 1964). While a summary suspension of students 
for a short period of time may be justified where the 
university officials seeh to suspend a student for more than 
30 days, or as here, to expel the student, a rudimentary 
due process hearing must be afforded the student. Williams 
w county School Board, 441 F.2d 299 (5th Cir. 1971);
Dunn v. Tvler Independent School District, 460 F.2d 137 

(5th Cir. 1972).
In the instant case appellants were summarily suspended 

from school. The notice of November 9, 1972 did not specify 
the period of the suspension and indicated that it would be 
permanent unless the students applied for a hearing within 
30 days of the suspension. Appellees contend as justification 
for their unconstitutional actions that an emergency situation 
existed which precluded affording appellants a hearing prior 
to the suspension. Assuming that an emergency condition

15



existed on November 16, 1972, the emergency did not continue
until January 9, 1973 when appellants were ruled into court.

It is not contested that the school officials should 
have responded to the situation in such a way as to calm it 
down. Thus, they decided to suspend classes from November 16, 
1972 until January 3, 1973. They also might have suspended 
students, including appellants, immediately. However, once 
the immediate situation had been brought under control, the 
question then became, what might appropriately be done to 
further discipline students who were involved.

The record indicates that during the period that the 
'school was closed, staff and faculty members met and 
discussed methods of returning the campus to its normal 
operational posture. It was only at this point that they 
decided to take action against the appellants. Surely, the 
emergency did not continue to exist on January 3, 1973. The
record, further, indicates that there was no reason for 
failing to afford appellants a hearing prior to bringing the

instant action.
The court addressed itself to this question in Stricklin 

v. Recents of the University of Wisconsin, 297 F. Supp. 416 
(W.D. V7is. 196 5) (a case wherein plaintiffs-students sought 
a temporary restraining order for immediate reinstatement

16



following their suspensions without a hearing after several 
weehs of disruptions on the University campus)- In ^ r icklin, 

the court said:
"When the appropriate university authority 
has reasonable cause to believe that danger 
will be present if a student is permitted 
to remain on the campus pending a decision 
following a full hearing, an interim suspen­
sion may be imposed. But the guestion 
persists whether such an interim suspension 
may be imposed without a prior 'preliminary 
hearing' of any hind. The constitutional 
answer is inescapable. An interim suspension 
may not be imposed without a prior preliminary 
hearing, unless it can be shown that it is 
impossible or unreasonably difficult to accord 
it prior to an interim suspension. Moreover, 
even when it is impossible or unreasonably 
difficult to accord the student a preliminary 
hearing prior to an interim suspension, 
procedural due process requires that he be 
provided such a preliminary hearing at the 
earliest practical time. (P. 420.)

Clearly, the hearing on the temporary restraining order 
and the injunction was not sufficient to satisfy the due 
process requirements enunciated in p.ixon.« More precisely, 
Dixon provides that the student should be given notice of the 
charges, and the notice should contain the names of the 
witnesses and a report of the facts which each witness will 
testify to. In the court proceeding appellants had no 
opportunity to secure the names of witnesses against them. 
Appellants were not furnished with reports on the facts which

17



the witnesses would testify to. Quite to the coni.2.ary, 
University officials were permitted to testify as to reports 
which, had been received from faculty and staff. Appellants 
have not to this day been furnished vvith copies of these 
reports. ■ By virtue of being temporarily restrained from 
entry onto the college campus, appellants were, in fact, 
denied the opportunity of securing witnesses in their behalf 
from among the student body population.

Thus, the actions of the school officials in not affording 
appellants a hearing prior to suspension or within a reasonable 
time thereafter was in violation of the due process clause 
of the Fourteenth Amendment to the U.S. Constitution, and the 
suspensions should be invalidated.

IB



II
LOUISIANA REVISED STATUTE 17:1301 ET SEQ.IS UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED 
IN THAT IT IS VAGUE AND OVERBROAD, IN VIOLATION 
OF DUE PROCESS AS EMBODIED IN THE FOURTEENTH 
AMENDMENT.

Judicial intervention in school discipline cases in more 
recent years has not been restricted to questions of procedural 
due process. Thus, the validity of substantive school rules have 
been subject to judicial scrutiny. Burnside v. Byars, 363 F.2d 
744 (5th Cir. 1966); Hammond v. South Carolina State College,
272 F. Supp. 947 (D.S.C. 1967).

Appellants submit that the statute in question is 
unconstitutionally vague and overbroad in violation of their 
rights as guaranteed by the First and Fourteenth Amendments to 
the Constitution of the United States. The statute has as its 
primary objective to control protest activity on the college and 
university campuses within the state and to insure and preserve 
the orderly educational processes. Appellants admit that this is 
a legitimate state interest.

Appellants submit, however, that in achieving this legitimate
end, the state has unduly infringed upon their rights as
guaranteed by the First Amendment. In Soglin v. Kauffman, 295
F. Supp. 978 (1968), the District Court recognied the difficulty
in drafting regulations which seek to prohibit conduct which is
not protected by the First Amendment.

"Obviously it is not a simple matter to draft 
a regulation which deals with means by which 
‘causes' are supported or opposed, and which

19



undertake to prohibit those means unprotected 
by the First Amendment without impairing those 
which fire so protected, and which also avoids the 
vice of vagueness."

The test under the "void for vagueness" doctrine was 
established in Connally v. General Construction Co., 269 U.S.
385 (1926) : '

" . . .  a statute which either forbids or requires 
the doing of an act in terms so vague that men 
of common intelligence must necessarily guess at 
its meaning and differ as to its application 
violates the first essential of due process of 
law. "

Also see United States v. Harriss, 347 U.S. 612 (1954),
where the court held that the constitutional requirement of 
definiteness is violated by a statute that fails to give a person 
of ordinary intelligence "fair notice that his contemplated 
conduct is forbidden by the statute."

Appellees assert that the "conduct" of each of the 
appellants is the ground for withdrawing their privilege to 
attend Southern University. In this regard they rely on the 
statute in question. Appellees further rely solely on disruptive 
conduct as the standard for withdrawing permanently their 
privilege to enter upon the campus of Southern University

Appellants maintain that imposition of such a severe 
disciplinary penalty as permanent exclusion from the University 
solely by reference to so vague a standard as "disruptive conduct" 
violates the principle of fundamental fairness guaranteed by 
the Due Process Clause of the Fourteenth Amendment. More 
specifically, appellants contend that the standard of disruptive 
conduct:

20



a) is void for vagueness in that it fails to 
put students on notice of what behavior 
constitutes a violation of the statute, and 
would thus be sufficient grounds for permanent 
exclusion from the university;

b) unconstitutionally vests university officials 
with unfettered discretion to determine when 
there is a violation of the statute;

■c) offends due process of the law in that its 
vagueness effectively deprives a student 
threatened with permanent expulsion of the 
opportunity to make a defense;

d) is overbroad and impermissibly restrains the 
exercise of the rights of free speech and 
association guaranteed by the First Amendment.

While the void for vagueness doctrine originates and finds
its primary application in the field of criminal lav/, it has
been held applicable in other areas as well:

"the ground or principle of the decisions was not 
such as to be applicable only to criminal prosecu­
tions. It was not the criminal penalty that was 
held invalid, but the exaction of obedience to a 
rule or standard which was so vague and indefinite 
as really to be no rule or standard at all." Small 
Company v. American Sugar Refinery Co., 2 6 7 U .S .
233,' 239 (192 5).

Lav/s inhibiting the exercise of First Amendment rights 
have frequently been set aside for vagueness. Cramp v. Board of 
Public Instruction, 368 U.S. 278 (1961), a case v/here the court 
declared unconstitutional a statute requiring public school 
teachers to sign a loyalty oath as a condition to continued 
employment.

In Soglin v. Kauffman, supra, the United States District Court 
held " . . .  that a regime in which the term 'misconduct' serves 
as the standard violates the due process clause of the Fourteenth 
Amendment by reason of its vagueness or, in the alternative, 
violates the First Amendment as embodied in the Fourteenth 
Amendment by reason of its vagueness and overbreadth." Id. at

21



15-16. Appellants submit that "misconduct" as construed in
Soglin is no different from "disruptive conduct" as is 
embodied in the statute in question, and thus Soglin should 
control the instant case.

Unfettered Discretion
The need for "ascertainable standards," Hornsby v.

Allen, 326 F.2d 605 (1964), to govern decision-making by 
administrative officials is clear. In Holmes v. New York 
City Housing Authority, 398 F.2d 262 (1968), the court said
that "the existence of an absolute and uncontrolled discretion 
in an agency of government vested with the administration of 
a vast program . . . would be an intolerable invitation to 
abuse." In the instant case, Dr. Netterville and other 
University officials are vested with unfettered discretion 
to determine when there has been a violation of the act. This 
fact is compounded when the activity of those charged with 
violation of the act was directed toward the removal of those 
vested with the discretion. In many instances courts have 
invalidated actions taken by administrative officials who have 
taken such action without reference to ascertainable standards 
embodied in rules or regulations, Holmes, supra; Hornsby v. 
Allen, supra; Barnes v. Merritt, 376 F.2d 8 (5th Cir. 1967).

Appellees, including Dr. Netterville and members of the
State Board of Education, assert that school officials have
the power to determine when a student has violated the act.
This power, they assert, may be exercised without reference to

-  22 -



ascertainable standards to guide and limit the University 
officials in the exercise of this discretion. Thus, the situation 
exists where university officials may decide that certain conduct 
is violative of the statute and are empowered to impose sanctions 
in one set of circumstances, and under similar circumstances 
involving like conduct determine that no violation has occurred.

The arbitrary or capricious act of a university official 
in dismissing a student from the University involves the imposition 
of a severe sanction. It may summarily destroy the aspirations 
of appellants, their parents, and others like them, as well as 
to defeat the legislative purpose embodied in the statute in 
question. It is, therefore, imperative that the appellees 
establish standards to limit university officials in the exercise 
of discretion to legitimate purposes and to provide a basis for 
review of such decision. See Bishop v. Inhabitants of Rowley, 43 
N.E. 191 (1896).

Lack of Standards
Appellants are required by the statute to refrain from 

"disruptive conduct." This term is susceptible of such vagaries 
of interpretation and application that it is in reality no 
standard at all. Appellants have, at most, been charged with 
being responsible for the "disruptive conduct" which occurred on 
the campus of Southern University during the fall semester, 1972.

The vagueness of the standard, the charges and their possible 
ramifications deprive appellants of the opportunity to rebut the 
claims of misconduct. See, generally, Joint Auto-Facist Refugee 
Comm, v. McGrath, 341 U.S. 123, 161-173 (1951)(concurring 
opinion). In reality, the statute impermissibly shifts to the

23



appellants an impossible burden of proof: i.e., appellants are
required to establish their non-disruptive conduct. Cf. Speiser
v. Randall, 357 U.S. 513 (1958), where the court held that the
enforcement of a state tax statute can not place the burden of
showing lawfulness of conduct upon the accused:

"its enforcement through procedures which place 
the burdens of proof and persuasion on the 
taxpayer is a violation of due process.

In the instant case university officials acting without
reference to ascertainable standards declared actions by students
to be disruptive. Thus, in any case where there was a large
gathering of students on the campus and a substantial amount of
noise was generated such a determination could have been made.
In such a case an unconstitutional and impossible burden is
shifted to the student to prove that his conduct was not
disruptive. Such a statute cannot stand without ascertainable
standards to govern the imposition of its sanctions.

Chilling Effect On First Amendment Rights
Undeniably, the behavior of students within a tax-supported

institution is an appropriate subject for regulation by appellees.
And the power to regulate clearly implies the power to impose
penalties for violation of university rules and regulations.
The regulatory power is not unrestricted, however, as noted
by the Supreme Court in Shelton _v_L_ JTucker, 364 U.S. 479, 488 (1960).

" . . .  even though the governmental purpose be 
legitimate and substantial, that purpose cannot 
be pursued by means that broadly stifle fundamental- 
personal liberties when the end can be more narrowly 
achieved."

Overbreadth is inherent in the vagueness of "disruptive 
conduct" as a disciplinary standard. Appellants are young, black 
students in a predominantly black institution run by black

24



administrators who are appointed by an all-white Board of Education. 
Appellant, being discontent with the policies of the institution, 
sought redress through exercise of their First Amendment rights.
The effect of the disciplinary policy which appellees have 
superimposed on the appellants' rights of free expression and

tassociation'is readily apparent. The only question, then, before 
the Court is whether the instant statute, burdening as it does 
fundamental constitutional rights, can withstand the strict scrutiny 
called for by prior decisions of the United States Supreme Court.

It is not sufficient for appellants to come into court 
and say that this statute has not in fact been used to impair 
appellants' expression or association. What makes a statute 
unconstitutional is that it is "broad and vague" and "lends 
itself to selective enforcement against unpopular causes." See 
NAACP v. Button, 371 U.S. 415 (1963).

The United States Supreme Court has held that when government 
acts to limit the exercise of First Amendment rights there must 
be a showing of a "compelling state interest." NAACP v. Button, 
id. at 438.

It is important to stress in this brief that appellants 
fully acknowledge that school authorities may, and indeed must 
at times, regulate the exercise of First Amendment rights in 
order to protect the educational purpose of an institution. 
Appellants, further, recognize that the right to restrict First 
Amendment rights by administrators must be exercised only "in 
carefully restricted circumstances." Tinker v. Des Moines School

25



District, 393 U.S. 503 (1969). Thus, free speech is subject
to reasonable restrictions as to time, place, manner and duration. 
Shuttlesworth v. Birmingham, 382 U.S. 87 (1965); Cox v. Louisiana, 
379 U.S. 536 (1965).

The statute in question does not limit the exercise of First 
Amendment rights with regard to time, place, manner and duration. 
It, in effect, prohibits all demonstrations on the college campuses 
within the state. Such a broad prohibition on the exercise of 
First Amendment rights unnecessarily chills the exercise of the 
right, and the statute cannot stand.

Appellants also urge that the statute was unconstitutionally 
applied in the instant case. Assuming, arguendo, that the statute 
is constitutional on its face, then appellants maintain that 
the statute should not have been applied in this case. The 
record of this trial clearly indicates that Southern University 
was closed on November 16, 1972 and did not reopen until January 
3, 1973. To escape constitutional invalidity the statute in 
question must be construed as authorizing expulsions without 
a hearing only in emergencies. Only if the statute is so 
construed can it conform to the requirements of due process.

The expulsions in the instant case cannot be justified 
as emergency expulsions since no such emergency was shown 
to have existed on the date that the action was initiated in 
District Court. The statute in question (Louisiana Revised 
Statute 17:3109) provides that the president of the educational 
institution experiencing a riot or similar emergency "shall request

26



that the governor proclaim the existence of a state of emergency."
No such emergency was ever declared in the instant case. Assuming, 
arguendo, that such a state of emergency did exist on November 
16, 1972, surely it did not continue to .exist until January 3,
1973.

t

Therefore, appellcints submit that the contention that 
there was a "state of emergency" at the time of the suspensions 
is without factual basis and should not be allowed as justification for 
appellees' unlawful conduct.

2 7



Ill
m m  CONDUCT OF APPELLANTS IS CONSTITUTIONALLY
protected under the first m b  fourteenth a m e n d­
m e n t™  the constitution OF THE UNITED STATES

It is now firmly settled that minors and young adults 
are entitled to many, if not all, of the protections afforded 
by the united States constitution. In.Re Ggult, 387 U.S. 1 
(1967). indeed, the United States Supreme Court declared as 
long ago as 1943 that the First Amendment rights must be 
protected from encroachment by school authorities. Tne 
Fourteenth Amendment, as now applied to the states, protects 
the citizen against the State itself and all of its creatures- 
Eoards of Education not excepted." West Virginia State Board 
v . Barnette, 319 U.S. 624 (1943). In that case the United
States Supreme Court held unconstitutional the expulsion from 
school of students for their failure to salute the flag of 
the United States.

in more recent years the United States Supreme Court has
also spoke on the subject of First Amendment freedoms:

"First Amendment rights applied in light 
offhe special characteristics of the school 
environment are available to teachers an 
students. It can hardly be argued that eith students or teachers shed their constitutional 
rights to freedom of speech or expression at the 
schoolhouse gate."

See w-inVcr u. Des Moines Independent Community School^strict, 
393 U.S. 503 (1969). See also, Burnside v. Byars, 363 F.2d

28



744 (5th Cir. 1966). Appellants believe that the settled 
entitlement of university students to First Amendment 
liberties, as affirmed by the Supreme Court, must control the

idetermination of the instant case.
It appears that the district court was under the impression 

that the disciplining of appellants was for a violation of 
school regulations respecting the unauthorized use of school 
facilities. However, this was not the case. The record does 
indicate that appellants conducted meetings almost daily in the 
gymnasiums on campus. The record, further, indicates that Dr. 
Netterville and the Committee appointed by Governor Edwards 
attended these meetings. The record indicates that permission 
was never obtained to use these buildings for any such meetings. 
Appellees now contend that appellants violated university 
regulations in conducting its meetings in the gymnasiums without 
permission.

/assuming, arguendo, that there was a valid university 
regulation governing the use of said buildings, then that 
regulation was waived when the students conducted their meetings 
with the acquiescence of Dr. Netterville who attended and 
addressed the student body there. The record clearly indicates 
that Dr. Netterville never advised the students that they could 
not conduct their meetings in the gymnasiums even though he 
had ample opportunity to do so.

29



At issue here is not the question of disruptive conduct, 
but the right of students to protest the policies of their school. 
The method they chose was a boycott of classes. Surely, they 
urged those students in attendance to leave those classrooms.
Their methods, stated more precisely, were to enter into a class­
room and to ash the instructor for permission to address the 
students. Only after obtaining permission, did appellants 
address the students in a classroom. This method was pursuant 
to the policy and practice of the university.

Before the court,appellees support dismissal on the ground 
that appellants' actions served to disrupt orderly school 
operations. Appellants submit that their boycott was successful. 
At times the boycott was estimated to be ninety percent (90%) 
effective. Surely, the normal operation of a school is disrupted 
when ninety percent (90%) of its students are boycotting classes. 
Appellants submit that such a disruption is not actionable so 
long as the methods employed to achieve the result are lawful. 
University officials contend that appellants intimidated and 
coerced students and faculty. This contention is not supported 
by the evidence presented at the trial.

University officials as well as the court were unable to 
distinguish intimidation from "peer group pressure.” In the 
instant case, appellants merely urged other students to refrain 
from going to class. The transcript is devoid of testimony by 
any student or faculty member who was ever physically or verbally

30



attacked by any of the appellants. The record is devoid of any 
testimony indicating actionable disruptions by any of the appellants. 
Thus, the judgment of the court is unsupported by any evidence 
that appellants disrupted the operation of the university.

Appellants submit that sanctions may be imposed by 
university officials only on the basis of "substantial evidence."
See Jones v. State Board of Education, 279 F. Supp. 190 (M.D.
Tenn. 1968); Sullivan v. Houston independent School District,
307 F. Supp. 1328 (S.D. Texas 1969). Appellants further submit 
that this substantial evidence must be presented at the hearing. 
Esteban v . Central Missouri State College, supra. Appellees in 
their complaint and supporting aff.idav.its alleged that appellants 
intimidated and coerced students and teachers. Such allegations 
are unsupported by "substantial evidence."

31



IV
AN INJUNCTION ISSUE WHICH LIMITS THE EXERCISE 
OF FIRST AMENDMENT RIGHTS MUST BE COUCHED IN 
THF NARROWEST TERMS WHICH WILL ACCOMPLISH THE 
* OBJECTIVES SOUGHT TO BE ACHIEVED. THE INJUNCTION 
ISSUED BY THE TRIAL COURT VIOLATES THE FIRST 
AMENDMENT IN THAT IT IS AN ILLEGAL PRIOR RESTRAINT ON THE EXERCISE OF FIRST AMENDMENT
RIGHTS.

The final question presented to the court by appellants
appeal is whether the injunction, burdening as it does
fundamental constitutional rights, can be allowed to stand.
Appellants maintain that the granting of such a broad and
sweeping injunction violates due process of law. Before
deciding on the constitutionality of the injunction, the
court should first consider whether the district court abused
its discretion in even hearing the case. Appellees concede
that this case involved alleged acts of misconduct by students
at a state-supported university. Appellants submit that the
district court was not the proper forum to decide the question
of misconduct in the first instance. In Stricklin, supra,
the court addressed itself to this very point:

"This court is clearly not the forum for an 
initial adversary proceeding on the question 
whether a particular student is guilty of a 
particular act or omission justifying dis 
ciplinary action within the university. Had a reasonable adequate preliminary hearing been 
furnished to each of the plaintiffs within the 
university, and had a showing been made there 
comparable to that now attempted here, and had 
the Regents concluded that interim suspensions

32



were warranted, and had the plaintiffs then 
attached the interim suspensions in this court 
as a denial of procedural due process, the issue 
would have lent itself to rather ready disposition " (pp. 421-422).

In the instant case there was an- existing administrative
procedure for handling school disciplinary problems. Appellees
circumvented that procedure and filed the instant action. in
Dixon, supra, the court quoted from Professor Warren A. Seavey's
Dismissal of Students: Due Process, 70 Harvard Law Review
1406, on the question of student suspensions:

"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 principals 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. (Underline added for emphasis).

Appellants' submit that the action of the trial court in 
entertaining this action when there was an existing procedure 
for dealing with school disciplinary matters is likewise 
shocking, especially in view of the fact that only a few short 
years ago the State Board of Education had been instructed on 
procedures it should follow in school discipline cases. Zanders, 
supra.

Appellants, finally, argue that the permanent ban from 
the campus and subsequent denial of any public education vio­
lates the equal protection and due process clauses of the 
United States Constitution. Appellants urge that where there 
has been an absolute denial of education, the actions of the

33



State Board of Education and the trial court are subject to 
strict scrutiny. Students who have been expelled from school 
are denied the right to an education that is available to all 
other students. This total denial violates equal proi.ection 
of the laws unless the denial serves a compelling state 
interest that cannot be fulfilled by less drastic means.
Cf. San Antonio Independent School District v. Rodrique_z,

U.S. , 41 U.S.L.W. 4407 (March 21, 1973); Griffin v.
School Board of Prince Edward County, 377 U.S. 218 (1964).

An analysis of appellees' action clearly demonstrates 
that there was no showing whatsoever that the drastic remedy 
of permanent expulsion was necessary. It appears that no 
inquiry was made as to the past disciplinary history of the 
individual students. No exploration was made of alternative 
methods of insuring that the students, whatever they may have 
done prior to November 16, would in the future refrain from 
disruptive behavior. Alternative remedies, e_._a. , a return to 
school on a probationary status, were apparently not even 
considered. Thus, the appellees failed to meet its burden 
of showing that its proper objective of maintaining discipline 
could not be achieved by less drastic means.

Appellants submit that the objectives sought to be 
achieved by appellees must be achieved by the narrowest effective

34



means. Stated more simply:
”. . . a  governmental purpose to control or
prevent activities constitutionally subject to 
state regulation may not be achieved by means 
which sweep unnecessarily broadly and thereby 
invade the area of protected freedoms . . . even
though the governmental purposes be legitimate 
and substantial, that purpose cannot be pursued 
by means that broadly stifle fundamental personal 
liberties when the end can be more narrowly 
achieved." (NAACP v. Alabama ex. rel., Flowers,
377 U.S. 288 (1964). '

As applied to the injunction issued in the instant 
case, the court clearly abused its discretion, when it issued an 
injunction which denied to the student their right to an education 
in order to achieve a legitimate state interest when it was 
possible to achieve those objectives without infringing on 
appellants' rights to an education. Lihe the requirement that 
legislation which may trench on First Amendment interests meet 
"strict" standards of specificity, Smith v. California, 361 
U.S. 147 (1959), then an injunction which may intrude upon 
constitutionally protected rights must also focus upon the 
purposes sought to be achieved.

The question now before the court is whether the legitimate
interest of the state could have been achieved by less drastic
means. In Shelton v. Tucker, supra, the court said:

"and if there are other reasonable ways to achieve 
these goals with a lesser burden on constitutionally 
protected activities, a state may not choose the way 
of greater interference. If a state acts at all, it 
must choose the least drastic means."

35



Assuming, arguendo, that appellants engaged in disruptive 
acts and assuming that the district court should have assumed 
jurisdiction over the matter, then appellants submit that the 
court in> reaching its judgment should have granted only the 
relief required to achieve the lawful objectives of the state.
In Morrissey v. Brewer, 408 U.S. 471 (1972) (a case involving 
the legality of a parole revocation hearing), the court addressed 
itself not only to the relevant facts but also to the appropriate 
remedy:

"This hearing must be the basis for more than 
determining probable cause, it must lead to a 
final evaluation of any contested relevant 
facts and consideration of whether the facts 
as determined warrant revocation."

See also Payne v. Board of Regents of University of Texas,
355 F. Supp. 199 (W.D. Texas 1972), affirmed 474 F.2d 1397 (5th
Cir. 1973) where the court said:

"Indeed, if the plaintiffs here present no such 
danger, the Board spites its broader purpose of 
providing higher education to qualified students 
when it needlessly prevents them from continuing 
their studies."

Appellants, therefore, submit that the harsh remedy imposed 
in this case was not necessary to achieve the legitimate interest 
of the state and as such constituted an abuse of discretion.

CONCLUSION
For the above and foregoing reasons, the judgment of 

the trial court should be reversed and appellants reinstated as

36



students at Southern University pending a hearing consonant 
with due process of law.

Respectfully submitted,

348 Baronne Street 
Suite 301
New Orleans, Louisiana 70112

JOHN W. WALKER
Walker, Kaplan and Mays 
622 Pyramid Life Bldg.
Little Roch, Arkansas

JACK GREENBERG CHARLES STEPHEN RALSTON
10 Columbus Circle
New York, New York 100.19

Attorneys for Appellants

37



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Appellants 1 
Brief were served upon counsel for Appellees by depositing the 
same in United States mail, first cldss, postage prepaid,
addressed as follows:

J. Reginald Coco, Jr. 
P.0. Box 44005 
Capitol Station 
Baton Rouge, Louisiana
Vanue B. Lacour 
8950 Scenic Highway Baton Rouge, Louisiana
Arnold Gibbs
301 Napoleon Street
Baton Rouge, Louisiana

This 3rd day of August, 1973.

38



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