Alabama State Board of Education v. Dixon Petition for a Writ of Certiorari

    In the

Supreme Court of the United States 
October Term, 1961

No.

ALABAMA STATE BOARD OF EDUCATION, ET AL.,
Petitioners

versus

ST. JOHN DIXON, ET AL.,
Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

FIFTH CIRCUIT

MacDonald Gallion
Attorney General of Alabama

'Willard'■ W. Livingston
Assistant Attorney General 
of Alabama

Leslie Hall
Assistant Attorney General 
of Alabama

Gordon Madison 
Assistant Attorney General 
of Alabama

Robert P. Bradley
Governor’s Legal Adviser

State Capitol 

Montgomery 4, Alabama 

Counsel for Petitioners



In the

Supreme Court of the United States
October Term, 1961

No__________

ALABAMA STATE BOARD OF EDUCATION, ET AL.,
Petitioners

versus

ST. JOHN DIXON, ET AL.,
Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

FIFTH CIRCUIT

Petitioners pray that a Writ of Certiorari issue to review 
the judgment of the United States Court of Appeals for the 
Fifth Circuit entered in the above-entitled cause on August 
4, 1961.

OPINIONS BELOW
The opinion of the District Court (R. p. 208) is reported 

in 186 F. Supp. 945. The opinion of the Court of Appeals 
is appended hereto.

JURISDICTION
The judgment of the Court of Appeals was entered on 

August 4, 1961 (E, p. 283). The jurisdiction of this Court 
is invoked under Title 28, United States Code, Section 
1254(1).

QUESTIONS PRESENTED
1. Whether due process requires in all cases notice and 

some opportunity for hearing before students at a tax- 
supported college are expelled for misconduct (R. p. 249).

2. Whether tax supported colleges and universities are free



2

to make their own reasonable rules relative to separating 
students from said colleges and universities.

STATEMENT

In the present posture of this case, it is sufficient to state 
that Respondents were expelled from Alabama State College, 
a college for Negroes, by the Alabama State Board of Educa­
tion for misconduct described by the District Court as fol­
lows :

“The Court further finds and concludes in this case that 
the conduct of these plaintiffs and other students of the 
Alabama. State College from February 25, 1960, until they 
were expelled or probated on March 5, 1960, in organizing, 
leading and actively participating in the several demon­
strations, was calculated to provoke and did provoke dis­
cord, disorder, disturbance and disruption on the campus 
of the college and in the college classrooms, generally. This 
Court further finds and concludes that the conduct of these 
plaintiffs in persisting after warning by the president of 
the college was flagrantly in violation of the college rules 
and regulations, was prejudicial to the school, constituted 
insubordination, resulted in inciting other pupils to like 
conduct, and in general, was conduct unbecoming a student 
or future teacher in the schools . . . ” (B. p. 222)

The nature of the demonstrations are fully set forth in 
the majority and dissenting opinions of the Court of Appeals.

The Respondents were expelled by the Alabama State 
Board of Education for said misconduct, without notice or 
hearing.

REASONS FOR ALLOWANCE OF THE WRIT

The opinion of the Court of Appeals affects and applies to 
every tax supported college or university in the United 
States.



3

Here, clearly, the right of the State of Alabama acting 
through its agency, the Alabama State Board of Education, 
is paramount to any alleged constitutional rights of Respon­
dents.

Due process, unlike some legal rules, is not a technical 
conception with a fixed content unrelated to time, place, and 
circumstances.

The opinion of the Court of Appeals majority requires 
notice and hearing before expulsion from a tax-supported 
college in every conceivable case, regardless of the facts of 
each.

Applying the law as declared by the Court of Appeals 
would require notice and hearing before expulsion in the fol­
lowing cases where the student, white or Negro, had confessed 
to :

(a) Participating in panty raids

(b) Raping a co-ed.

(c) Murder

(d) Theft

(e) Defying order of a court relative to integration

(f) Having a contagious veneral disease

(g) Falsely charging fraud and misconduct against col­
lege authorities in integration suits

This Court can think of many other cases.

The opinion of the Court of Appeals is unrealistic and 
apparently without knowledge of everyday campus affairs 
in these times.



4

To attempt to lay down a formula by which Petitioners 
may meet the new “due process” declared by the Fifth Circuit 
in its present opinion is, we submit, beyond the proper pro­
cedure, even if the formula is correct.

Each college should make its own rules and should apply 
them to the facts of the case before it, “and that the function 
of a court would be to test their validity if challenged in a 
proper court proceedings” (B. p. 280).

CONCLUSION

Wherefore, for the reasons stated and the importance of 
the questions to every tax-supported college or university, it 
is respectfully submitted that this petition should be granted.

Bespectfully submitted,

MacDonald Gallion
Attorney General of Alabama

Willard W. Livingston
Assistant Attorney General 
of Alabama

Leslie Hall
Assistant Attorney General 
of Alabama

Gordon Madison
Assistant Attorney General 
of Alabama

Robert P. Bradley
Governor’s Legal Adviser
State Capitol 
Montgomery 4, Alabama
Counsel for Petitioners



CERTIFICATE OF SERVICE

I, Gordon Madison, one of the attorneys of record for
Petitioners, hereby certify that I have on this th e ....................
day of October, 1961, mailed copies of the foregoing Petition 
for Writ of Certiorari to the United States Court of Appeals 
for the Fifth Circuit to Respondents’ attorneys, Fred D. 
Gray, 34 North Perry Street, Montgomery, Alabama, and 
Thurgood Marshall, Jack Greenberg, and Derrick A. Bell, 
Jr., all of 10 Columbus Circle, New York, New York.

Gordon Madison



6

APPENDIX

OPINION OF THE COURT OF APPEALS 
ENTERED ON AUGUST 4, 1961

RIVES', Circuit Judge: Tlie question presented by the 
pleadings and evidence,1 and decisive of this appeal, is 
whether due process requires notice and some opportunity 
for hearing before students at a tax-supported college are 
expelled for misconduct. We answer that question in the 
affirmative.

The misconduct for which the students were expelled has 
never been definitely specified. Defendant Trenholm, the

i The com plain t alleges th a t “D efendan t T renho lm  on M arch 4, 1960, 
no tified  p la in tiffs  of th e ir  expulsion  effective M arch 5, 1960, 
w ith o u t any  notice, hearing , o r appeal,” and  fu r th e r  avers:

“E xpulsion  from  A labam a S ta te  College cam e w ith o u t 
w arn ing , notice of charges, o p p o rtun ity  to ap p ea r before  
defendan ts or a t  any  o ther hearing , o p p o rtun ity  to  offer te s t i­
m ony in  defense, c ro ss-exam ina tion  of accusers, appeal, o r 
o ther o p p o rtun ity  to defend  p la in tiff’s rig h t no t to  b e  a rb i­
tr a r ily  expelled  from  defen d an t College. D efendan ts’ expu lsion  
order, issued b y  th e  defendan ts function ing  u n d e r th e  s ta tu tes , 
law s and  regu la tions of th e  S ta te  of A labam a, th e reb y  deprived  
p la in tiffs  of righ ts  p ro tec ted  by th e  due process clause of th e  
F o u rteen th  A m endm ent to th e  U nited  S ta tes C onstitu tion .”

To th is av erm en t th e  defendan ts respond:

“ . . . th a t th e  facts set fo r th  in  p la in tiffs ’ com plain t 
show  no v io lation  of th e  due process clause of th e  F o u r­
te en th  A m endm ent to  th e  C onstitu tion  of th e  U n ited  S tates; 
th a t  p la in tiffs  have  no constitu tional rig h t to a tten d  A labam a 
S ta te  College; th a t th e  facts sta ted  by  p la in tiffs  in  th e ir  com ­
p la in t show  th a t th is  C ourt is w ith o u t ju risd ic tion  fo r no 
a rb itra ry  action is alleged except as conclusions unsuppo rted  
by  th e  facts alleged; th a t th e  defendan ts de term ined  in  good 
fa ith  and  w ith in  th e ir  au th o rity  as th e  govern ing  au tho rities  
of A labam a S ta te  College th a t th e  expulsions of th e  p la in tiffs  
w ere  fo r th e  best in te rests  of the  college and  based  upon u n ­
dispu ted  conduct of p la in tiffs  w h ile  studen ts a t said college.”

As w ill ap p ea r la te r  in  th is opinion, th e  issue th u s square ly  
p resen ted  by the  p lead ings w as fu lly  developed in  th e  evidence.



7

President of the College, testified that he did not know 
why the plaintiffs and three additional students were ex­
pelled and twenty other students were placed on probation. 
The notice of expulsion2 which Dr. Trenholm mailed to

2 L e tte r  from  A labam a S ta te  College, M ontgom ery, A labam a, da ted  
M arch 4, 1960, signed b y  H. C ouncil! T renholm , P residen t:

“D ear Sir:

T his com m unication  is th e  officia l no tifica tion  of you r e x ­
pu lsion  from  A labam a S ta te  College as of th e  end  of th e  1960 
W in ter Q uarter.

“As rep o rted  th rough  th e  various new s m edia, The S ta te  
B oard  of E ducation  considered th is prob lem  of A labam a S ta te  
College a t  its m eeting  on th is  p a s t W ednesday  afternoon . You 
w ere  one of th e  studen ts involved in  th is expu ls ion -d irec tive  
by  th e  S ta te  B oard  of E ducation. I  w as d irec ted  to proceed  
accordingly.
“On F rid ay  of las t w eek, I had  m ade th e  recom m endation  
th a t any  subsequen tly -con firm ed  action  w ould no t b e  e f­
fec tive  u n til th e  close of th is 1960 W in ter Q u a rte r  so th a t 
each s tu d en t could th u s have  the o p p o rtun ity  to tak e  th is 
q u a r te r’s exam inations and  to q ua lify  fo r as m uch  O H -P t 
cred it as possible fo r th e  1960 W in ter Q uarter.
“The S ta te  B oard  of E ducation , w h ich  is m ade responsible 
fo r the  superv ision  of th e  six h igher in s titu tions a t M ontgom ery, 
N orm al, F lorence, Jacksonville , L ivingston, and T roy (each of 
th e  o ther th ree  in stitu tions a t Tuscaloosa, A uburn  and  M onte- 
vallo  hav ing  separa te  boards) includes th e  follow ing in  its 
regu la tions (as ca rried  in  page 32 of T he 1958-59 R eg istra tion - 
A nnouncem ent of A labam a S ta te  College):

“ ‘ P up ils  m ay  be expelled  from  any  of th e  Colleges:
“ ‘a. F o r w illfu l disobedience to th e  ru les and  re g u ­
lations estab lished  fo r th e  conduct of th e  schools.
“ ‘b. F o r w illfu l and  continued  neglec t of stud ies and 
continued  fa ilu re  to m a in ta in  th e  stan d ard s of efficiency 
req u ired  b y  th e  ru le s  and  regulations.
“ ‘c. FO R  CONDUCT PR E JU D IC IA L  TO THE SCHOOL 
AND FO R CONDUCT UNBECOM ING A STUDENT OR 
FU TU RE TEACHER IN  SCHOOLS OF ALABAM A, FOR 
IN SU BO RD IN ATIO N  AND IN SURRECTIO N, OR FOR 
IN C ITIN G  OTHER PU P IL S  TO L IK E  CONDUCT.

“ ‘d. F o r any  conduct involving m ora l tu rp itu d e .’ ”

In  th e  notice received  b y  each of th e  studen ts p a rag rap h  “c,” 
ju s t quoted, w as capitalized.



8

each of the plaintiffs assigned no specific ground for ex­
pulsion, but referred in general terms to “this problem of 
Alabama State College.”

The acts of the students considered by the State Board 
of Education before it ordered their expulsion are de­
scribed in the opinion of the district court reported in 186 
F. Supp. 945, from which we quote in the margin.3

s “On th e  25th day  of F eb ru a ry , 1960, th e  six  p la in tiffs  in  th is case 
w ere  s tuden ts  in  good stand ing  a t th e  A labam a S ta te  College fo r 
N egroes in  M ontgom ery, A labam a . . . On th is  date, a p p ro x i­
m ate ly  tw en ty -n in e  N egro s tuden ts, inc lud ing  these  six  p la in tiffs , 
according to a p rea rran g ed  p lan , en te red  as a group a pub lic ly  
ow ned lunch  g rill located  in th e  basem en t of th e  county  C o u rt­
house in  M ontgom ery, A labam a, and  asked  to be  served. Service 
w as refused ; th e  lunchroom  w as closed; th e  N egroes refu sed  to  
leave; police au tho rities  w e re  sum m oned; and  th e  N egroes w ere  
o rdered  outside w h ere  they  rem ain ed  in  th e  co rrido r of th e  C o u rt­
house fo r app ro x im ate ly  one hour. O n th e  sam e date , Jo h n  P a t te r ­
son, as G overnor of th e  S ta te  of A labam a and  as ch a irm an  of th e  
S ta te  B oard  of E ducation , conferred  w ith  Dr. T renholm , a N egro 
ed uca to r and  p res iden t of th e  A labam a S ta te  College, concern ­
ing  th is ac tiv ity  on th e  p a r t of some of th e  studen ts. D r. T re n ­
holm  w as advised  by  th e  G overnor th a t th e  inciden t should  be 
investiga ted , and  th a t  if he  w ere  in  th e  p res id en t’s position  h e  
w ou ld  consider expu lsion  a n d /o r  o th e r ap p ro p ria te  d isc ip linary  
action. O n F eb ru a ry  26, 1960, severa l h u n d red  N egro studen ts from  
th e  A labam a S ta te  College, includ ing  severa l if no t a ll of these  
p la in tiffs , staged a m ass a ttendance  a t a tr ia l being held  in  th e  
M ontgom ery C ounty C ourthouse, involving th e  p e rju ry  p rosecu tion  
of a fellow  studen t. A fte r th e  tr ia l these studen ts filed  tw o b y  tw o 
from  th e  C ourthouse and m arched  th ro u g h  th e  city  approx im ate ly  
tw o m iles back  to th e  college. On F e b ru a ry  27, 1960, severa l 
h u n d red  N egro studen ts from  th is school in c lu d in g  severa l if  n o t 
a ll of th e  p la in tiffs  in  th is case, staged  m ass dem onstrations in  
M ontgom ery and Tuskegee, A labam a. O n th is sam e date, Dr. 
T renho lm  advised all of th e  stu d en t body th a t these dem onstrations 
and  m eetings w ere  d isrup ting  the  o rderly  conduct of the  b u s i­
ness a t th e  college and  w ere  affecting  th e  w ork  of o th er studen ts 
as w ell as w ork  of th e  p a rtic ip a tin g  s tuden ts. D r. T renho lm  
personally  w arn ed  p la in tiffs  B ern a rd  Lee, Jo seph  P e te rso n  and  
E lroy  E m bry, to  cease these  d isrup tive  dem onstra tions im m ediately , 
and  advised th e  m em bers of th e  s tuden t body a t  th e  A labam a 
S ta te  College to behave them selves and  re tu rn  to th e ir  classes . . .

“On or about M arch 1, 1960, approx im ate ly  six  h u n d red



9

As shown by the findings of the district court, just quot­
ed in footnote 3, the only demonstration which the evidence 
showed that all of the expelled students took part in was 
that in the lunch grill located in the basement of the Mont­
gomery County Courthouse. The other demonstrations were 
found to be attended “by several if not all the plaintiffs.” 
We have carefully read and studied the record, and agree 
with the district court that the evidence does not affirma­
tively show that all of the plaintiffs were present at any but 
the one demonstration.

Only one member of the State Board of Education as­
signed the demonstration attended by all of the plaintiffs 
as the sole basis for his vote to expel them. Mr. Harry 
Ayers testified:

“Q. Mr. Ayers, did you vote to expel these negro 
students because they went to the Court House and 
asked to be served at the white lunch counter?

“A. No. I voted because they violated a law of Ala­
bama.

“Q. What law of Alabama had they violated?

“A. That separating of the races in public places of 
that kind.

“Q. And the fact that they went up there and re­
quested service, by violating the Alabama law, then

studen ts of th e  A labam a S ta te  College engaged in  h ym n  singing 
and  speech m ak ing  on th e  steps of th e  S ta te  C apitol. P la in tiff 
B ern a rd  L ee addressed  s tu d en ts  a t  th is  dem onstration , and  th e  
dem onstra tion  w as a tten d ed  b y  severa l if no t all of th e  p la in tiffs . 
P la in tiff  B ern a rd  L ee a t th is  tim e called  on th e  studen ts to  s tr ik e  
and  boyco tt th e  college if any  s tu d en ts  w ere  expelled  because of 
these  dem onstra tions.”



10

you voted to have them expelled?

“A. Yes.

“Q. And that is your reason why you voted?

“A. That is the reason.”

The most elaborate grounds for expulsion were assigned in 
the testimony of Governor Patterson:

“Q. There is an allegation in the complaint, Gover­
nor, that — I believe it is paragraph six, the de­
fendants’ action of expulsion was taken without regard 
to any valid rule or regulation concerning student 
conduct and merely retaliated against, punished, and 
sought to intimidate plaintiffs for having lawfully 
sought service in a publicly owned lunch room with 
service; is that statement true or false?

“.A Well, that is not true; the action taken by the 
State Board of Education was — was taken to pre­
vent — to prevent incidents happening by students at 
the College that would bring — bring discredit upon
— upon the School and be prejudicial to the School, 
and the State — as I said before, the State Board of 
Education took — considered at the time it expelled 
these students several incidents, one at the Court 
House at the lunch room demonstration, the one the 
next day at the trial of this student, the marching on 
the steps of the State Capitol, and also this rally 
held at the church, where — where it was reported 
that — that statements were made against the ad­
ministration of the School. In addition to that, the
— the feeling going around in the community here 
due to — due to the reports of these incidents of the 
students, by the students, and due to reports of in-



11

eidents occurring involving violence in other States, 
which happened prior to these things starting here in 
Alabama, all of these things were discussed l>y the 
State Board of Education prior to the taking of the 
action that they did on March 2, and as I was present 
and acting as Chairman, as a member of the Board,
I voted to expel these students and to put these others 
on probation because I felt that that was what was in 
the best interest of the College. And the — I felt that 
the action should be — should be prompt and immed­
iate, because if something — something had not been 
done, in my opinion, it would have resulted in violence 
and disorder, and that we wanted to prevent, and we 
felt that we had a duty to the — to the — to the par­
ents of the students and to the State to require that 
the students behave themselves while they are attend­
ing a State College, and that is (sic) the reasons why 
we took the action that we did. That is all.”

Superintendent of Education Stewart testified that he 
voted for expulsion because the students had broken rules 
and regulations pertaining to all of the State institutions, 
and, when required to be more specific, testified:

“The Court: What rule had been broken is the ques­
tion, that justified the expulsion insofar as he is con­
cerned?

“A. I think demonstrations without the consent of the 
president of an institution.”

The testimony of other members of the Board assigned 
somewhat varying and differing grounds and reasons for 
their votes to expel the plaintiffs.

The district court found the general nature of the pro­
ceedings before the State Board of Education, the action of



12

the Board, and the official notice of expulsion given to the 
students as follows:

“Investigations into this conduct were made by 
Dr. Trenholm, as president of the Alabama State 
College, the Director of Public Safety for the State 
of Alabama under directions of the Governor, and 
by the investigative staff of the Attorney General for 
the State of Alabama.

“ On or about March 2, 1960, the State Board of 
Education met and received reports from the Gov­
ernor of the State of Alabama, which reports embodied 
the investigations that had been made and which re­
ports identified these six plaintiffs, together with 
several others, as the ‘ring leaders’ for the group of 
students that had been participating in the above- 
recited activities. During this meeting, Dr. Tren­
holm, in his capacity as president of the college, re­
ported to the assembled members of the State Board 
of Education that the action of these students in dem­
onstrating on the college campus and in certain down­
town areas was having a disruptive influence on the 
work of the other students at the college and upon the 
orderly operation of the college in general. Dr. Tren­
holm further reported to the Board that, in his opinion, 
he as president of the college could not control future 
disruptions and demonstrations. There were twenty- 
nine of the Negro students identified as the core of the 
organization that was responsible for these demonstra­
tions. This group of twenty-nine included these six 
plaintiffs. After hearing these reports and recommen­
dations and upon the recommendation of the Gover­
nor as chairman of the Board, the Board voted unani­
mously, expelling nine students, including these six 
plaintiffs, and placing twenty students on probation.



13

This action was taken by Dr. Trenholm as president 
of the college, acting pursuant to the instructions of 
the State Board of Education. Each of these plain­
tiffs, together with the other students expelled, was 
officially notified of his expulsion on March 4th or 
5th, I960.4 No formal charges were placed against 
these students and no hearing was granted any of 
them prior to their expulsion.”

“4[Same as footnote 2, supra, of this opinion.]”
Dixon v. Alabama State Board of Education, M.D. Ala., 
1960, 186 F. Supp. 945, 948, 949.

The evidence clearly shows that the question for decision 
does not concern the sufficiency of the notice or the adequacy 
of the hearing, but is whether the students had a right to 
any notice or hearing whatever before being expelled.4

* The p la in tiff  D ixon testified :

“Q. Now  on th a t day  —  from  F eb ru a ry  25 u n til th e  da te  
th a t  you received  yo u r le tte r  of expulsion, w hich  you have  
a lready  iden tified , w ill you  te ll th e  C ourt w h e th e r any  person  
a t  th e  College gave you  any  officia l no tice  th a t y o u r conduct 
w as unbecom ing as a  stu d en t of A labam a S ta te  College?
“A. No.

“Q. Did th e  p res id en t or an y  o th er person  a t th e  College 
a rran g e  fo r any  ty p e  of h earin g  w h ere  you h ad  an  oppor­
tu n ity  to p resen t your side p rio r to  th e  tim e you w ere  e x ­
pelled?

“A. No.

“Q. Y our answ er w as no?

“A. No.”

The testim ony  of G overnor P a tte rson , C hairm an  of th e  S ta te  
B oard  of E ducation , w as in  accord:

“Q. Did th e  S ta te  B oard  of E ducation , p r io r  to  th e  tim e it  
expelled  th e  p la in tiffs , give them  an  o p p o rtun ity  to  appear 
e ith e r befo re  th e  College o r before  th e  B oard  in  o rd e r to 
p resen t th e ir  sides of th is pic — of th is incident?

“A. No. o th e r th a n  receiv ing  the rep o rt from  Dr. T renholm  
about it.



14

The district court wrote at some length on that question, as 
appears from its opinion. Dixon v. Alabama State Board 
of Education, supra. 186 F. Supp. at pp. 950-952. After 
careful study and consideration, we find ourselves unable 
to agree with the conclusion of the district court that no 
notice or opportunity for any kind of hearing was required 
before these students were expelled.

It is true, as the district court said, that “ . . . there 
is no statute or rule that requires formal charges and/or 
a hearing . . . , ” but the evidence is without dispute that 
the usual practice at Alabama State College had been to 
give a hearing and opportunity to offer defenses before 
expelling a student. Defendant Trenholm, the College Presi­
dent, testified:

“Q. The essence of the question was, will you relate

“ Q. D id th e  B oard  d irec t D r. T renho lm  to give th e  s tu ­
den ts fo rm al notice of w hy  th ey  w ere  expelled?
“A. No, th e  B oard  — th e  B oard  passed  a reso lu tion  in ­
s tru c tin g  D r. T renho lm  to  ex p e l th e  studen ts and  p u t tw en ty  
on p robation , and  D r. T renho lm  ca rried  th a t  ou t.”

S ta te  S u p erin ten d en t of E ducation  S tew art testified:
“Q. W ere these s tuden ts  given any  ty p e  of hearing , or w ere  
fo rm al charges filed  against them  befo re they  w ere  expelled? 
“A. T hey w ere  — Dr. T renho lm  expelled  th e  studen ts; th ey  
w e ren ’t  g iven any  hearing .
“Q. No hearing?
“A. I don’t  th in k  th ey  w ou ld  be  g iven a h earin g  in  an y  of 
ou r schools in  th is S tate; if th ey  couldn’t  behave them selves, 
I  th in k  th ey  should go hom e.
“Q. Do you  —  w ere  they  w arn ed  a t a ll p rio r to expulsion? 
“A. N ot as I know  of; I can’t answ er th a t question . D r. 
T renho lm  w as in  th e  m eeting, and  th a t  afternoon  a fte r  th e  
B oard  m eeting, h e  w as g iven  th e  —  th e  decision, and  he  w as 
th e  one w ho took action.
“Q. W hen th e  S ta te  B oard  of E ducation  expe ls a studen t, 
is th e re  any  possib ility  of appeal or any  oppo rtun ity  fo r h im  to 
p resen t h is side of th e  story?
“A. I nev er have  h ea rd  of it .”



15

to the Court the usual steps that are taken when a 
student’s conduct has developed to the point where 
it is necessary for the administration to punish him 
for that conduct?

“A. We normally would have conference with the 
student and notify him that he was being asked to 
withdraw, and we would indicate why he was being- 
asked to withdraw. That would be applicable to aca­
demic 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.”

Whenever a governmental body acts so as to injure an 
individual, the Constitution requires that the act be con­
sonant with due process of law. The minimum procedural 
requirements necessary to satisfy due process depend upon 
the circumstances and the interests of the parties involved. 
As stated by Mr. Justice Frankfurter concurring in Joint 
Anti-Fascist Committee v. McGrath, 1951, 341 U. S. 123, 163:

“Whether the ex parte procedure to which the peti­
tioners were subjected duly observed The rudiments 
of fair play,’ . . . cannot . . .  be tested by mere 
generalities or sentiments abstractly appealing. The 
precise nature of the interest that has been adversely 
affected, the manner in which this was done, the 
reasons for doing it, the available alternatives to the 
procedure that was followed, the protection implicit 
in the office of the functionary whose conduct is



16

challenged, the balance of hurt complained of and 
good accomplished — these are some of the considera­
tions that must enter into the judicial judgment.”

Just last month, a closely divided Supreme Court held 
in a. case where the governmental power was almost ab­
solute and the private interest was slight that no hearing 
was required. Cafeteria and Restaurant. 1 i orko s Union 
v. McElroy, et ah, U. S. m /s, Oct. Term 1960, No. 97, de­
cided June 19, 1961. In that case, a short-order cook work­
ing for a privately operated cafeteria on the premises of 
the Naval Gun Factory in the City of Washington was 
excluded from the Gun Factory as a security risk. S'o, 
too, the due process clause does not require that an alien 
never admitted to this Country he granted a hearing be­
fore being excluded. K nauff v. Shaughnessy, 1950, 338 
U. S. 537, 542, 543. In such case the executive power as 
implemented by Congress to exclude aliens is absolute 
and not subject to the review of any court, unless express­
ly authorized by Congress. On the other hand, once an 
alien has been admitted to lawful residence in the United 
States and remains physically present here it has been 
held that, “although Congress may prescribe conditions for 
his expulsion and deportation, not even Congress may expel 
him without allowing him a fair opportunity to be heard.” 
Kwong Had Chew v. Colding, 1953, 344 U. b. 590, 59 1, o98.

It is not enough to say, as did the district court in the 
present case, “The right to attend a public college or uni­
versity is not in and of itself a constitutional right.” (186 
F. Supp. at 950.) That argument was emphatically an­
swered by the Supreme Court in the Cafeteria and Restau­
rant Workers Union case, supra, when it said that the ques­
tion of whether “ . . . summarily denying Rachel Brawner 
access to the site of her former employment violated the 
requirements of the Due Process Clause of the Fifth Amend-



17

ment . . . cannot be answered by easy assertion that, be­
cause she had no constitutional right to be there in the first 
place, she was not deprived of liberty or property by the 
Superintendent’s action. 'One may not have a constitutional 
right to go to Baghdad, but the Government may not pro­
hibit one from going there unless by means consonant with 
due process of law.’ ” As in that case, so here, it is neces­
sary to consider “the nature both of the private interest 
which has been impaired and the governmental power which 
has been exercised.”

The appellees urge upon us that under a provision of the 
Board of Education’s regulations the appellants waived 
any right to notice and a hearing before being expelled for 
misconduct,

“Attendance at any college is on the basis of a 
mutual decision of the student’s parents and of the 
college. Attendance at a particular college is volun­
tary and is different from attendance at a public 
school where the pupil may be required to attend a 
particular school which is located in the neighbor­
hood or district in which the pupil’s family may live. 
Just as a student may choose to withdraw from a, par­
ticular college at any time for any personally-deter­
mined reason, the college may also at any time decline 
to continue to accept responsibility for the supervision 
and service to any student with whom the relation­
ship becomes unpleasant and difficult.”

We do not read this provision to clearly indicate an in­
tent on the part of the student to waive notice and a hear­
ing before expulsion. If, however, we should so assume, it 
nonetheless remains true that the State cannot condition 
the granting of even a privilege upon the renunciation of 
the constitutional right to procedural due process. See



18

Slochower v. Board of Education, 1956, 350 U. S. 551, 555; 
Wieman v. Updegraff, 1952, 344 TJ. S. 183, 191, 192; United 
Piddle Workers v. Mitchell, 1947, 330 IT. S .  75, 100 ;  Shelton 
v. Tucker, U. S. m/s, Oct. Term, 1960, No. 14. Only private 
associations have the right to obtain a waiver of notice and 
hearing before depriving a member of a valuable right. And 
even here, the right to notice and a hearing is so funda­
mental to the conduct of our society that the waiver must 
be clear and explicit. Medical and Surgical Society of 
Montgomery County v. Weatherby, 75 Ala. 248, 256-59. In 
the absence of such an explicit waiver, Alabama has required 
that even private associations must provide notice and a hear­
ing before expulsion. In Medical and Surgical Society of 
Montgomery County v. Weathering supra, it was held that a 
physician could not be expelled from a medical society with­
out notice and a hearing. In Local Union No. 57, etc. r. 
Boyd, Ala., 1944, 16 Bo. 2d 705, 711, a local union was 
ordered to reinstate one of its members expelled after a 
hearing of which he had insufficient notice.

The precise nature of the private interest involved in 
this case is the right to remain at a public institution of 
higher learning in which the plaintiffs were students in 
good standing. It requires no argument to demonstrate 
that education is vital and, indeed, basic to civilized society. 
Without sufficient education the plaintiffs would not be 
able to earn an adequate livelihood, to enjoy life to the 
fullest, or to fulfill as completely as possible the duties and 
responsibilities of good citizens.

There, was no offer to prove that other colleges are open 
to the plaintiffs. If so, the plaintiffs would nonetheless 
be injured by the interruption of their course of studies in 
mid-term. It is most unlikely that a public college would
accept a student expelled from another public college of 
the same state. Indeed, expulsion may well prejudice the 
student in completing his education at any other institution.



19

Surely no one can question that the right to remain at the 
college in which the plaintiffs were students in good standing 
is an interest of extremely great value.

Turning then to the nature of the governmental power 
to expel the plaintiffs, it must be conceded, as was held 
by the district court, that that power is not unlimited and 
cannot he arbitrarily exercised. Admittedly, there must 
be some reasonable and constitutional ground for expulsion, 
or the courts would have a duty to require reinstatement. 
The possibility of arbitrary action is not excluded by the 
existence of reasonable regulations. There may be arbi­
trary application of the rule to the facts of a particular 
case. Indeed, that result is well nigh inevitable when the 
Board hears only one side of the issue. In the disciplining 
of college students there are no considerations of immediate 
danger to the public, or of peril to the national security, 
which should prevent the Board from exercising at least 
the fundamental principles of fairness by giving the ac­
cused students notice of the charges and an opportunity 
to be heard in their own defense. Indeed, the example 
set by the Board in failing so to do, if not corrected by the 
courts, can well break the spirits of the expelled students 
and of others familiar with the injustice, and do inestimable 
harm to their education.

The district court, however, felt that it was governed 
by precedent, and stated that, “the courts have consistent­
ly upheld the validity of regulations that have the effect 
of reserving to the college the right to dismiss students at 
any time for any reason without divulging its reason other 
than its being for the general benefit of the institution.” 
With deference, we must hold that the district court has 
simply misinterpreted the precedents.

The language above quoted from the district court is 
based upon language found in 14 C. J. S., Colleges and Uni-



20

versifies, § 26, p. 1360, which, in turn, is paraphrased from 
Anthony v. Syracuse University, 231 N. Y. Supp. 435, re­
versing 223 1ST. Y. Supp. 797. (14 C. J. S., Colleges and
Universities, § 26, pp. 1360, 1363 note 70.) This case, how 
ever, concerns a private university and follows the well- 
settled rule that the relations between a student and a 
private university are a matter of contract. The Anthony 
case held that the plaintiffs had specifically waived their 
rights to notice and hearing. See also Barber v. Bryn Mawr, 
122 Atl. 220 (Pa., 1923). The precedents for public col­
leges are collected in a recent annotation cited by the dis­
trict court. 58 A.L.R. 2d 903-20. We have read all of the 
cases cited to the point, and we agree with what the an­
notator himself says: “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 A.L.R. 2d at p. 909. None 
held that no hearing whatsoever was required. Two cases 
not found in the annotation have held that some form of 
hearing is required. In Commonwealth ex rel, H ill v. 
McCauley, 3 Pa, Co. Ct. Rep. 77 (1886), the court went 
so far as to say that an informal presentation of the charges 
was insufficient and that a state-supported college must 
grant a student a full hearing on the' charges before ex­
pulsion for misconduct. In Gleason v. University of M in­
nesota, 116 X. W. 650 (1908), on reviewing the overruling 
of the state’s demurrer to a petition for mandamus for rein­
statement, the court held that the plaintiff stated a prima 
facie case upon showing that he had been expelled with 
out a hearing for alleged insufficiency in work and acts of 
insubordination against the faculty.

The appellees rely also upon Lucy v. Adams, D.C.N.D. 
Ala., C. A. No. 652, January 1957, where Autherine Lucy



21

was expelled from the University of Alabama without notice 
or hearing. That case, however, is not in point. Autherine 
Lucy did not raise the issue of an absence of notice or hearing.

It was not a case denying any hearing whatsoever but one 
passing upon the adequacy of the hearing,3 which provoked 
from Professor Warren A. Seavey of Harvard the eloquent 
comment:

“At this time when many are worried about dis­
missal from public service, when only because of the 
overriding 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 benighted countries which have no due 
process protection, when many of our courts are so 
careful in the protection 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 in­
stitution, which can function properly only if our 
freedoms are preserved, should not understand the 
elementary principles of fair play. It is equally shock­
ing to find that a court supports them in denying to 
a student the protection given to a. pickpocket.”

Dismissal of Students: “Due Process,” Warren A. Seavey, 70 
Harvard Law Review 1406, 1407. We are confident that 
precedent as well as a most fundamental constitutional 
principle support our holding that due process requires notice 
and some opportunity for hearing before a student at a tax- 
supported college is expelled for misconduct.

For the guidance of the parties in the event of further
s People  ex re l. B lue tt v . B oard  of T rustees of U n ivers ity  of Illinois, 

10 111. App. 2d 207, 134 N. E. 2d 635.



22

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, com­
ply with the following standards. The notice should con­
tain a statement of the specific charges and grounds which, 
if proven, would justify expulsion under the regulations 
of the Board of Education. The nature of the hearing should 
vary depending upon the circumstances of the particular 
case. The case before us requires something more than an 
informal interview with an administrative authority of the 
college. By its nature, a charge of misconduct, as opposed 
to a failure to meet the scholastic standards of the college, 
depends upon a collection of the facts concerning the charged 
misconduct, easily colored hv the point of view of the wit­
nesses. In such circumstances, a hearing which gives the 
Board or the administrative authorities of the college an 
opportunity to hear both sides in considerable detail is best 
suited to protect the rights of all involved. This is not to 
imply that a full-dress judicial hearing, with the right to 
cross-examine witnesses, is required. Such a hearing, with 
the attending publicity and disturbance of college activities, 
might be detrimental to the college’s educational atmosphere 
and impractical to carry out. Nevertheless, the rudiments 
of an adversary proceeding may be preserved without en­
croaching upon the interests of the college. In the instant 
case, 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 he given the 
opportunity to present to the Board, or at least to an ad­
ministrative 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 the hearing is not 
before the Board directly, the results and findings of the 
hearing should he presented in a report open to the student’s 
inspection. If these rudimentary elements of fair play are



23

followed in a case of misconduct of this particular type, we 
feel that the requirements of due process of law will have 
been fulfilled.

The judgment of the district court is reversed and the 
cause is remanded for further proceedings consistent with 
this opinion.

REVERSED AND REMANDED. 
CAMERON, Circuit Judge, Dissenting:

The opinion of the district court in this case1 is so lucid, 
literate and moderate that I cannot forego expressing sur­
prise that my brethren of the majority can find fault with 
it. In this dissent I shall try to avoid repeating what the 
lower court has so well said and to confine myself to an ef­
fort to refute the holdings of the majority where they do 
attack and reject the lower court’s opinion.

A good place to start is the quotation made by the ma­
jority from the recent case of Cafeteria and Restaurant 
'Workers Union v. McElroy, 1961, 29 L. W. 4743, 4745 et seq.,
------ TT. S!. ------ , wherein the discussion is made of one’s
right to “go to Baghdad.” I would add to the language 
quoted by the majority from that case the sentences which 
follow it:

“It is the petitioner’s claim that due process in 
this case required that Rachel Brawner be advised 
of the specific grounds for her exclusion and be 
accorded a hearing at which she might refute them.
We are satisfied, however, that under the circum­
stances of this case such a procedure was not con­
stitutionally required.

“The Fifth Amendment does not require a trial-
i 186 F. Supp. 945, 1960.



24

type hearing in every conceivable case of govern­
ment impairment of private interests. ‘ . . . The very 
nature of due process negates any concept of inflexible 
procedures universally applicable to every imaginable 
situation . . . .  “Due process,” unlike some legal rules, 
is not a technical conception with a fixed content un­
related to time, place and circumstances.’ It is ‘com­
pounded of history, reason, the past course of de­
cisions . . . ’ Joint Anti-Fascist Comm. v. McGrath, 
341 U. S. 123, 162-163 (concurring opinion).

“As these and other cases make clear, considera­
tion of what procedure due process may require under 
any given set of circumstances must begin with a de­
termination of the precise nature of the government 
function involved as well as of the private interest 
that has been affected by governmental action. Where 
it has been possible to characterize that private in­
terest (perhaps in over-simplification) as a mere 
privilege subject to the Executive’s plenary power, it 
has traditionally been held that notice and hearing 
are not constitutionally required . . . ”2 [Emphasis 
added.]

2 T he d issen ting  opinion in  th a t case contains language w hich  fu r ­
th e r  illum ina tes th e  p rob lem  befo re  us:

“ . . . B u t th e  C ourt goes beyond th a t. I t  ho lds th a t 
th e  m ere  assertion  b y  governm en t th a t  exclusion is fo r a 
va lid  reason  forecloses fu r th e r  inqu iry . T h a t is, un less th e  
governm en t o fficia l is foo lish  enough to  adm it w h a t h e  is 
doing —  and  few  w ill be  so foolish a f te r  to d ay ’s decision 
—  h e  m ay  em ploy ‘secu rity  req u irem en ts’ as a b lin d  beh ind  
w hich  to  dism iss a t  w ill fo r th e  m ost d iscrim inato ry  of 
causes.

“Such a re su lt in  effect nu llifies th e  su b stan tiv e  rig h t —• 
no t to be  a rb itra r ily  in ju red  b y  governm ent —  w hich  th e  
C ourt p u rp o rts  to  recognize. . . . F o r u n d e r to d ay ’s holding 
pe titio n e r is en titled  to no process a t all. She is n o t to ld  
w h a t she did w rong; she is n o t g iven a chance to  defend  h e r -



25

The failure of the majority to follow the reasoning of 
M cElroy, supra, results, in my opinion, from a basic failure 
to understand the nature and mission of schools. The prob­
lem presented is sui generis.

Everyone who has dealt with schools knows that it is 
necessary to make many rules governing the conduct of 
those who attend them, which do not reach the concept 
of criminality but which are designed to regulate the re­
lationship between school management and the student 
based upon practical and ethical considerations which the 
courts know very little about and with which they are not 
equipped to deal. To extend the injunctive power of federal 
courts to the problems of day to day dealings between school 
authority and student discipline and morale is to add to the 
now crushing responsibilities of federal functionaries, the 
necessity of qualifying as a Gargantuan aggregation of wet 
nurses or baby sitters. I do not believe that a balanced 
consideration of the problem with which we are dealing con­
templates any such extreme attitude. Indeed, I think that 
the majority has had to adopt the minority view of the 
courts in order to reach the determination it has here an­
nounced.

Nor do I find of favorable (to the majority) significance 
the introductory sentence quoted by it from the annotation 
in 58 ALB. at page 909.3 The quoted statement implies,

self. She m ay  be th e  v ic tim  of th e  basest calum ny, perhaps 
even th e  caprice of th e  governm en t officials in  w hose pow er 
h e r s ta tu s  res ted  com pletely. In  such a case, I cannot believe 
th a t  she is n o t en titled  to some procedures.

“ ‘[T ]h e  rig h t to b e  h ea rd  befo re  being  condem ned to 
su ffe r grievous loss of any  k ind , even  though  i t  m ay  n o t in ­
volve th e  stigm a and  h ard sh ip s of a crim inal conviction, is a 
p rinc ip le  basic to  ou r society.’ ” [C iting  M cG rath, supra.]

3 The cases involving suspension or expulsion  of a stu d en t from  a 
public college or u n iv e rsity  all invo lve the  question  w h eth er the 
h ea rin g  g iven to  th e  stu d en t w as adequate . In every instance the 
suffic iency of the hearing was upheld.” [E m phasis A dded.]



26

rather, that there is no case where a student at a public 
college or university lias taken the position that he was 
entitled to a hearing before being expelled. More in point, 
it seems to me, is the addition to the text found on page 
4 of the July 1961 pocket part of American Jurisprudence, 
Yol. 55, § 22, page 16, of the article on Universities and 
Colleges. I quote the closing sentences of 55 Am. Jur., § 22, 
pp. 15-16 of that article, adding the paragraph appearing in 
the pocket part:

. . Where the conduct of a student is such that 
his continued presence in the school will be disas­
trous to its proper discipline and to the morals of 
the other pupils, his expulsion is justifiable. Only 
where it is clear that such an action with respect to 
a student has not been an honest exercise of dis­
cretion, or has arisen from some motive extraneous 
to the purposes committed to that discretion, may 
the courts be called upon for relief.

“There is a conflict of authority as to whether 
notice of the charges and hearing are required before 
suspensions or expulsion of a student. Assuming that 
a student is entitled to a hearing prior to his expul­
sion from an institution of learning, the authorities 
are not in agreement as to what kind of hearing must 
be given to him. A few cases hold that he is entitled 
to a formal hearing clothed with all the attributes 
of a judicial hearing. However, the weight of author­
ity is to the effect that no formal hearing is required.”

The general rule covering the subtitle “Government and 
Discipline” in the general treatise on Colleges and Uni­
versities is thus stated in the black-typed summary of the 
law in Yol. 14 Corpus Juris Secundum, § 26, page 1360:

“Broadly speaking, the right of a student to at-



27

tend a public or private college or university is 
subject to the condition that he comply with its 
scholastic and disciplinary requirements, and the 
proper college authorities may in the exercise of a 
broad discretion formulate and enforce reasonable 
rules and regulations in both respects. The courts 
will not interfere in the absence of an abuse of such 
discretion.”

All of these expressions of the general rule seem to me to 
justify and require our adherence to that rule under the 
facts of this case. The majority opinion sets out many of 
them, but I think its statement should be supplemented and 
set forth in chronological order.

Appellants and other members of the student body of 
Alabama State College had, for a period prior to the hap­
penings outlined, been attending meetings at Negro churches 
and other places where outsiders, including professional 
agitators, had been counseling that the students of that in­
stitution engage in “demonstrations.” Appellants, along 
with a total of between twenty-nine and thirty-five students 
of the college, proceeded en masse into a snack bar in the 
basement of the county court house at Montgomery, Ala­
bama, seating themselves in the privately owned facility so as 
to occupy nine tables. The lady in charge of the eating place 
asked them to depart and they refused. Officers were called 
and, upon their arrival, they first asked that all white patrons 
leave the premises, which was promptly done. The Negroes 
refused their request to leave until the lights were put out, 
whereupon they proceeded to the hall of the court house. 
Inasmuch as they were blocking ingress and egress there­
from ,they were ordered by the officers to take their stands 
against the walls, which they did. They remained in the court­
house about one and one-half hours following their entrance 
about 11:00 A. M. They refused to give their names to re-



28

porters who interviewed them. The occurrence took place 
on February 25, 1960.

The president of the college, H. Councill Trenholm, in­
vestigated the occurrence at the direction of the governor 
of Alabama and made his report and recommendation to 
the State Board of Education. About five o’clock on the 
afternoon of the occurrence he had released a mimeographed 
statement making an appeal to the students and staff that 
they “refrain from any activities which may have a damag­
ing effect upon the reputation and relationships of college 
and . . . have concern that there not be any type of further 
involvement of any identified student of Alabama State 
College.” He reported that, from his investigation con­
ducted on the campus, it was his opinion that twenty-nine 
students who were the leaders in the activities he had in­
vestigated were subject to expulsion.4

On February 26, 1960, several hundred students, including 
appellants, staged another demonstration at the Montgomery 
Court House by attending a trial where a fellow student was 
charged with perjury to which he pled guilty. The several 
hundred demonstrators marched around the court house and 
then walked, two by two, back to the college about two 
miles away. A snapshot received in evidence depicted a 
mob-like gathering, on the college campus on the same day, 
of a large number of students ganged about the college 
president of thirty-five years tenure. The expressions on the 
faces of the participants, including at least some of appel-

4 T he governor recom m ended, how ever, th a t only B e rn a rd  Lee, N orfolk, 
Va.; St. Jo h n  D ixon, N ational City, Cal.; E dw ard  E. Jones, P it ts ­
bu rg , Pa.; L eon Rice, Chicago, 111.; H ow ard  Shipm an, N ew  Y ork, 
N.Y.; E lro y  E m ory, R agland , A la.; Jam es M cFadden, P rich a rd , A la.; 
Jo seph  Peterson , N ew castle, A la.; M arzette  W atts, M ontgom ery, 
A la., be  expelled  a t th e  end of th e  cu rren t te rm  and  th a t th e  r e ­
m a inder be p laced on p ro b a tio n  and  allow ed to  rem a in  in  school 
pend ing  good behav io r.



29

hints, portrayed a group in the grip of anger, exhibiting a 
threatening and menacing attitude. The scene spoke more 
eloquently to the trial court of the spirit and attitude of the 
appellants and the followers they had gathered than many 
reams of oral testimony could have.

February 27, several hundred Negro college students, in­
cluding appellants, staged mass demonstrations in Mont­
gomery and Tuskegee, some of which were attended by 
violence. On the same day a large group of students from 
the college, including appellants, gathered at a Negro church 
and one of appellants, Bernard Lee, filed a petition with the 
governor in which it was stated, among other things: “We 
strongly feel that our conduct was not. of such that we should 
owe our college or state an apology. If our conduct lias 
disturbed you or President Trenholm, we regret this. But we 
have no sense of shame or regret for our conduct . . .”

On the same day the governor was advised by the college 
president that he had called upon members of the student 
body to behave themselves and return to classes and had 
urged the students not to engage in conduct which might 
cause racial disturbances. A like plea was made by the 
Attorney General of Alabama both to white and colored 
people. March 1, 1960, at about 8:00 A.M., approximately 
six hundred students of the college marched to the steps of 
the state capitol, where student leaders, including appel­
lants, made addresses calling on all the students to boycott 
and strike against the college if any students were expelled. 
The gathering was policed by a number of the state of­
ficials to prevent untoward incidents.

March 2, 1960, the State Board of Education met and 
heard Dr. Trenholm’s report, ordering the nine students 
mentioned above to be expelled and twenty to be placed on 
probation. The Board had the benefit of reports made by



30

agents of the Department of Public Safety, which revealed 
the names of the demonstrators and of their leaders, as well 
as that of college president and of the governor who had 
witnessed portions of the demonstrations.

March 3, 1960, the date of the expulsion order, about two 
thousand Negro students staged a demonstration at a church 
near the college campus at which appellants were the leaders. 
They urged the students to refrain from returning to classes 
and from registration for the new term, and publicly de­
nounced the State Board and the college administration. 
The students stayed away from classes and milled about the 
campus in general disorder.

These events all transpired before the expulsion of ap­
pellants. But the “demonstrations” did not cease. March 
4, a wildly cheering crowd of Negro students gathered at a 
church and were addressed by one or more agitators of 
national prominence, and an appeal was made for a meet­
ing the following Sunday on the steps of the state capitol. 
At the meeting, one or more of appellants and a number of 
other students were very critical of the governor and the 
college administration.

March 5, 1960, appellant Bernard Lee, representing the 
demonstrators, sent a telegram to the president of the 
student body at Tuskegee urging them to join in the dem­
onstrations.

March 6, 1960, several thousand Negroes, including ap­
pellants and hundreds of the students of the college as­
sembled near the steps of the capitol and approximately 
ten thousand white people gathered in the same vicinity. 
A large gathering of city and county officers and the use of 
fire hose finally avoided an open clash between the two 
groups. For a number of days following, there were demon-



31

stations on the campus of the college accompanied by some 
violence and some arrests were made by the police.

March 11, the entire group which had initiated the dem­
onstrations were convicted and fined. Several months later, 
appellants and several other students were still engaged in 
constant efforts to stir up trouble and dissension among the 
students and faculty of the college.

After appellants were expelled a document signed by one 
of them, on behalf of the executive committee of the student 
body, issued a. public call to the student body of every school 
in Alabama, in the South and in the nation to support the 
appellants, and the same document called upon parents, 
teachers and the people of the nation to give them support.

Each of the appellants had, in his application for admis­
sion to the college, agreed in writing to abide by college 
policies and regulations relating to admission, attendance, 
conduct, withdrawal or dismissal.

A part of the foregoing recital is taken from the affidavit 
of Governor Patterson of Alabama. It was attached to and 
offered as a portion of the answer of appellees to the com­
plaint and the motion for preliminary injunction. This 
motion was considered along with all of the other motions 
filed and with the hearing of witnesses and was included 
in the order from which this appeal was taken. The affi­
davit was competent evidence even in a court. Rule 43 (e) 
F. R. C. P.

The opinion of the majority stresses that definite proof 
was not made of the attendance of all of the appellants at 
all of the “demonstrations” (the word is taken from the 
testimony of the only appellant who testified in the court 
below). I think that ample showing was made to establish



32

that the appellants were at all of the demonstrations and 
were the ringleaders of them. They participated in the 
enterprise as joint venturers from the start and every docu­
ment emanating from them showed the adhesiveness of the 
group.

It is interesting to find what the majority considers to he 
the significance of an assumed absence of proof in the light 
of the fact that only one of the appellants took the witness 
stand in the court below, although they all announced at 
the outset that they were ready for trial and manifestly 
were present in court. Their presence and participation in 
all which transpired was shown by believable evidence and 
circumstances and stand wholly undenied. In a recent case 
charging a fraudulent civil conspiracy against a defendant3 
where the proof was very slim, this Court speaking through 
Judge Hives, stated the rule as follows:

“Certainly, the proof was sufficient to make out 
a prima facie case of appellant’s involvement in each 
of the transactions and liability to respond civilly in 
liquidated damages under the statute; . . . his failure 
either to take the stand, or show that he was unable 
to testify, or even to offer any excuse whatever for 
his failure to testify in explanation of suspicious 
facts and circumstances peculiarly within his know­
ledge, fairly warrants the inference that his testimony, 
if produced, would have been adverse.”

See to the same effect these additional cases from this Cir­
cuit : United States v. Leveson, 1959, 262 F. 2d 659; United 
States v. Marlowe, 1956, 235 F. 2d 366; Williams v. United 
States, 1952, 199 F. 2d 921; Paudler v, Paudler, 1950, 185

s D aniel v. U n ited  S tates, 1956, 234 F . 2d 102, 106, ce rtio ra ri denied, 
352 U. S. 971.



33

F. 2d 901, certiorari denied, 341 U. S. 920; and United States 
v. Priola, 1359, 272 F. 2d 589.

A fortiori, in an equity case where parties are seeking 
the extreme remedy of injunction against state officers, it 
does not lie in the mouths of appellants to decry the weak­
ness of the opposition proof when they, having all the facts 
in their possession, sit silently by when challenged by as­
sertions which it behooved them to refute if they would 
support their case. They were accused and convicted by 
competent proof, including a picture and writings authored 
by them, of public boorishness, of defying the authority 
of the officials of their school and state, of blatant insub­
ordination, of endeavoring to disrupt the school they had 
agreed to support with loyalty, as well as to break up other 
schools, and had openly incited to riot; and when their time 
came to speak, they stood mute, offering only one of their 
group along with the college president and two newspaper 
reporters as witnesses.

Before they were notified of their expulsion they had 
issued public statements admitting everything which was 
the basis of their expulsion, and had disclosed everything 
they could have brought forward in any hearing which 
might have been given them before they were notified that 
their conduct required their separation from connection with 
the college. It is difficult to perceive the validity of the 
argument that they were not given a hearing when, called 
upon to refute proof offered against them and themselves 
carrying the burden of proof throughout, they failed to say 
a word in their defense.

We are trying here the actions of State officials, which 
actions we are bound to invest with every presumption of 
fairness and correctness. Certainly the Board had before it 
a responsible and credible showing which justified their find-



34

ing that these appellants were guilty of wilful disobedience 
of the rules and directives of the head of the college they 
were attending and of conduct prejudicial to the school and 
unbecoming a student or future teacher in the schools of 
Alabama, as well as of insubordination and insurrection and 
inciting other peoples to like conduct. It is undisputed 
that the Board made a leisurely and careful investigation and 
passed its judgment in entire good faith. The State of Ala­
bama had no statute and the school had no rule or regulation 
requiring any other hearing than that which was had, and 
the Board was entirely justified in declining “to continue to 
accept responsibility for the supervision and service to any 
student with whom the relationship becomes unpleasant and 
difficult.” It is worth noting, too, that President Trenholm, 
testifying as a witness for appellants, stated that the rules 
of the school had been in effect more than thirty years; and 
that there was no requirement in them for notice or hearing 
and that prior practices did not include such as a precedent.

It is undisputed that failure to act as the Board did act 
would have resulted in a complete disruption of discipline 
and probable breaking up of a school whose history ran 
back many years, and whose president had held the position 
for thirty-five years. If he and the School Boai*d had clone 
less, they would, in my opinion, have been recreant to their 
duties. The moderate action they took did bring order out 
of chaos and enable the school to continue operation.

I do not feel that we are called upon here to volunteer our 
ideas of procedure in separating students from state col­
leges and universities. I think each college should make its 
own rules and should apply them to the facts of the case 
before it, and that the function of a court would be to test 
their validity if challenged in a proper court proceeding.

A. sane approach to a problem whose facts are closely



35

related to the one before ns was made by the United States 
Court of Appeals for the Second Circuit in Steier v. N. Y. 
State Education, Commission et at., 1959, 271 F. 2d 13. Its 
attitude is thus epitomized on page 18:

“Education is a field of life reserved to the indi­
vidual states. The only restriction the Federal Gov­
ernment imposes is that in their educational pro­
gram no state may discriminate against an individ­
ual because of race, color or creed.

“As so well stated by Judge Wyzanski in Cranney 
v. Trustees of Boston University, D. C., 139 F. Supp. 
130, to expand the Civil Rights Statute so as to em­
brace every constitutional claim such as here made 
would in fact bring within the initial jurisdiction of 
the United States District Courts that vast array of 
controversies which have heretofore been raised in 
state tribunals by challenges founded upon the 14th 
Amendment to the United States. Constitution. It 
would be arrogating to the United States District- 
Courts that which is purely a State Court function. 
Conceivably every State College student, upon dismis­
sal from such college, could rush to a Federal Judge 
seeking review of the dismissal.

“It is contrary to the Federal nature of our sys­
tem — contrary to the concept of the relative places 
of States and Federal Courts.

“Whether or not we would have acted as did the 
Administrator of Brooklyn College in dismissing the 
plaintiff matters not. For a Federal District Court 
to take jurisdiction of a case such as this would lead 
to confusion and chaos in the entire field of juris­
prudence in the states and in the United States.”



36

Certainly I think that the filing of charges, the disclosure 
of names of proposed witnesses, and such procedures as the 
majority discusses are wholly unrealistic and impractical 
and would result in a major blow to our institutions of 
learning. Every attempt at discipline would probably lead 
to a cause celebre, in connection with which federal func­
tionaries would be rushed in to investigate whether a federal 
law had been violated. I think we would do well to bear in 
mind the words of Mr. Justice Jackson :6

“ . . . no local agency which is subject to federal 
investigation, inspection, and discipline is a free 
agency. I cannot say that our country could have 
no central police without becoming totalitarian, but 
I can say with great conviction that it cannot become 
totalitarian without a centralized national police.”

I think, moreover, that, in these troublous times, those 
in positions of responsibility in the federal government 
should bear in mind- that the maintenance of the safety, 
health and morals of the people is committed under our 
system of government to the states. More than a hundred 
years ago Chief Justice Marshall7 stated the principle in 
these words:

“The power to direct the removal of gunpowder 
is a branch of the police power, which unquestion­
ably remains, and ought to remain, with the states.”

I dissent.

s “T he S uprem e C ourt in  th e  A m erican  System  of G overnm en t,” p. 
70.

7 B row n v. M ary land , 1827, 12 W h e a t, 419.

A dm . Office, U. S. C ourts —  Scofields’ Q uality  P trs . Inc., N. O., La.



37

JUDGEMENT OF THE COURT OF APPEALS 

ENTERED ON AUGUST 4, 1961

“This cause came on to be heard on the transcript of the 
record from the United States District Court for the Middle 
District of Alabama, and was argued by counsel;

“On CONSIDERATION WHEREOF, It is now here 
ordered and adjudged by this Court that the judgment of the 
said District Court in this cause be, and the same is hereby, 
reversed ; and that this cause be, and it is hereby remanded 
to the said District Court for further proceedings consistent 
with the opinion of this Court;

“It is further ordered and adjudged that the appellees, 
Alabama State Board of Education, and others, be con­
demned, in solido, to pay the costs of this cause in this Court 
for which execution may be issued out of the said District 
Court,

“Cameron, Circuit Judge, Dissenting.”