Avent v. North Carolina Brief for Petitioners

    I n  t h e

SkiptcitiT (Emtrt ni W\t Untfrii States
O ctober T e e m , 1974  

No. 74-

G eorge E gbert B o t k in s , e t  a l.,

v.
Petitioners,

F a irfield  B oard oe E d u cation , e t  a l.

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

FOR THE FIFTH CIRCUIT

J ack  G reen berg  
J am es M. N abrit , III 
C harles  S t e p h e n  R alston  
C h a rles  E. W il l ia m s , III 

10 Columbus Circle 
New York, New York 10019

D e m e t r iu s  C. N ew to n

2121 8th Avenue, North 
Birmingham, Alabama 35203

Attorneys for Petitioners



TABLE OF CONTENTS

PAGE

Opinion Below................................................................  1

Jurisdiction ...................................................................  1

Question Presented ................................ .........................  1

Constitutional Provision Involved .....      2

Statement ............................................................ —.......  2

Reasons Why The Writ Should Be Granted .............  9
Certiorari Should Be Granted Because the Issue 
of the Due Process Rights of Public School Pupils 
in Disciplinary Hearings Is of National Impor­
tance and Because the Decision of the Fifth Circuit 
Conflicts With Those of This Court and Other
Federal Courts ............................   9
A. The Question of the Requirements of Due Pro­

cess in School Disciplinary Proceedings Is of 
Great National Importance ............................  9

B. Certiorari Should Be Granted to Resolve the
Conflict Between Decisions of This Court and 
the Decision Below .....................................    12

C. Certiorari Should Be Granted to Resolve the
Conflict Between the Decision Below and Deci­
sions of Another Circuit and of District Courts
in Other Circuits .............................................  15

C o n c l u s io n ................................................. ...................  16

A p p e n d ix



11

T able oe A ttthobities

p a g e

Cases:

Bell v. Burson, 402 U.S. 535 (1971) ..... ...................... 14
Betts v. Bd. of Ed. of City of Chicago, 486 F.2d 629

(7th Cir. 1972) ................. ....................................... . io
Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971) .......... 10
Black Coalition v. Portland School District No. 1, 484

F.2d 1040 (9th Cir. 1973) ........ ............. ....................  15
Board of School Commissioners v. Jacobs, No. 73-1347

(cert, granted, June 3, 1974) ...... .................. ......... 12
Boykins v. Fairfield Bd. of Ed., 399 F.2d 11 (5th Cir.

1968) ..........................................................................  2
Boykins v. Fairfield Bd. of Ed., 421 F.2d 1330 (5th Cir.

1970)  ............ .......... ........................................... 3
Boykins v. Fairfield Bd. of Ed., 429 F.2d 1234 (5th Cir.

1970) ........... .... ................. ....................................... . 3
Boykins v. Fairfield Bd. of Ed., 446 F.2d 973 (5th Cir.

1971)  ......... ................... .......................................  3
Boykins v. Fairfield Bd. of Ed., 457 F.2d 1091 (5th Cir.

1972) ............................... .......... ......... .................... . 3
Brown v. Board of Education, 347 U.S. 483 (1954) __  10

DeJesus v. Penberthy, 344 F. Supp. 70 (D. Conn. 1972) 15
Dixon v. Alabama State Board of Education, 294 F.2d 

150 (5th Cir. 1961) ...... ................................... .......4, 5, 9

Gagnon v. Scarpelli, 411 U.S. 778 (1973) ..................... 14
Goldberg v. Kelly, 397 U.S. 254 (1970) .... ................13,14
Goss v. Lopez, No. 73-898 (proh. juris, noted, Feb. 19, 

1974) ............... ............................. ..... .............. ..........  12

Hawkins v. Coleman-----F. Supp. ------  (Civ. Action
No. 3-5774-B, June 5, 1974) 11



I l l

PAGE

In re Gault, 387 U.S. 1 (1967) ........... ...........................  13

Karp v. Beckeu, 477 F.2d 171 (9th Cir. 1973) ..............  10

Madera v. Bd of Ed. of City of New York, 386 F.2d 
778 (2nd Cir. 1967) ........................................... ........ 10

Mills v. Board of Ed. of District of Columbia, 348 F. 
Supp. 866 (D.D.C. 1972) ........................................ . 15

Morrissey v. Brewer, 408 U.S. 471 (1972) .................. 13

People v. Overton, 201 N.Y.2d 360, 283 N.Y.S.2d 22, 229 
N.E.2d 596 (1967), vacated and remanded, 393 U.S.
85 (1968), reinstated, 24 N.Y.2d 523, 301 N.Y.S.2d 
479, 249 N.E.2d 366 (1966) ________ ____ ______  10

Tinker v. Des Moines Independent School Disk, 393 
U.S. 503 (1969) .......................................... - ............  10

United States v. Jefferson County Bd. of Ed., 372 F.2d 
836 (5th Cir. 1966), aff’d en banc, 380 F.2d 385 ......  2

Wave v. Estes, 328 F. Supp. 657 (N.D. Tex. 1971), aff’d,
458 F.2d 1360 (5th Cir. 1972) ................. .................  10

Wolff v. McDonnell, -----  U.S. ----- , 42 U.S.L. Week
5191 (1974) .................- ........................ ................... 14

Wood v. Strickland, No. 73-1285 (cert, granted, April 
15, 1974) ................................. ..................... ..............  12

Statute:
Code of Alabama, Title 52, §§ 579 and 598 ............... . 14

Other Authorities:
Bell, Race and School Suspensions in Dallas, 62 Inte­

grated Education 66 (March-April 1973) _______  10



XV

PAGE

Clarke, Race and Suspensions in New Orleans, 63 Inte­
grated Education 30 (May-June, 1973) ........... ........ 11

Developments in the Law: Academic Freedom, 81 
H arvard L aw  R ev iew  1045, (1968) ............................  10

Goldstein, Reflections on Developing Trends in the Law 
of Student Rights, 118 U. P a. L. R ev . 612 (1970) ....  10

Goldstein, The Scope and Sources of School Board 
Authority to Regulate Student Conduct and Status:
A Nonconstitutional Analysis, 117 U. P a. L. Rev. 373 
(1969) ................. ........................................ ........... ...... 11

Hudgins, Discipline of Secondary School Students and 
Procedural Due Process: A Standard, 7 Wake 
Forest L. Rev. 32 (1970) ............... .......................... 11

The Student Pushout, Victim of Continued Resistance 
To Desegregation (Southern Regional Council and 
Robert F. Kennedy Memorial, 1973) ........................  11

Wright, The Constitution on Campus, 22 V and . L. R ev .
1027 (1969) .............................................. ............. ...... 10

Wright, The New Word Is “Pushout”, 4 Race Relations 
Reporter 8 (May 1973) .............................................. 10



I n- t h e

0 H!Jr«!i£ GImtrt of tip United States
O ctober T e r m , 1974 

No. 74-

G-eorge E gbert B o y k in s , et a l.,

v.
Petitioners,

F a ir field  B oard of E dit cation , e t  al.

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

FOR THE FIFTH CIRCUIT

Opinions Below

The opinion of the Court of Appeals is reported at 
492 F.2d 697 and is reprinted in the Appendix to this 
Petition, pp. la-17a. The opinions and orders of the dis­
trict court are unreported and are reprinted in the Ap­
pendix at pp. 18a-26a.

Jurisdiction

The judgment of the Court of Appeals was entered on 
April 12, 1974. The jurisdiction of this Court is invoked 
under 28 U.S.C. §1254(1).

Question Presented

Following a disturbance at a recently desegregated pub­
lic high school twenty-one students were suspended and



2

faced expulsion. At a hearing before the school board, 
hearsay, in the form of written statements, was introduced 
and relied upon by the board. Eight of the twenty-one were
permanently expelled, although a number were shown to 
have done no more than others who were readmitted. The 
school board gave no reasons for singling out the eight, but 
apparently expelled them because they were believed to be 
leaders of the disturbance.

Were the eight permanently expelled students denied due 
process of law—including the right to cross-examine and 
confront witnesses—as guaranteed by the Fourteenth 
Amendment?

Constitutional Provision Involved

This matter involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States, which pro­
vides :

All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of 
the United States and of the State wherein they reside. 
No State shall make or enforce any law which shall 
abridge the privileges and immunities of citizens of 
the United States; nor shall any State deprive any 
person of life, liberty, or property, without due process 
of law; nor deny to any person within its jurisdic­
tion the equal protection of the laws.

Statement
This case commenced as a school desegregation suit in 

1965.1 Petitioners are black school children who are mem-

1 Reported decisions relating to desegregation are as follows: 
United States v. Jefferson County Bd. of Ed., 372 F.2d 836 (5th 
Cir. 1966), aff’d en bane, 380 F.2d 385; Boykins v. Fairfield Bd.



3

bers of the class on whose behalf it was filed. They seek 
review of the decision of the Fifth Circuit which upheld 
their permanent expulsion from the schools of the City of 
Fairfield, Alabama. Following* a remand in 1972, by the 
Court of Appeals, a final plan for the desegregation of 
the schools was put into effect by the district court.

However, in the fall term of 1972, difficulties arose with 
the implementation of the plan, which in turn resulted in 
dissatisfaction on the part of black students at Fairfield 
High School.2 In late October and early November, 1972, 
black students conducted a boycott of the school. Motions 
were filed in the district court seeking to correct problems 
in implementing the desegregation plan and to reinstate 
students suspended because of the boycott. On November 
9, 1972, the district court ordered that the suspended stu­
dents be reinstated and set a hearing to review the prob­
lems that had given rise to the boycott. As part of its 
order, the district court required the students to end the 
boycott and return to class.

Nevertheless, difficulties persisted. On November 10, 
1972, an incident occurred involving a black student and 
a black faculty member.3 When other black students heard

of Ed., 399 F.2d 11 (5th Cir. 1958) ; Boykins v. Fairfield Bd. of 
Ed., 421 F.2d 1330 (5th Cir. 1970) ; Boykins v. Fairfield Bd. of
Ed., 429 F.2d 1234 (5th Cir. 1970); Boykins v. Fairfield Bd. of
Ed., 446 F.2d 973 (5th. Cir. 1971) ; Boykins v. Fairfield Bd. of
Ed., 457 F.2d 1091 (5th Cir. 1972). As Judge Godbold noted in
dissent, the desegregation of the school district “has been a fruitful 
source of litigation” because of the resistance to desegregation. 492 
F.2d at 703, Appendix, p. 9a.

2 The problems included the alleged inability of black students 
to participate as cheerleaders or as members of certain clubs, the 
administration of discipline, particularly as it regarded tardiness, 
and the lack of a Black Studies program.

8 The student was Clarence Young, one of those subsequently 
expelled.



4

of the incident, a number of them left their classes. As 
a result, the principal decided to close the school and send 
all students home. Subsequently, notices were sent to 
twenty-one students informing them that they had been 
suspended for their actions of November 10 and would 
receive notices later as to Board of Education conducted 
hearings to decide whether they would be reinstated.

Before the hearings were held, a motion was filed in 
the district court challenging the suspension of the twenty- 
one students. Decision on the motion was deferred pend­
ing the outcome of the administrative hearings, which were 
held on November 25, 1972. (The transcript of the hear­
ing was introduced in district court; record references 
herein are to the Appendix filed in the Court of Appeals, 
“A.” )

As the hearing commenced, the board’s attorney ex­
plained the procedure. He began by reading an excerpt 
from Dixon v. Alabama State Board of Education, 294 
F.2d 150 (5th Cir. 1961), including language to the effect 
that there was no right to cross-examination and that 
written testimony could be presented (A. 53). The attor­
ney then continued with the statement quoted by the Court 
of Appeals at 492 F.2d 700. (See Appendix, infra at 4a- 
5a.) tie said that the “School Administrator” presenting 
the evidence could be questioned by the school board and 
cross-examined by the attorney representing the children.4

However, as it developed, this purported right to cross- 
examine was illusory. Each student charged was called in 
with his or her parent and informed of the charges. The 
principal presented the evidence against the student, but

4 Shortly thereafter, during a preliminary discussion regarding 
another procedural issue, the school board attorney stated: “You 
can cross-examine . . . any person who has presented evidence” 
(A. 59).



5

with two exceptions5 it was hearsay and consisted of 
written statements by teachers who were not available for 
cross-examination. In most instances the statement was 
limited to an assertion that the pupil either had not re­
ported for class or had left class without permission.

While no overall objection was made to the introduction 
of this hearsay, on two occasions objections were made to 
specific testimony as hearsay (A. 73; 194). In any event, 
both the district court and the Court of Appeals ruled 
on and upheld the use of hearsay (Appendix, 5a-7a; 21a). 
And, as the appeals court noted in rejecting petitioners’ 
claim, it had been the rule since 1961 in the circuit that 
hearsay in the form of written statements could be used 
under the decision in Dixon relied upon by the school board 
attorney.

After the principal had presented evidence each stu­
dent was allowed to present his or her story as to what 
happened, although two of the expelled students were not 
present when their names were called at the school board 
hearing. It was clear that they had been waiting outside, 
but left sometime during the five-hour proceeding because 
they were not allowed to use the bathroom. Since they 
had no transportation, they had to walk home and had not 
returned by the end of the hearing (A. 338-339). Thus, 
the only testimony against them was hearsay in the form 
of a written statement from their first-period teacher al­
leging merely that they had left her class without permis­
sion.

Of the 21 students accused, four were readmitted im­
mediately as of November 27, 1972; eight others were re­
admitted one week later as of December 4; one student 
was suspended for the remainder of the semester; and eight

5 Clarence Young and Beverly Claiborne.



6

others, petitioners here, were expelled permanently. Since 
the school hoard did not state the reasons for its decisions, 
it gave no explanation for the disparate results. As Judge 
Godbold noted in dissent (492 F.2d at 705, Appendix, pp. 
13a-14a), the only apparent basis for the expulsions was 
that the school board concluded that the eight were leaders 
in the disturbance. However, as he also correctly pointed 
out, there was nothing introduced at the board hearing 
that showed that most of those expelled did anything more 
than numerous other students who were readmitted {Ibid.)6

Indeed, given the evidence concerning the eight students 
selected for expulsion and the lack of explanation for their 
being so selected, Judge Godbold’s conclusion that the pen­
alties were arbitrarily severe because of their being based 
upon matters outside the record (Appendix, 15a) is un­
avoidable. Thus, Darlene Phelps and Cathy Scott testified 
that they had been given permission to leave their class 
(this testimony was corroborated by another student), con­
trary to the written statement of their teacher. They fur­
ther denied doing anything disruptive. To the contrary, 
they had attempted to find a representative of the Com­
munity Relations Service of the United States Department 
of Justice, who had been sent to the school, to get his help 
in calming the situation.

Jacques Guest and Linda Meadows testified that they 
had left class because they had heard that another black 
student was in trouble. Guest admitted that he went to one 
class and told students that they should leave, but said it 
was the teacher who actually dismissed the class (A. 
203-04). Miss Meadows was also accused in a written

6 For example, the charge and evidence against Anthony. Wil­
liams was exactly the same as against Cathy Scott and Darlene 
Phelps, i.e., having Mrs. Sexton’s class without permission (A. 329- 
330; see n. 18, infra)'. Nevertheless, Williams was readmitted 
to school and Phelps and Scott were permanently expelled.



7

statement from one of the teachers that when he told her 
to leave the classroom she cursed him. Miss Meadows, how­
ever, testified that she did not actually go into his class­
room (although she was standing outside in the hall) and 
denied using profanity. The teacher himself did not testify 
(A. 131-32).

Beverly Claiborne was presented with a written charge 
that she failed to report to her first-period class. The prin­
cipal also testified, based on his own knowledge, that when 
Miss Claiborne was told that she would be expelled she 
responded with profanity. Miss Claiborne, however, testi­
fied that she had in fact reported to her first-period class 
and had been excused by the teacher (A. 121.)7 With regard 
to the profanity, she said that she made a statement to 
herself and did not expect it to be heard (A. 127).

Clarence Young was the student who had the altercation 
with a teacher that precipitated the disturbance. He had 
gotten into an argument over whether the teacher should 
apologize to a girl because he had accidentally hit her when 
he opened a door. Words were exchanged that included 
some insults hv Young, and he was taken into the prin­
cipal’s office. He was there when the students began to 
leave their classes.

John Hall and Beverly Law were the two students who 
had left the hearing before their names were called. The 
only evidence was written statements that they had left 
class without permission; there was no testimony that they 
had gone to other classes or had done anything more than 
many of those readmitted.

The district court, in an order dated December 14, 1972, 
held that due process had been complied with and that the

7 Another student, Beverly Williams was also accused of leaving 
the same class without permission. She also testified that she had 
been excused (A. 106). She was readmitted.



8

action of the school hoard was justified (Appendix, pp. 
18a-23a).8 A timely Notice of Appeal was filed on Decem­
ber 2, 1972.

In the meantime, the expelled students made efforts to 
continue their education. A number of them enrolled in 
private parochial schools at which they paid for tuition 
and textbooks. Four of the students attempted in early 
January, 1973, to enroll in public schools in neighboring 
districts in order to complete their education. They were 
informed, however, that they could not be accepted unless 
the schools received from the superintendent of the Fair- 
field schools approval of their enrollment. When they re­
quested such approval, the superintendent refused on the 
ground that they had been expelled from the Fairfield 
school system.

Another motion for emergency relief was filed in the 
district court on February 21, bringing these facts to the 
court’s attention and requesting an order permitting the 
students to be allowed to continue their public education 
in some way. A hearing was held on the motion on March 
2, 1973, and the motion was denied the same day by the 
district court (Appendix, pp. 24a-26a). A notice of appeal 
was filed with regard to that order, and that matter was 
consolidated with the appeal already pending in the Fifth 
Circuit.

On April 12, 1974, the Court of Appeals affirmed the 
decision of the district court, over a dissent from Judge 
Godbold. AH three judges, however, concurred in reject-

8 Thy Court also, in an order dated November 27, 1972, ruled on 
the plaintiffs’ motion to correct the administration of the school 
desegregation plan. I t granted relief with regard to monitoring 
transfers of white students out of certain schools in the district, 
the correcting of imbalances in the racial makeup of faculty at one 
school, and the ending of three all-black classes at another, but 
denied all other relief. This order is not at issue in this proceeding.



9

ing petitioners’ argument that they were entitled to con­
frontation and cross-examination of the witnesses against 
them; rather, the school board conld rely on written state­
ments by teachers presented to it by the principal of the 
school.

As of the date of filing this petition, one of the students 
(Jacques Guest) remains out of school and is without a 
high school diploma. The other seven were able to finish 
high school, some at parochial schools, and two by going 
to live with relatives in Mississippi. At least one student 
was admitted to college. All eight retain on their records, 
however, that they were permanently expelled from the 
schools of Fairfield. Further, the school board is free to 
continue to impose discipline upon other members of the 
class pursuant to the procedures upheld by the Court of 
Appeals.

REASONS WHY THE WRIT SHOULD BE GRANTED

Certiorari Should Be Granted Because the Issue of 
the Due Process Mights of Public School Pupils in 
Disciplinary Hearings Is of National Importance and 
Because the Decision of the Fifth Circuit Conflicts 
With Those of This Court and Other Federal Courts.

A. The Question of the Requirements o f Due Process in 
School Disciplinary Proceedings Is o f Great National 
Importance.

In recent years the lower federal courts have dealt with 
increasing frequency with questions relating to school dis­
cipline procedures. Beginning with Dixon v. Alabama State 
Board of Education, 294 F.2d 150 (5th Cir. 1961), the courts 
of appeals have attempted to apply, in school eases, deci-



10

sions of this Court dealing with procedural rights in other 
areas.9

The rapid increase in the amount of litigation is a reflec­
tion of the growing awareness and concern for the legal 
rights of students generally. Stimulated by this Court’s 
decisions in Brown v. Board of Education, 347 U.S. 483 
(1954), and Tinker v. Des Moines Independent School Dist., 
393 U.S. 503 (1969), the area of concern has encompassed 
issues such as the extent of the rights to free speech, press, 
and association,10 the legality of searches and seizures,11 
hair and dress regulations,12 and corporal punishment.13 
See, Developments in the Law: Academic Freedom, 81 
H arvard L aw  R ev iew  1045, 1128-1159 (1968); Goldstein, 
Reflections on Developing Trends in the Law of Student 
Rights, 118 U. P a. L . R ev . 612 (1970); Wright, The New 
Word Is “Pushout”, 4 Race Relations Reporter 8 (May 
1973); Wright The Constitution on Campus, 22 V axd . L . 
R ev . 1027 (1969).

With regard to student discipline in particular, concern 
with what has been termed the “pushout” problem has 
focused on the disproportionate number of black students 
being subjected to severe punishment, particularly in school 
systems in the process of desegregating. See, e.g., Bell, 
Race and School Suspensions in Dallas, 62 Integrated Edu-

9 See, e.g., Madera v. Board of Ed. of City of New York, 386 
F.2d 778 (2nd Cir. 1967) ; Williams v. Dade County School Board 
441 F.2d 299 (5th Cir. 1971) ■ Betts v. Bd. of Ed. of City of Chi­
cago, 466 F.2d 629 (7th Cir. 1972).

10 E.g., Karp v. Becken, 477 F.2d 171 (9th Cir. 1973).
11 E.g., People v. Overton, 20 N.Y.2d 360, 283 N.S.Y.2d 22, 229 

N.E.2d 596 (1967), vacated and remanded, 393 U.S 85 (1968) 
reinstated, 24 N.Y.2d 523, 301 N.Y.S.2d 479, 249 N E 2d 366 
(1969).

12 E.g., Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971).
13 E.g., Ware v. Estes, 328 F. Supp. 657 (N.D. Tex. 1971), aff’d, 

458 F.2d 1360 (5th Cir. 1972).



11

cation 66 (Marcb-April 1973) ;14 Clarke, Race and Suspen­
sions in New Orleans, 63 Integrated Education 30 (May- 
June, 1973); The Student Pushout, Victim of Continued 
Resistance to Desegregation (Southern Regional Council 
and Robert F. Kennedy Memorial, 1973).16 Recently, the 
Department of Health, Education, and Welfare, has begun 
a comprehensive investigation into this question as a result 
of the accumulation of evidence indicating a relationship 
between discipline and desegregation.

To reduce the opportunity for racial discrimination, the 
procedures used for pupil discipline must be adequate to 
ensure that proper and non-arbitrary decisions are made. 
Thus, while much of the discussion of student discipline 
to date has dealt with procedural questions as such,16 the 
relationship between those issues and the substantive bases 
for imposing discipline should not be overlooked.

14 In an opinion as yet unreported, the United States District 
Court for the Northern District of Texas has found “white institu­
tional racism” in the operation of the school discipline system in 
Dallas because of the disproportionate number of black students
subjected to harsh discipline. Hawkins v. Coleman,----- F. Supp.
-----  (Civ. Action No. 3-5774-B, June 5, 1974). Thus in 1973-74,
while blacks were 40.9% of the students, they accounted for 59.4% 
of the suspensions. Moreover, blacks were suspended for signifi­
cantly longer periods than were whites.

16 According to The Student Pushout, 71% of the pupils expelled 
or suspended in Dade County, Florida, in 1972 were black; in the 
Charlotte-Mecklenburg' County system, suspensions rose from 1.544 
in 1968-69 to 6,652 in 1970-71, and declined to 6,201 in 1971-72. 
The vast majority of those suspended were blacks. Similarly, while 
25 blacks and 11 whites were expelled in 1968-69, 94 blacks and 14 
whites were expelled in 1971-72 (The Student Pushout, pp. 4-5).

A study prepared by the Office1 of Civil Eights of the Department 
of Health, Education, and Welfare, indicates that the expulsion 
rate nationwide for black students-during the 1970-71 school year 
•was three dimes that of non-minority students (Id. at pp, 5-6). -

16 See, e.g., Goldstein, The Scope and Sources of School Board 
Authority ; to Regulate Student Conduct apd Status: A  'Nonconsti­
tutional Analysis, 117 IJ. Pa. L. Rev. 373 (1969) ; Hudgins, Disci­
pline bf Secondary School Students and Procedural Due Process: 
A  Standard, 7 Wake Forest L. Rev.; 32 (1970) A



12

To date, this Court has not addressed itself to the ques­
tion of the procedural rights of students. It has recognized 
the importance of the issue, however, by its grant of review 
in two cases to be argued during the October 1974 Term.17 
Petitioners urge that this case presents, as will be dis­
cussed below, additional issues of great importance that 
are not raised in the other cases before the Court. There­
fore, this case is an appropriate one for a grant of cer­
tiorari.

B. Certiorari Should Be Granted to Resolve the Conflict 
Between Decisions o f This Court and the Decision 
Below.

It is clear that the school board, in order to decide both 
whether to impose any discipline and what discipline was 
appropriate, had to resolve disputed questions of fact. For 
example, in the case of Cathy Scott and Darlene Phelps 
it had to determine whether the teacher had or had not 
given permission to leave, or if the teacher had said 
something* that might have been interpreted as giving 
permission. Depending on how the facts were resolved, 
the board might have decided to impose no discipline or 
a lesser punishment than permanent expulsion. To have 
decided on the harshest punishment possible, the board 
must either have concluded that the teacher had not given 
permission or have decided, on some ground not pre­
sented at the hearing, that the two students were leaders 
of the disruption.

Of course, the only basis for concluding that no per­
mission was given was hearsay in the form of the signed

17 Goss v. Lopez, No. 73-898 (prob. juris, noted, Feb. 19, 1974) ■ 
Wood v. Strickland, No. 73-1285 (cert, granted, April 15,’ 1974) • 
See also, Board of School Commissioners v. Jacobs, No.’73-1347 
{cert, granted, June 3, 1974).



13

statement by the teacher.18 The teacher was not present 
to be questioned either by counsel for the students or by 
the school board itself.

The court below rejected petitioners’ argument that this 
Court’s decisions in Morrissey v. Brewer, 408 U.S. 471 
(1972) and Goldberg v. Kelly, 397 U.S. 254 (1970), re­
quired “confrontation and cross-examination of witnesses, 
especially where severe punishments are meted out on 
disputed facts.” 492 F.2d at 701. Although the court found 
the argument “seductive,” it concluded that “it will not 
do” to apply those protections to school disciplinary pro­
ceedings, because such proceedings were “disparate” from 
parole and welfare revocation hearings and a body of lay­
men could not be required to apply strict rules of evi­
dence. 492 F.2d at 701-702; Appendix, pp. 5a-7a.

In recent years this Court has handed down a series of 
decisions that establish procedural rights when a govern­
ment agency acts to deprive a person of a benefit. In ad­
dition to Morrissey and Goldberg, they include: In re

18 The entire testimony was as follows:
Mr. Sweeney: What evidence do you have?
Mr. Turner: A signed statement from her teacher saying 

she left class without her permission.
Mr. Sweeney: Who is the teacher?
Mr. Turner: Mrs. Sexton, first period history.
Mr. Sweeney: What does the statement say?
Mr. Turner: I t  says that Darlene Phelps left class without 

permission on Friday, November the 10th, 1972 (A. 288.)
* * *

Mr. Sweeney: Give us the details that support this.
Mr. Turner: Cathy was in the first period class of Mrs. Sex­

ton and left that class without permission of the teacher.
Mr. Newton: Do you have a written statement from Mrs. 

Sexton to that effect ?
Mr. Turner: Yes. (A. 303.) ., ,



14

Gault, 387 U.S. 1 (1967) (juvenile court) ;19 Bell v. Burson, 
402 U.S. 535 (1971) (automobile license revocation); 
Gagnon v. Scarpelli, 411 U.S. 778 (1973) (probation re­
vocation) ; Wolff v. McDonnell, -----  U.S. ----- , 42 U.S.L.
Week 5191 (1974) (prison discipline). This Court has rec­
ognized, in the words of Goldberg, that, “in almost every 
setting where important decisions turn on questions of 
fact, due process requires an opportunity to confront and 
cross-examine adverse witnesses.” 397 U.S. at 269.

Only in Wolff v. McDonnell, did this Court find an ex­
ception to the general rule. Wolff makes it clear, however, 
that the decision is based on the inherent dangers that 
exist in prison society and on the fact that the deprivation 
imposed as a result of discipline was not that serious. Thus, 
the Court would not apply “procedural rules designed for 
free citizens in an open society.” 42 U.S.L. Week at 5197.

The requirement of confrontation and cross-examination, 
of course, is but one protection against decisions that de­
prive persons of benefits arbitrarily. If a school board 
does not, because it cannot, fairly resolve disputed factual 
issues, and if it can impose severe discipline on the basis 
of evidence that cannot be challenged because the accuser 
is absent, then it can and will act arbitrarily.

On the other hand, the basis for the school board’s 
actions in this case might have been either a conclusion that 
those expelled were leaders, or some unarticulated ad hoc 
determination that they had done something warranting 
more severe punishment. As Judge Oodbold pointed out, 
in most instances the evidence introduced showed that they

19 I t  is ironic that the petitioners would have been better off, in 
some respects, in juvenile court both because cf the procedures that 
would have been afforded and because even if they had been adjudi­
cated delinquent they would have been entitled, under Alabama 
law, to an education. See, Code of Alabama, Title 52, §§ 579 and 
598.



15

liad done nothing more than others who were readmitted. 
Needless to say, such arbitrariness would he a violation 
of due process and could only be protected against by the 
imposition of adequate procedural safeguards. Further, by 
requiring that proper procedures be followed, the federal 
courts will not be required to act as boards of review of 
school discipline proceedings. It is one thing, a matter of 
perhaps considerable burden to the courts, to review myriad 
disciplinary hearings. It is another to set standards of fair­
ness and due process by which the hearings are to be con­
ducted.

This case, therefore, presents squarely an issue not yet 
resolved by this Court, whether pupils in public schools are 
to be afforded the same protections against arbitrary 
actions as are other “free citizens” or whether they are to 
be dealt with as if the school were a prison. In light of 
the general importance of that question as demonstrated 
above, the petition should be granted to resolve the appar­
ent conflict of the decision below with the decisions of this 
Court.

C. Certiorari Should Be Granted to Resolve the Conflict 
Between the Decision Below and Decisions of Another 
Circuit and of District Courts in Other Circuits.

Finally, the Court of Appeals for the Ninth Circuit has 
held that it was a denial of due process to expel students 
without a hearing at which they could “cross-examine ad­
verse witnesses.” Black Coalition v. Portland School Dis­
trict No. 1, 484 F.2d 1040, 1045 (9th Cir. 1973). District 
Courts in two other circuits have made similar rulings. 
DeJesus v. Penberthy, 344 F. Supp. 70 (D. Conn. 1972); 
Mills v. Board of Ed. of District of Columbia, 348 F. Supp. 
866 (D.D.C. 1972). Certiorari should therefore be granted 
to resolve these conflicts.



16

CONCLUSION

For the foregoing reasons, the petition for writ of certi­
orari should be granted.

Respectfully submitted,

J ack  G reen berg  
' J am es M. N a brit , III 

C h a r les  S t e p h e n  R alston  
C h a rles  E. W il l ia m s , III 

10 Columbus Circle 
New York, New York 10019

D e m e t r iu s  C. N ew to n

2121 8th Avenue, North 
Birmingham, Alabama 35203

Attorneys for Petitioners



APPENDIX



Decision of Fifth Circuit, April 12, 1974

BOYKINS v. FAIRFIELD BOARD OF EDUCATION

GEE, Circuit Judge:
As the Fairfield, Alabama, school case comes before us for 

the seventh time,1 the great issues of segregation and integra­
tion which were, for our circuit, largely fought out on this 
very field 2 have departed like the Captains and the Kings, to 
be replaced by the petulance which this record reveals and the 
spectre of resegregation by white flight from the school 
system. As the trial court observed:

The Court has had many hearings in the Fairfield School 
Case. When the hearings began there was a white majority 
in the school system. There is now a black majority and 
this majority is growing with every term and with every 
court order. The number of students in the System is 
dropping every year with the consequent loss of revenue. 
The cooperation between the races apparently has disap­
peared. Picayunish claims are being made on the one hand 
and vigorously contested on the other. If this System is to 
survive this continued litigation must come to an end. 
Many of the black students appear to have overlooked the 
point that the object of attending Fairfield High is to 
obtain an education and not merely to maintain a point of 
which an issue may be made.
Appellants are Negro school children who are members of 

the class who brought this suit originally. They complain of 
the process by which nine Negro students were punished for 
misconduct, of the severity of the punishment which some 
received, and of the refusal of the district court to order the 
school authorities to grant various demands which the Negro
1. United States v. Jefferson County Bd. of Ed., 372 F.2d 836 (5th Cir. 

1966), aff’d en banc, 380 F.2d 385; Boykins v. Fairfield Bd. of Ed., 
399 F.2d 11 (5th Cir. 1968); Boykins v. Fairfield Bd. of Ed., 421 F.2d 
1330 (5th Cir. 1970); Boykins v. Fairfield Bd. of Ed., 429 F.2d 1234 
(5th Cir. 1970); Boykins v. Fairfield Bd. of Ed., 446 F.2d 973 (5th 
Cir. 1971); Boykins v. Fairfield Bd. of Ed., 457 F.2d 1091 (5th Cir. 
1972).

2. See the landmark panel and en banc opinions at 372 F.2d 836 
(1966) and 380 F.2d 385 (1967).

la



2a

BOYKINS v. FAIRFIELD BOARD OF EDUCATION

students had sought to enforce by the boycott which led 
indirectly to their expulsion. We affirm.

Following the most recent remand of this case to the 
district court, a final plan for the desegregation of the Fair- 
field schools was put into effect. When school next com­
menced, however, Negro students conducted a boycott of the 
school, seeking to enforce demands such as that the School 
Board:

1. Prohibit the practice of requiring spring pre-registration 
of classes although, as the court below found, all students, 
Negro and white, were required to pre-register and no dis­
crimination was shown.

2. Prohibit school authorities from allowing white students 
to leave campus for lunch since it was generally more conve­
nient for them to go home for lunch than for Negro students.

3. Prohibit the school from serving inferior food to Negro 
students, although all students eat in the same two cafeterias.

4. Increase the time for lunch, and the time between 
classes.

5. Order that more Negro students become cheerleaders 
and members of the band, even though the present selection 
process was found by the district court to involve no racial 
discrimination.

6. Order more Negro students to become members of the 
Pep Club even though membership is open to all students.

7. Require a Negro History Week, and a Black Studies 
curriculum.

8. Require “sock hops” and school proms.
9. Change the school disciplinary policy which makes it a 

school offense to be late for class an excessive number of 
times.

10. Require the school to open the school doors before 7:30 
each morning.



3a

BOYKINS v. FAIRFIELD BOARD OF EDUCATION

11. Order teachers at the Fairfield School System to re­
frain from using profanity.

12. Allow Negro students to attend dancing class without 
paying the fee required of other students.

13. Require the school officials to distribute textbooks 
which are in better condition.

This boycott, commenced in late October and carried over 
into early November, resulted in the suspension of over 100 
students, all but three of them Negro, from school. A series 
of motions by counsel for plaintiffs followed, seeking enforce­
ment of such demands as the above and reinstatement of the 
suspended students. On November 9, 1972, the court below 
entered its order requiring the readmission of the suspended 
students and setting a hearing on the motion seeking review 
of the demands upon which the boycott had been based. The 
ordered readmission was contingent upon termination of the 
boycott, return to class by all students, and an end of disrup­
tive activities.

Most students returned to class the next day. Almost 
immediately, however, the same sort of difficulties which had 
plagued the school term recommenced. Clarence Young, one 
of the students who was later expelled, intervened in a trivial 
incident and undertook to instruct a Negro faculty member as 
to the proprieties of his behavior. An altercation between 
them followed. Young berated the instructor, using such 
epithets as “Uncle Tom” and “half whitey.” He was taken to 
the principal’s office, and word of the incident immediately 
spread through the school. Various students, including the 
other expellees, left class without permission. Some, urging 
others to join them, went from classroom to classroom calling 
for students to leave classes to participate in a meeting to 
discuss what should be done to rescue Clarence Young. Many 
students left class, the police were called, and attempts were 
made to persuade the students to return to class without much



4a

BOYKINS v. FAIRFIELD BOARD OF EDUCATION

success. School was therefore closed in the middle of the 
morning and all students sent home.

Twenty-one students were subsequently sent notices of sus­
pension from school for their participation in the disruptions 
of November 10 and were also informed that individual hear­
ings would later be held by the Board of Education to decide 
whether they should be reinstated. These hearings were held 
on November 25, 1972. As a result of the hearings, four of 
the students were immediately readmitted, eight were read­
mitted after a week’s further suspension, one was suspended 
for the remainder of the semester, and eight were expelled. 
The record indicates that, as a result of the expulsion, difficul­
ty was later encountered by the expelled students in obtaining 
entrance to other public schools. As of a hearing held by the 
district court in March of 1973, none of these students had 
reapplied to the Fairfield School Board, so that what the 
consequences of such a reapplication would have been are 
unknown. However, at oral argument the court was advised 
by counsel for plaintiffs that all but one of these students 
were attending school somewhere as of that time.

The procedures which were followed in the hearing, and of 
which complaint is here made, were outlined by counsel for 
the Board as follows:

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



5a

BOYKINS v. FAIRFIELD BOARD OF EDUCATION

resolve any conflict. We’re going to accord Mr. Newton the 
privilege of cross-examination. It is not a right that he can 
insist on, but we are showing him that courtesy. After the 
Board, after the school and the child have presented what­
ever evidence they want, then we will excuse the child and 
go on to the next student. Is that an agreeable process?
Each student was represented by the same counsel, Mr. 

Demetrius C. Newton, and the only objection to the suggested 
procedure voiced by him was a desire on his part to himself 
determine and declare whether the student understood the 
charge against him rather than have the student make and 
state his determination of that matter.3 The suggested proce­
dures were uniformly followed in conducting the Board’s 
hearings.

[1] Appellants principally complain that much of the evi­
dence upon which the expulsions were based consisted of what 
was technically hearsay. This is undoubtedly correct. The 
main witness against the students was the school principal, 
Mr. Hershell Turner, who had investigated the charges 
against the students and who presented the results of his 
investigation of each incident to the School Board. In some 
instances Turner had first-hand knowledge, and in others his 
testimony was based on attendance records and other reports 
which could likely have been qualified under exceptions to the 
hearsay rule; but in main it consisted of reading or reciting 
statements made by teachers in response to his inquiries.

xAs to this contention, appellants correctly concede that the 
present rule of this circuit in school discipline cases affords 
them no comfort. “[T]he 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.” Dixon v. Alabama 
State Board of Education, 294 F.2d 150, 159 (5th Cir. 1961). 
They contend, however, that we should read the Supreme

3. In the event, the charges were of such a simple nature, e. g., 
reviling the teacher before the class, or leaving class after having 
been told not to do so, that no problem was presented.



6a

BOYKINS v. FAIRFIELD BOARD OF EDUCATION

Court’s Goldberg4 and Morrissey5 decisions as expanding the 
requirements of Dixon to add to them universal confrontation 
and cross-examination of witnesses, especially where severe 
punishments are meted out on disputed facts. We decline to 
do so.

There is a seductive quality to the argument—advanced 
here to justify the importation of technical rules of evidence 
into administrative hearings conducted by laymen—that, since 
a free public education is a thing of great value, comparable 
to that of welfare sustenance or the curtailed liberty of a 
parolee, the safeguards applicable to these should apply to it. 
At argument appellants’ counsel, in response to questions, 
opined that a right to appointed counsel was probably also 
existent. In this view we stand but a step away from the 
application of the strictissimi juris due process requirements 
of criminal trials to high school disciplinary processes. And if 
to high school, why not to elementary school? It will not do.

[2] The requirements of due process are sufficiently flexi­
ble to accommodate themselves to various persons, interests 
and tribunals without reduction to a stereotype and hence to 
absurdity.6 As Mr. Justice Stewart, writing for the Court, 
stated in Cafeteria Workers v. McElroy, 367 U.S. 886, at 895, 
81 S.Ct. 1743, at 1748, 6 L.Ed.2d 1230 (1961):

The very nature of due process negates any concept of 
inflexible procedures universally applicable to every imagi­
nable situation, [citations omitted] “ ‘[D]ue process,’ unlike 
some legal rules, is not a technical conception with a fixed
content unrelated to time, place and circumstances.” It is*

4. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011. 25 L,Ed.2d 287 
(1970).

5. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 
(1972).

6. “[T]he standards of procedural due process are not wooden abso­
lutes. The sufficiency of procedures employed in any particular 
situation must be judged in the light of the parties, the subject 
matter and the circumstances involved.” Ferguson v. Thomas, 430 
F.2d 852, 856 (5th Cir. 1970).



7a

BOYKINS v. FAIRFIELD BOARD OF EDUCATION

“compounded of history, reason, the past course of decisions 
. ” Joint Anti-Fascist Refugee Committee v.

McGrath, 341 U.S. 123, 162-163, 71 S.Ct. 624, 643, 95 L.Ed.
817, 848, 849 (concurring opinion).

Basic fairness and integrity of the fact-finding process are the 
guiding stars. Important as they are, the rights at stake in a 
school disciplinary hearing may be fairly determined upon the 
“hearsay” evidence of school administrators charged with the 
duty of investigating the incidents. We decline to place upon 
a board of laymen the duty of observing and applying the 
common-law rules of evidence.

Indeed it is plain that Morrissey does not go so far as 
appellants would have us take the Fairfield Board of Educa­
tion. The right of confrontation and cross-examination there 
discerned in the parolee is not absolute but may be denied for 
good cause, and the receipt of evidence which would be barred 
by the hearsay rule is specifically suggested. Morrissey, supra 
408 U.S. note 5, at 489. It well may be that all Morrissey 
contemplates on this head is precisely what appellants were 
accorded: a right to confront and cross-examine such adverse 
witnesses as appear, without the technical strictures upon 
their testimony of the hearsay rule. But whether or no, we 
reject the attempted analogy of student discipline to parole 
revocation or the termination of welfare benefits. Cf. Stu­
dent Discipline, 45 F.R.D. 133, at 142. The situations treated 
are simply too disparate to permit an uncritical transfer of 
specific due process requirements from one to the other.

[3, 4] Complaint is also made of the severity of the punish­
ment imposed on those who were expelled. The punishment 
was severe, but we cannot say that it was so severe as to have 
been arbitrary or clearly unreasonable. It is agreed on all 
hands that school officials exercise a comprehensive authority, 
within constitutional bounds, to maintain good order and 
discipline on school grounds. E. g., Tinker v. Des Moines 
Community School Dist., 393 U.S. 503, 507, 89 S.Ct. 733, 21 
L.Ed.2d 731 (1969); Bright v. Nunn, 448 F.2d 245, 249 (6th Cir.



8a

BOYKINS v. FAIRFIELD BOARD OF EDUCATION

1971). And in Ferguson v. Thomas, supra note 6, 430 F.2d at 
859, we noted that the findings of school agencies “ . 
when reached by correct procedures and supported by sub­
stantial evidence, are entitled to great wreight. . . . ”

The Fairfield School Board was presented with a situation 
of recurring disorder which bid well to disrupt finally a school 
year already crippled. Firm action was called for and was 
taken, but no indiscriminate or mass discipline was imposed. 
The punishment meted out was such as has traditionally been 
imposed by school authorities in severe cases. The district 
court has reviewed the evidence supporting the Board’s action 
in each instance, as have we, and has concluded that it is 
substantial. We have held that due process was accorded, and 
we cannot say that the findings of the court below were 
erroneous.

[5] Finally, appellants complain of the refusal of the dis­
trict court, in the name of integration, to require the Board to 
accede to such demands as are quoted above. Whatever merit 
these propositions may have as suggestions to the School 
Board, on the record they are not for our cognizance. The 
court did not err in finding from the evidence presented that 
each of them was either insubstantial or involved no racial 
discrimination. It appears that Fairfield’s dual school system 
is drawing to a close and with it, we may hope, this long case.

Affirmed.

GODBOLD, Circuit Judge (dissenting in part):

I must record a partial dissent, to that part of the decision 
which affirms the expulsion of eight black students.

The power to expel students is not unlimited and cannot be 
arbitrarily exercised. Dixon v. Alabama State Board of Edu­
cation, 294 F.2d 150, 157 (C.A.5, 1961).

Turning then to the nature of the governmental power to
expel the plaintiffs, it must be conceded . . . that
that power is not unlimited and cannot be arbitrarily exer-



9a

BOYKINS v. FAIRFIELD BOARD OF EDUCATION

cised. Admittedly, there must be some reasonable and 
constitutional grounds for expulsion or the courts would 
have a duty to require reinstatement.

Only recently we said that there can be such shocking dispari­
ty between an offense by a pupil and the disciplinary penalty 
imposed upon him by school authorities that the commands of 
the Fourteenth Amendment have not been met. Lee v. 
Macon County Board of Education (Randolph County), 490 
F.2d 458 [C.A.5, 1974], Accepting the foregoing principle, the 
majority hold, though without discussion of the underlying 
facts, that the expulsions of eight pupils were not so severe as 
to have been arbitrary or clearly unreasonable.

1. The facts.
The background is as stated in the majority opinion. Oper­

ation of the Fairfield school system has been a fruitful source 
of litigation. The Board is now before us for at least the 
seventh time. This is not to say that the Board cannot be 
right and blacks cannot be wrong, but that the Board’s track 
record in desegregating the system must be considered as part 
of the overall circumstances of the present case. More than 
100 students were suspended from the Fairfield High School

I. United States v. Jefferson County Bd. of Ed., 372 F.2d 836 (C.A.5, 
1966), aff’d en banc, 380 F.2d 385 (1967) [reversing decision in favor 
of Board, ordering desegregation of schools and permitting freedom 
of choice]; Boykins v. Fairfield Bd. of Ed., 399 F.2d 11 (C.A.5, 1968) 
[reversing Board’s denial of freedom-of-choice applications of blacks 
to transfer to formerly all-white schools]; Boykins v. Fairfield Bd. of 
Ed., 421 F.2d 1330 (C.A.5, 1970) [reversing because freedom-of- 
choice not operating acceptably and school attendance zones drawn 
by Board in a manner reducing rather than furthering desegrega­
tion]; Boykins v. Fairfield Bd. of Ed., 429 F.2d 1234 (C.A.5, 1970) 
[remanding because desegregation plan of Board did not change 
status of integration in elementary schools and did not explore 
possible alternatives as to junior and senior high schools]; Boykins 
v. Fairfield Bd. of Ed., 446 F.2d 973 (C.A.5, 1971) [remanding for 
reconsideration in the light of new Supreme Court decision]; Boy­
kins v. Fairfield Bd. of Ed., 457 F.2d 1091 (C.A.5, 1972) [reversing 
and remanding for failure to desegregate an ali-biack school and for 
additional hearing on issue of whether black high school students 
were being purposefully segregated by being placed in classes held 
in a separate building].



10a

BOYKINS v. FAIRFIELD BOARD OF EDUCATION

because of repeated absences during a black boycott. On 
November 9, 1972, those suspended were ordered by the 
District Court to be readmitted, contingent upon termination 
of the boycott, return of all students to classes, and an end to 
disruptive activities. Readmissions began on the morning of 
November 10. The Board takes the position, and the District 
Court agreed, that the eight pupils were expelled for what 
they did that day. Let us see what it was.

Clarence Young: Events involving him triggered the diffi­
culties of November 10. The charge against him was:

He was disrespectful for authority and carrying on in the 
hall as in the sense of inciting something among the stu­
dents.

The testimony against him came from Coach Evans, a Negro, 
plus a brief statement by Principal Turner. From the testi­
mony the Board could conclude that the following events 
occurred. It was necessary for suspended students to get 
passes from the guidance office to return to classes. On the 
morning of November 10 students began walking into the 
building where the guidance office was located. Young

seemed to be directing other students to come in the build­
ing because he stopped at the front door at the main 
entrance up there mouthing off at the other students, and 
getting, like he was getting everything together for them to 
march in the room.

Coach Evans opened a door and the door struck a male and 
then a female student in the line of students waiting to get 
passes. Evans apologized to them. Either before he apologiz­
ed, or while he was doing so, or immediately after he had done 
so—the facts are unclear—Young told him he owed an apolo­
gy to the female.2 Immediately thereafter other students 
began talking with Young. Evans considered that Young

2. This is the incident that the majority opinion describes as Young’s 
“undertaking] to instruct a Negro faculty member as to the proprie­
ties of his behavior.”



11a

BOYKINS v. FAIRFIELD BOARD OF EDUCATION

“was trying to bring the crowd on,” that Young was “for the 
wrong thing.” Coach Evans felt “in my expectation, he didn’t 
come there to go to school that day. That is my expectation. 
I could be wrong.” Evans secured a pass for Young and gave 
it to him so that he would go on to class. As Young walked 
away he referred to Evans as “Uncle Tom” and “Half Whi- 
tey”. As Young crossed an open area en route to his class he 
was seen to be “carrying on.” A city councilman present saw 
him and told Evans he should have a talk with Young because 
“it looks like he is for the wrong thing.”

Coach Evans engaged Young in conversation, and Young 
took the position he had done no wrong and was being “picked 
on.” Possibly he repeated the racial epithets he had earlier 
used. Evans took him to the principal’s office and talked with 
him. Young was excited and talked sufficiently loudly that a 
staff member suggested that the principal also go into the 
office, and Principal Turner went in and stayed briefly. A 
friend of Young’s called his mother, she came to the office, 
and in the ensuing conversation she twice told her son to 
“simmer down.”

Evans testified that he did not consider Young to be a 
leader of the other students. He did, however, hear Young 
telling other students to get their passes. Evans disapproved 
of this, though his reason is unclear, since without dispute the
necessity for passes was being communicated by word of 
mouth.

As Judge Gee’s opinion points out, word spread about the 
difficulty with Young, some black students left their classes, 
and some went to other rooms and called for other students to 
leave classes and join in a meeting to discuss what should be 
done about the incident. A group gathered outside the princi­
pal’s office where conversations with Young were, or had 
been, going on. That, brings us to the facts concerning the 
other expellees.



12a

BOYKINS v. FAIRFIELD BOARD OF EDUCATION

Jacque Guest: The charge was that he left class without 
permission and encouraged other students either not to go to 
class or to walk out of classes. He admitted the offense, 
including going to another classroom and encouraging stu­
dents to leave.

Beverly Claiborne: The charge against her was twofold: 
first, that she obtained a pass but did not go to her first 
period class; second, that subsequently Principal Turner told 
her she was expelled and began to explain something to her 
[apparently her right to a hearing], whereupon she got up and 
left his office and in an outer office, in the presence of 
members of his staff and other students, used profanity 
concerning him.3 Miss Claiborne admitted saying the words 
but claimed she had said them to herself and not “out loud.”

Linda Meadows: The charge was that she came to a class­
room other than that to which she was assigned, the teacher 
told her to leave, and she cursed him in the presence of the 
class and left. The Board was entitled to accept the written 
statement of the teacher that this occurred. It could accept 
Miss Meadows’ testimony that her purpose in going to the 
classroom was to see if other students who had participated in 
the walkout were in the room. There is, however, no evidence 
that she or anyone with her urged students in the classroom to 
leave class or indeed said anything to them. On cross exami­
nation of Miss Meadows the Board attorney questioned her 
concerning whether she went to classrooms other than to one 
to which she admitted going, and she denied doing so, and 
there is no evidence that in fact she did.

Darlene Phelps and Cathy Scott: The charge was leaving 
their first period classroom without permission. The Board 
could accept their teacher’s statement that they did so. Miss 
Phelps acknowledged going to another classroom, stating that 
she went to a study hall and complained to the teacher about
3. The verbiage is unrevealed because at the Board hearing it was not

verbalized but written on a piece of paper that was handed around
and discussed.



13a

BOYKINS v. FAIRFIELD BOARD OF EDUCATION

what was occurring [presumably the events of the morning]. 
That teacher neither testified nor gave a statement, and there 
is no evidence that Miss Phelps attempted to get students to 
leave the study hall, or indeed that she said anything to the 
students, or that her conduct was disruptive. Faculty mem­
ber Bird testified that in the presence of Cathy Scott he told a 
group of students to return to their classes.

John Hall and Beverly Law: They were present for the 
hearing before the Board but, after several hours, left before 
their cases were reached. The Board heard their cases in 
their absence. The evidence against them, which the Board 
could accept, was the written statement of their teacher that 
they left class without permission after being told repeatedly 
to remain.

2. The District Court order.
In reviewing the Board action, the District Court recog­

nized, citing Dixon, that part of its function was to determine 
“whether there was evidence of some reasonable or constitu­
tional ground for the action taken in imposing the sentence of 
expulsion.” In rejecting plaintiffs’ contention that the expel­
lees were punished because they had been leaders in the 
boycott before November 10, the court said:

The evidence does not show that these students were 
disciplined for being leaders in the boycott prior to Novem­
ber 10, 1972, but the fact that they became leaders in the 
continuation of the demonstration on November 10, 1972, 
was a matter certainly material for the consideration of the 
school authorities in view of the Court’s order of November 
9, 1972, and the school authorities’ attempt to prevent 
further demonstrations and disturbances when school recon­
vened on November 10, 1972. (Emphasis added.)

The facts, as set out above, reveal that the District Judge’s 
premise that the eight expellees were “leaders in the continu­
ation of the demonstration on November 10” was wrong, at 
least with respect to Phelps, Scott, Hall and Law. Phelps’



14a

BOYKINS v. FAIRFIELD BOARD OF EDUCATION

offense was to leave her class, go to another classroom and 
register a complaint with the teacher. Scott left her class and 
later was where she could have heard a teacher tell students 
to return to class. Hall and Law left their class after being 
told not to. Turning to the other four, the Board could accept 
that part of Evans’ testimony tending to describe the actions 
of Young as a leader.4 Guest’s actions were those of a leader. 
Claiborne and Meadows cannot accurately be described as 
leaders.

The situation on November 10 was volatile. School officials 
were attempting to defuse it and get on with the primary job 
of educating young people. It was important that students go 
to and remain in their classrooms. Conduct that in a different 
atmosphere might have called for less severe punishment 
could, under these particular circumstances, justify more se­
vere penalties. Cf. Dunn v. Tyler Independent School Dis­
trict, 460 F.2d 137 (C.A.5, 1972). In my view the expulsions of 
Young and Guest were within constitutional bounds. I am 
much less certain as to Claiborne and Meadows—I have the 
feeling that in the calm light of another day the District 
Court might not have sustained their expulsions but for the 
fact he erroneously thought they were leaders in re-igniting 
disorder. I am not uncertain as to Phelps, Scott, Hall and 
Law. What they did, and all that they did, was to leave their 
classrooms without authority just as did numerous others on 
the same occasion. With respect to these four, there is no 
evidence that any one of them urged any other student to 
leave class or disturbed any classroom, participated in any 
disorder (other than leaving class) or committed any act of 
leadership. A sentence of lifetime exile from the public school 
system of the place where they reside cannot stand under 
these circumstances.

[A] sentence of banishment from the local educational sys­
tem is, insofar as the institution has power to act, the

4. Also Young’s expulsion was independently sustainable on the
basis of his use of expithets directed at Coach Evans.



15a

BOYKINS v, FAIRFIELD BOARD OF EDUCATION

extreme penalty, the ultimate punishment. In our increas­
ingly technological society getting at least a high school 
education is almost necessary for survival. Stripping a 
child of access to educational opportunity is a life sentence 
to second-rate citizenship, unless the child has the financial 
ability to migrate to another school system or enter private 
school.

Private citizens, law making bodies, and the media all 
bend their efforts toward encouraging children to complete 
their high school educations and to avoid becoming dropouts 
and burdens to society. In the twenty years since Brown v. 
Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 
(1954), this country has committed itself to a policy against 
state-imposed public school segregation. It is not lesser but 
more stringent state action to bar a child forever from 
public school, with the result that he secures no education at 
all.

Lee v. Macon County Board of Education, supra, 490 F.2d p. 
460.

The plaintiffs urge that they were singled out for expulsion 
for reasons other than what they did on November 10. There 
is good circumstantial evidence supporting that claim. After 
their expulsion at least four of them attempted to enroll in 
other public high schools in adjacent geographical areas, and 
were informed that each would have to secure an “OK” from 
the Fairfield superintendent to do so. They approached him, 
asked his approval, and it was refused. The superintendent 
testified that all transcripts and other required records were 
furnished but that affirmative statements in the form of any 
“OK” or “recommendation” were denied. Obviously the su­
perintendent had no legal duty to assist these young people to 
get into schools elsewhere. But I confess my inability to 
understand the unwillingness to lift a finger—even to the 
extent of a statement saying “we expelled them for good 
reasons, but if you want to accept them we do not object.” 
Sentence of exile was coupled with a specific refusal to act,



16a

BOYKINS v. FAIRFIELD BOARD OF EDUCATION

with the consequence that the effective scope of exile was 
broadened to include adjoining geographical areas as well. 
The Board’s argument that it does not control the admission 
policies of other schools is a subterfuge. No one contends that 
it does. The Superintendent’s refusal cut off at the threshold 
the possibility that other systems, pursuant to their own 
admission policies, might have been willing to accept the 
students.

Secondly, there was obvious disparity in penalties. Numer­
ous students left their classes without permission. A number 
of those charged for doing so were not expelled, including one 
who left ostensibly to go home but remained on the school 
grounds knowing that he was not supposed to do so; another 
who left and went home; a third who left class in response to 
students coming to his classroom and telling him about Clar­
ence Young.

Thirdly, the Board declined to receive evidence of prior 
conduct, good or bad, by the charged students. It announced 
that it was limiting itself to consideration of events of No­
vember 10. This, of course, makes the disparity in punish­
ments more suspect. It leaves no explanation, or even at­
tempt at explanation, for the wide disparities. The Board’s 
response is that it is entitled to impose differing penalties. 
Indeed it has that authority but the presence of power is not 
an explanation for the manner of exercise. Additionally, this 
limitation of evidence by the Board accentuates more sharply 
the erroneous premise by the District Judge that all expellees 
were leaders on November 10.

With apparent determination to drive every nail into the 
coffin, the majority make the point that none of the students 
reapplied for admission, so that what the consequences of 
reapplication would have been are unknown. This was hardly 
a promising request to be made to a system that would not 
even “OK” an attempt to apply for admission to another 
system, but pretermitting that point, there is no such require­
ment as a condition precedent to judicial consideration or



17a

BOYKINS v, FAIRFIELD BOARD OF EDUCATION

judicial relief, nor does failure to reapply diminish the finality 
of the Board’s decision of permanent expulsion. Also, while it 
is not a matter of formal record, the court inquired at oral 
argument about the ultimate fate of the expellees. We were 
told that some were admitted to parochial schools where 
tuition is required, at least two are attending schools in 
another state, and one is known to be out of school. The 
Fairfield system records on each of the eight students contin­
ue to reflect that he or she was permanently throwm out of 
the system and imply that each was guilty of conduct justify­
ing that penalty. This impediment to college admission and 
to public and private employment is now' made immutable. 
Thus the statement by the majority that all but one of the 
eight were able to find schooling elsewhere is mere legal 
soothing syrup neither mitigating the wrong nor mooting the 
case.



18a

Decision of District Court, December 14, 1972
Opinion in L ieu or F ormal F indings

By this Court’s opinion of November 27, 1972, the plain­
tiffs’ motion seeking relief from explusion or suspension of 
certain students was continued pending administrative 
hearing. The Fairfield Board of Education held the ad­
ministrative hearings on November 25, 1972. It is not 
questioned that the students involved had advanced writ­
ten notice of the charges against them and that upon the 
hearing each one was advised of the charges and later of 
the action taken by the Board. Twenty-one students were 
involved. The following students were readmitted as of 
November 27,1972: Marsha Gulley, Randy Lawrence, Linda 
Watts and Anthony Williams. The following students 
were readmitted as of December 4, 1972: Cleophus Carter, 
David Coleman, Roland Lawrence, Richard McCurtis, Eddie 
McKenzie, Roger McLin, Falenza Pickens and Beverly Wil­
liams. Vanessa Arrington was suspended for the remainder 
of the semester. The following students were expelled: 
Beverly Claiborne, Linda Meadows, Clarence Young, 
Jacques Guest, Darlene Phelps, Cathy Scott, John Hall 
and Beverly Law.

The motion as it now stands challenges the suspension of 
Vanessa Arrington for the remainder of the semester and 
the expulsion of the eight students above named.

As found by the order of November 9, 1972, some 114 
students who were involved in the boycott were dropped 
from the roll because of absences of 20 or more days, in 
violation of Board of Education Rule 20. The Court di­
rected the readmittance of these students, including those 
later involved in the expulsion and suspension action. 
The Court was assured by the counsel for the plaintiffs 
that if these students were readmitted, plaintiffs and their



19a

Decision, of District Court, December 14, 1972

counsel would exercise every reasonable effort to terminate 
the boycott by November 10, 1972, inasfar as the students 
themselves at Fairfield High School were concerned. In 
the order of November 9, 1972, the Court stated that:

“The Court does not look with favor upon any action 
that contravenes the principle that he who seeks equity 
must offer to do equity. Consequently, the relief af­
forded the movants is conditioned upon the abandon­
ment of the boycott by all of the students in the Fair- 
field system simultaneously with re-admission of the 
students who are involved under the motion.”

Under the Court’s order the re-admission was to take effect 
on November 10, 1972. The tumult that had existed during 
the boycott was continued on the tenth. Police officers had 
to be called in to police the school.

After Beverly Claiborne had obtained her readmittance 
slip from the counselor’s office she did not report to her 
first period class with Mr. Craig, and on Monday when 
she was informed that she had been expelled she used vile 
and profane language in Mr. Turner’s (principal) pres­
ence. She denied using the language but on cross-examina­
tion she admitted that she made the statements “To myself. 
I didn’t say it out loud, to myself I did, but not out loud.” 
She also contended that she had been excused. The evi­
dence sustained the charges against her.

Linda Meadows went to a room to which she was not 
assigned and when instructed to leave cursed the teacher 
in front of the class and then left. She denied using the 
profane language. She admitted looking into the various 
rooms to ascertain who was in the demonstration or if 
anyone who was in the demonstration was in the class­
rooms. The evidence sustained the charges.



20a

Decision of District Court, December 14, 1972

Clarence Young was charged with being disrespectful 
to Mr. Evans, a black teacher, and inciting the demon­
strators and directing the students who were in the demon­
stration on the morning of November 10, 1972. He called 
Mr. Evans an “Uncle Tom” and “half whitey.” Young 
denied making these statements to Mr. Evans. The evi­
dence sustained the charges.

Jacques Guest was charged with walking out of his class 
without permission on the morning of Friday, November 
10, 1972, and encouraging other students either to not go 
to class or to walk out of their classes. The evidence sub­
stantiates these charges. Guest admitted walking out of 
the class before the period was over without the permission 
of the teacher.

Darlene Phelps was charged with leaving her first period 
class on November 10, 1972, without the permission of Mrs. 
Sexton, her teacher. She testified that she had the teach­
er’s okay. The evidence sustained the charge.

Cathy Scott was also charged with leaving her class on 
the morning of November 10, 1972, without permission. 
She testified that she had Mrs. Sexton’s permission to 
leave. There was evidence to sustain the action of the 
Board in expelling this student.

John Hall walked out of his class without permission 
on the morning of November 10, 1972, after being re­
peatedly told to stay in the class; so did Beverly Law. 
Neither John Hall nor Beverly Law appeared for the hear­
ing. There was sufficient evidence to sustain the action 
of the Board.



21a

Decision of District Court, December 14, 1972

Vanessa Arrington left her class during the first period 
on the morning of November 10, 1972, without the per­
mission of her teacher. She testified that when everybody 
else had walked out of Mrs. Robinson’s room she asked 
permission to leave and permission was granted. She 
conceded that to leave the room she had to have a writ­
ten slip evidencing permission, even to go to the restroom. 
She further testified that she asked for one of the slips 
but was not given it. There was evidence to sustain the 
suspension.

In a hearing of this nature the Court does not understand 
that it has the function of retrying the issues of expulsion 
or suspension de novo. Nor is it the Court’s, duty to pass 
upon the credibility of witnesses. It appears that its func­
tion is to determine: (1) whether there has been pro­
cedural due process, and (2) whether there was evidence 
of some reasonable or constitutional ground for the action 
taken in imposing the sentence of expulsion or suspension. 
Dixon v. Alabama State Board of Education, 294 F.2d 
150.1

In view of what had occurred at the school prior to 
November 10, 1972, it was essential that the students go 
to their classes and remain in their classes rather than 
milling around in the halls and continuing the demonstra­
tion. I t is not logical nor does it make sense that the 
teachers would excuse the students from the classes as 
several of them have testified. The demonstrations attend­
ing the boycott could hardly be prevented if the students 
were excused from their classes or if they walked out 
deliberately as the evidence indicates these students did.

1 “1A1 full-dress judicial hearing, with the right to cross-examine 
witnesses, is [not] required.”-—Id.



22a

Decision of District Court, December 14, 1972

This Court’s order of November 9, 1972, giving these 
students the right to return to their classes was condi­
tioned upon their abandonment of the boycott. Not only 
did the action which the evidence shows that they took 
contravene the instructions of the school authorities, but 
it flew in the face of this Court’s order of November 9, 
1972. In view of those demonstrations the school au­
thorities felt it necessary to excuse school on November 
the tenth and this was done and another day was lost. 
The maintenance of discipline was a matter of first con­
cern if classes were to continue. The students who were 
disciplined by expulsion or suspension flaunted the funda­
mental principles of discipline which obviously were in­
herent in the situation existing on the morning of Novem­
ber 10, 1972, namely, that they should go to and remain 
in their classes and not become involved in further demon­
strations.

Counsel for the plaintiffs contends that the students are 
being punished because of their leadership in the boycott, 
a boycott which had cost the School Board some $30,000.00 
in state funds. The evidence does not show that these 
students were disciplined for being leaders in the boycott 
prior to November 10, 1972, but the fact that they became 
leaders in the continuation of the demonstration on No­
vember 10, 1972, was a matter certainly material for the 
consideration of the school authorities in view of the 
Court’s order of November 9, 1972, and the school au­
thorities’ attempt to prevent further demonstrations and 
disturbances when school reconvened on November 10, 
1972. Counsel complains that others who were equally 
guilty were not punished by expulsion or suspension. This 
fact, if it be a fact, could hardly be justification for lifting



23a

Decision of District Court, December 14, 1972

the sentences with respect to these students. The hearing 
that was held by the Board was an extensive one and there 
was much evidence. The Court does not feel that it is 
called on to analyze all of the evidence. It simply states 
that within the ambit of its prerogative respecting the re­
view that the students now complaining were afforded 
procedural due process and the expulsions and the suspen­
sion were merited under the evidence.

An order will be entered pursuant to the foregoing 
findings.

Done this the 14th day of December, 1972.

H . H . Grooms

United States District Judge



24a

Order and Oral Opinion of District Court, 
March 2, 1973

Order

This matter came on for hearing on March 2, 1973, upon 
the plaintiffs’ motion for emergency relief filed herein on 
February 21,1973. After hearing the parties and upon due 
consideration thereof, the Court is of the opinion that 
said motion is due to be overruled.

It is, therefore, o r d e r e d , a d ju d g e d  and d e c r e e d  that the 
plaintiffs’ said motion be and the same hereby is overruled.

Done and Ordered, this the 2nd day of March, 1973.

H . H . Grooms

United States District Judge



25a

Order and Oral Opinion of District Court, March 2, 1973

Obal Op in io n

The Court: Gentlemen, this matter, I think, probably 
vests itself to the school Board, to the school authorities. 
In the absence of some evidence that there has been some 
change in conditions, I would not be justified in vacating 
this order that was previously entered. Now maybe the 
School Board of the School officials will relent, that de­
pends a lot on the conduct, maybe, of the students or their 
willingness to—well, to ask for forgiveness and so on, but 
that is a matter that should be addressed to the School 
Board, and they haven’t re-applied to the School Board 
for re-admission out there, and that is where they should 
start in this matter.

I am not inviting trouble for the School Board, but I 
don’t think that it’s a matter for this Court, and it’s a 
matter for the Board, and if there is new evidence brought 
out that there should be a changed condition or the Court 
should modify the order then I can proceed with the 
matter at that time, but at this juncture I would just be 
acting without any reason or evidence, Mr. Newton, to 
vacate this order.

Mr. Newton: If it please the Court, your order sort of 
foreclosed any attempt that the students have, you heard 
the testimony from the Superintendent.

The Court: The School Board has the authority to 
modify this order, I didn’t expell the students, they ex­
pelled the students.

Mr. Newton: You upheld it.
The Court: I didn’t direct that, what the School Board 

should do permanently, that is up to them, if they want 
to modify that or if they want to reconsider their order, 
of course, they have the right to do so.



26a

Order and Oral Opinion of District Court, March 2, 1973

Mr. Newton: Exactly.
The Court: And I think any attempts to that end should 

be addressed to the School Board.
Mr. Newton: If it please the Court, once Tour Honor— 

the School Board’s language was permanent expulsion, an 
expulsion which this Court upheld, and we say—

The Court: Well, permanent is like my wife’s perma­
nent wave, she gets a permanent wave and I say, “Well, 
I can’t understand why this wave isn’t permanent, you are 
getting another one now”.

Mr. Newton: Well, Your Honor, in the light of the 
testimony we just heard means permanent here, unlike the 
permanent wave, it seems to me to mean very perma­
nent, the Superintendent says, “No, because you are ex­
pelled”.

The Court: Maybe they have got a bigger spot in their 
hearts than you think, Mr. Newton.

Mr. Newton: In the meantime, while we have—we have 
students wTho are not entitled to a free public education.

The Court: That is the consequences of expulsion, and 
I will overrule the motion.

Mr. Newton: Thank you very much.

E n d  o f  P b o c e e d ix g s



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