Stricklin v. The Regents of the University of Wisconsin Brief of Appellees

    I n  t h e

l&niteb 0tate| QJourt of Appeals
F o b  the S b v e n t h  C ir c u it

Case No. 17597

R,on m e  Stricklin, et al.,

Plaintiffa-Appellees, 
v.

T he R egents or the U niversity of W isconsin, etc., e t  ah.,

Vefend-anis-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF WISCONSIN,

HONORABLE JAMES E. .DOYLE, JUDGE y

BRIEF OF APPELLEES
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Jack Greenberg 
Michael Meltsner 
Haywood Burns

10 Columbus Circle
New York, New York 10019

Percy L. Julian, Jr.
330 East Wilson Street 
Madison, Wisconsin

Attorneys for Appellees

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INDEX page

Statement of Questions Involved.....................  1
Statement of the Case................................ 2
ARGUMENT.............................................  8
I. THIS COURT LACKS JURISDICTION BECAUSE THE 

GRANTING OF A TEMPORARY RESTRAINING ORDER
IS NOT APPEALABLE.............................  8

II. THE ISSUE PRESENTED ON APPEAL REGARDING THE
ORDER OF MARCH 18, 1969 IS MOOT................. 15

III. THE DISTRICT COURT HAD JURISDICTION AND DID
NOT ABUSE ITS DISCRETION IN THE GRANTING OF 
EQUITABLE RELIEF............................... 18

IV. THE SUMMARY SUSPENSION OF PLAINTIFFS VIOLATED
DUE PROCESS.................................... 22

CONCLUSION...........................................  2 8

-i-



TABLE OF AUTHORITIES 
CITED

CASES page

American Cyanamid Company v . Lincoln
Laboratories. 403F.2d 486 (7th Cir. 1968)..............  9

Anderson National Bank v. Lockett, 321 U.S. 233 (1944)., 22
Atlantic Seaboard Corp. v. Federal Power Commission,
200 F . 2d 796, 797 (4th Cir. 1953)......................  18
Austin v. Altman, 332 F.2d 273, 275 (2nd Cir. 1964)....  9
Barr v. Mateo, 355 U.S. 171, 172 (1957)................  18
Brinkerhoff-Faris Trust and Savings Co. v. Hill,
281 U.S. 673, 678 (1930)................................ 23
Brown v. Bernstein, 49 F.Supp. 497 (M.D. Pa. 1943).....  13
Carpenters' Union v. Citizens Committee, 333 111.
225, 164 NE 393 (1928)................................. 20
Carroll v. Princess Anne County, 393 U.S. 175 (1968) ___ 26
Connell v. Dulien Steel Prods Inc., 240 F.2d 414
(5th Cir. 1957) cert denied, 356 U.S. 968 .............  9
Dilworth v. Riner, 343 F.2d 226, 229 (5th Cir. 1965)___ 11
Dixon v. Alabama State Board of Education, 294 F.2d
150, 155 (5th Cir. 196D cert denied, 360 U.S. 930 .... 22, 23
Doremus v. Board of Education, 342 U.S. 429, 433 (1952). 17

-ii-



page

Esteban v. Central Mo. State College, 277 F.Supp.
649 (W.D. Mo- 1967)..................................  23
Fair v. Dekle, 367 F.2d 377, 378 (5th Cir. 1966)....  17
Grant v. United States, 282 F.2d 165 (2nd Cir. 1960) . . 9
Greene v. Howard University, 271 F.Supp. 609
(D.D.C. 1967)........................................  23
Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d
738 (2nd Cir. 1953).................................. 13
In Re Oliver, 333 U.S. 257, 273 (1947)..............  22
International Products Corporation v. Koons, 325 
F . 2d 403 (2nd Cir. 1963)............................. 9
Kelly v. Wyman, 294 F.Supp. 893 (S.D.N.Y. 1968).....  26
Knight v. State Board of Education, 200 F.Supp. 174 
(M.D. Tenn. 1961).................................... 23
Madera v. Board of Education, 267 F.Supp. 356
(S.D.N.Y. 1967) rev'd on other grounds 386 F.2d
778 (2nd Cir. 1967), cert denied,390 U.S. 1028 (1968) 23
Marzette v. McPhee, 294 F.Supp. 562 (1968)..........  27
Moore v . Student Affairs Comm of Troy State 
University, 284 F.Supp. 725 (M.D. Alabama 1968).......  23
Mu1lane v. Central Hanover Trust Co., 339 U.S. 306,
313 (1950)........................................... 23
Pennsylvania Motor Truck Association v . Port of
Philadelphia Marine Terminal Association, 276 F.2d
931 (3rd Cir. 1960)..............   9,11
Precision Instrument Manufacturing Co. v . Automative 
Maintenance Co.. 324 U.S. 806, reh. denied 325 U.S.
893..................................................  20

-iii-



page

Republic Molding Corp. v. B.W. Photo Utilities,
319 F .2d 347 (9th Cir. 1963)......................  20
Schiff v. Hannah, 282 F.Supp. 381 (W.D. Mich. 1966)
(en banc)..........................................  2 3
Troy State University v. Dickey, 402 F.2d 515
(5th Cir. 1968)...................................  17
Wasson y. Trowbridge, 382 F.2d 807 (2nd Cir. 1967). 24
Western Union Tel. Co. v. U.S. Mexican Trust Co.,
221 F.545, 553 (8th Cir. 1915)....................  11
Woods v. Wright, 334 F.2d 369 (5th Cir. 1964).....  23
Wright v. Texas Southern University,392 F.2d 728 
(5th Cir. 1968)...................................  24

-xv-



28 U.S.C. § 1292 (a) (1)............................. 8,9,14
28 U.S.C. § 1331 ....................................  19
28 U.S.C. § 1332 ....................................  19
28 U.S.C. § 1343 (3) .............................  19
28 U.S .C. § 1343 (4) .............................  19
Rule 28 (a) (3) Rules of Appellate Procedure .......  2
Rule 65 (b) Federal Rules of Civil Procedure .......  12

STATUTES AND RULES Page

-v-



OTHER AUTHORITIES Page

53 A.A.U.P. Bull. 365 (1967) ......................... 27
2 7 Am. Jur. 2d § 142..................................  20
3 Barron and Holtzoff, Federal Practice and
Procedure, § 1440 (Wright ed. 1958)..................  11
71 Harvard Law Review 550 ............................ 13
Moore, Federal Practice f 65.07 (2nd Ed. 1955) ......  9
Wright, Federal Courts (1963) .......................  19

-vi-



In The

UNITED STATES COURT OF APPEALS 
For the Seventh Circuit

Case No. 17597

RONNIE STRICKLIN, et al.,
Plaintiffs-Appellees, 

v .
THE REGENTS OF THE UNIVERSITY 
OF WISCONSIN, etc., et al.,

Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF WISCONSIN, 

HONORABLE JAMES E. DOYLE, JUDGE.

BRIEF OF APPELLEES * 1 2

STATEMENT OF QUESTIONS INVOLVED

1. Is the district court's order appealable? 
Not answered by the court.

2. Is the issue presented for review moot? 
Not answered by the court.



3. Did the district court lack jurisdiction or abuse 
its discretion in granting equitable relief?

The court found jurisdiction present.

4. Did the summary suspension of appellees violate 
Due Process?

The court answered this question in the 
affirmative.

STATEMENT OF THE CASE
I

Appellees concur in the appellants' statement of 
the Nature of the Case (Appellants' Brief pp. 1-2).

II

Appellants 1 Statement of Facts is a flagrant violation
of accepted canons of objective presentation by an appellant.
(Appellants' Brief pp. 4-7). It totally fails to confine
itself to facts relevant for purposes of review as required

1/
by Rule 28 (a) (3' Appellate Rules of Procedure. It states

1/ E.g., The gratuitous comments about and description of
"the serious student riots" and the speculation about 
the objectives of the participants are all extraneous 
to any relevant consideration before the court on this 
appeal.

2



as fact matters which were controverted in the district
court and attributes conduct to appellees which had

2/
not been the subject of proof at an appropriate hearing. 
For these reasons appellees adopt for present purpose the 
facts as found by the district court which in substance 
are as follows:

On or before March 6, 1969, each of the plaintiffs 
was an enrolled student in the University of Wisconsin, 
in good standing. On March 6, 1969, the Board of Regents 
met; heard an oral presentation by the Chief of the 
Department of Protection and Security of the University 
in which he described disorders on the campus which had 
occurred February 27, 1969, and earlier, and in which 
he referred specifically to violent conduct in which each 
of the plaintiffs was said to have engaged; and adopted 
a resolution. The resolution recited that violence had 
occurred on the campus February 27; that there were strong

2_/ E.g., None of the conduct which appellants seek to
attribute to appellees was proven, or even mentioned 
by the district court. There were no findings of 
fact which support appellants' accusations, and even 
if there were these considerations would not be re­
levant on the matter presently before the court for 
review. (See, Argument III-IV, infra).

3



indications that it would be repeated; and that "the 
Administration of the Madison campus has shown reasonable 
grounds to cause us to believe that [the plaintiffs] have 
participated both in causing the violence on February 27, 
1969, and in earlier attempts to disrupt University-run 
or University-authorized activities on the Madison Campus". 
By the resolution the Regents suspended the plaintiffs 
"immediately", pending a hearing on charges to be brought 
by the administration. The administration was directed 
to bring such charges on or before March 8, and the hearing 
was ordered to commence on March 19, unless another date 
were to be set by the Board's hearing agent after consul­
tation with counsel for the administration and for the 
students. A distinguished former member of the Supreme 
Court of Wisconsin was appointed as a hearing agent, to 
make findings of fact and to report his findings and re­
commendations to the Board. The Regents resolved that the 
Board would review the three cases at the earliest possible 
date on the record compiled by the hearing agent.

Within a day or two thereafter, each of the plaintiffs 
was notified of his immediate suspension, and each of them 
was furnished with a specification of charges and a notice

4



of the March 19 hearing.

On March 4, 1969, the Vice Chancellor for Student 
Affairs commenced an effort to reach each of the plain­
tiffs by phone. He reached two of them March 4 and one 
on March 5. To each of the three the Vice Chancellor read 
the following statement (with appropriate name changes) :

"I would like a few minutes to read a statement to 
you. You are James M. Strickler? (He answered: 'Yes.')
May I proceed? (He answered:'Yes.')

"This is to inform you that allegations have been 
made against you involving intentional conduct that 
seriously damages or destroys University property or 
attempts to seriously damage or destroy University 
property, and involving intentional conduct that in­
dicates a serious danger to the personal safety of 
other members of the University community.

"In order to give you an opportunity to present your 
side of the case informally before a decision whether 
or not to bring charges is made, I would like you to 
respond by phone now or see me before noon this 
Wednesday, March 5, 1969. I will attempt to answer

5



any questions you may have regarding the procedures 
which will be followed if charges are brought against 
you. A copy of the Regent Bylaws on Student Disci­
pline and Faculty Document 226, both of which out­
line these procedures are available in Room 123 
Bascom Hall.

"Please understand that you need not respond during 
this phone call nor when you come to see me nor make 
any response or statement which you believe might 
tend to incriminate you. Should you decide to 
respond, what you say will be used by the Administration 
in deciding whether or not to file charges. Should you 
decide not to respond, the Administration will decide 
about filing charges on the basis of information avail­
able to it."

Two of the three plaintiffs did make and keep appoint­
ments with the Vice Chancellor prior to the Regents' meeting 
March 6. Each was informed that no response was required 
of him. One was told that the Vice Chancellor's role was 
to serve as liaison between students and the administration. 
The other was told that the Vice Chancellor was nrepared 
to answer questions concerning university procedures.

6



Neither requested a specification of the charges against 
him. Neither made any statement about his conduct on 
February 27 or earlier.

The third student phoned the Vice Chancellor on March 
6 after the Regents had acted, and saw the Vice Chancellor 
on March 6. There was a discussion of what had happened 
at the Regents' meeting and a description of the charge 
contained in the notice of his suspension.

Prior to his suspension by the Regents March 6, none 
of the plaintiffs was furnished with a notice that a meeting 
of the Regents would be held March 6, none was furnished 
with any specification of the charges against him to be con­
sidered by the Regents, none was furnished with a notice 
that any charge against him would be considered by the 
Regents at its March 6 meeting, and none was given an 
opportunity to be heard by the Regents or by an agent 
designated by the Regents for this purpose.

At no time after March 6 was any one of the plaintiffs 
given an opportunity to be heard by the Regents, or by an 
agent designated by them for the purpose, on the question

7



whether his suspension should continue until the Regents 
have acted in his case following the March 19 hearing.

Each of the plaintiffs was suspended from March 6 
to the time of the court's order. The district court 
found that there was no intention upon the part of the 
Regents to reinstate any of them prior to the time at 
which the Regents acted in his case following the March 
19 hearing. (Appendix pp. 6-9). No hearing on the interim 
suspensions was ever held. All the named plaintiffs have now 
either been expelled or have withdrawn from the university.

ARGUMENT
I

THIS COURT LACKS JURISDICTION BECAUSE THE 
GRANTING OF A TEMPORARY RESTRAINING ORDER 

IS NOT APPEALABLE

Title 28, U.S.C., § 1292 (a) (1) provides that the
"courts of appeals shall have jurisdiction of appeals from 
interlocutory orders of the district courts ... granting, 
continuing, modifying, refusing or dissolving injunctions,

8



or refusing to dissolve or modify injunctions." As 
International Products Corporation v. Koons, 325 F.2d 
403 (2nd Cir. 1963) and American Cyanamid Company v.
Lincoln Laboratories, 403 F.2d 486 (7th Cir. 1968), 
authorities cited by appellants on this point indicate, 
it is clear that this statute permits appeals from the 
granting of preliminary injunction even when there remains 
a number of undecided issues or claims in the case. Appel­
lants' reliance upon 28 U.S.C. § 1292 (a) (1) in the instant
case, however, is inapposite for the district court granted 
a temporary restraining order, not a preliminary injunction. 
While it is clear that the granting of a preliminary in­
junction is appealable, it has likewise been long established 
that the granting of a temporary restraining order is not. 
Austin v. Altman, 332 F.2d. 273, 275 (2nd Cir. 1964) . Grant 
v. United States, 282 F.2d 165 (2nd Cir. 1960) ; Pennsylvania 
Motor Truck Association v. Port of Philadelphia Marine Terminal 
Association, 276 F.2d 931 (3rd Cir. 1960); Connell v. Dulien 
Steel Prods Inc. 240 F.2d 414 (5th Cir. 1957) cert denied,
356 U.S. 968; Moore, Federal Practice f 65.07 at 1649 

(2d Ed. 1955).

At every stage both the parties and the court indicated

9



that it was their understanding that the initial order 
sought was a temporary restraining order. Appellees 
did so in their "Motion for Temporary Restraining 
Order" which was attached to the complaint. Defendants 
did so in the series of affidavits they submitted in 
opposition - each headed "Affidavit in Opposition to 
Temporary Restraining Order". The Court did so in its 
interim order of March 13, 1969, and in its opinion and 
order of March 18, 1969 where the Court specifically stated 
that before it was a "motion for a temporary restraining 
order" and that its decision was one involving the "temporary 
restraint" of the defendants. It was only after the court 
granted the "motion for a temporary restraining order" - 
when it became tactically advantageous for them to do so - 
that appellants suddenly altered their terminology, and 
for the first time in the Notice of Appeal referred to the 
order in question as one "granting a preliminary injunction 
Theretofore the question as conceived by appellants and the 
district judge had been whether the court would grant or 
deny a motion for a temporary restraining order. When the 
court decided to grant the order in essentially the terms 
appellees had requested, appellants, through some verbal 
magic, attempted to change the temporary restraining order 
which they cannot appeal into an order granting a preliminary

10



injunction which they can.

Admittedly, mere labels are not determinative of 
whether an order is a temporary restraining order or a 
preliminary injunction. See, Western Union Tel. Co. 
v. U.S. Mexican Trust Co. 221 F. 545, 553 (8th Cir. 1915); 
Dilworth v. Riner, 343 F.2d 226, 229 (5th Cir. 1965) ; but 
certainly, as the Third Circuit has pointed out in Pennsylvania 
Motor Truck Association v . Port of Philadelphia Marine Terminal 
Association, supra, the intention and designation by the trial 
judge must be accorded great weight in making this determination. 
It cannot blithely be assumed that the district court is not 
cognizant of the difference between a temporary restraining 
order and a preliminary injunction, and that the parties and 
the trial judge repeatedly used one phrase when, in fact, 
they meant the other.

In addition to the understanding of the parties and the 
trial judge in determining whether an order is a temporary 
restraining order or preliminary injunction, "courts look 
to such factors as the duration of the order, whether it 
was issued after notice and hearing, and the type of showing 
made in order to obtain the order". 3 Barron and Holtzoff, 
Federal Practice and Procedure, § 1440 at 509 (Wright ed.

1958^ .
11



It certainly must have been contemplated that the 
instant order was to be one of short duration. It was 
issued on March 18, 1969, readmitting appellees to the 
University effective at noon the following day, March 19,
1969, the same day appellees were scheduled to have their 
expulsion hearing. It even permitted University authorities 
to suspend appellees temporarily during this interval, 
as long as the procedures followed complied with the re­
quirements of due process.

The hearing held in the district court was after notice 
to defendants, but this fact, in and of itself, does not 
make a preliminary injunction out of what would otherwise 
be a temporary restraining order. Rule 65 (b) Federal Rules 
of Civil Procedure requires that, whenever possible, efforts 
will be made to notify the adverse party, before the court 
hears and determines an application for a temporary restraining 
order.

The nature and scope of that hearing is significant for 
it was of a decidedly limited character. The court heard oral 
presentations from counsel for both sides after the submission 
of affidavits. At no point was there a hearing with witnesses 
giving testimony and opposing counsel cross-examining them

12



although numerous allegations of fact contained in the 
affidavits were in dispute. If this court were to accept 
appellants' present attempt to convert the hearing below 
into a hearing on a preliminary injunction appellees would 
be severely prejudiced, for they were seeking only a 
temporary restraining order and had prepared and presented 
their application accordingly. Had appellees been aware 
that further proof would not have been taken prior to a 
decision on a preliminary injunction and appeal they might 
have supplied additional or alternative proof. There is, 
therefore, a basic difficulty in equating a temporary re­
straining order issued after notice with a preliminary 
injunction, for the type of showing required to obtain a 
restraining order of brief duration may be different from 
the type needed to obtain a preliminary injunction. See 
71 Harvard Law Review 550, at 551-552. Compare Hamilton 
Watch Co. v. Benrus Watch Co., 206 F.2d 738 (2nd Cir. 1953) 
with Brown v. Bernstein, 49 F.Supp. 497 (M.D. Pa. 1943) .

Finally, scrutiny of the text of the order itself 
is instructive as to its true character. The order was 
very limited in scope. It simply restrained the university 
officials from preventing the named plaintiffs from attending 
the university without first observing the requirements of

13



due process. The expulsion hearings for the named plaintiffs 
were scheduled to take place the day following the issuance 
of the order, the same day the order was to take effect.
The court made no attempt to deal with others who were 
similarly situated though they were covered by the allegations 
of the complaint. In fact, the district judge specifically 
reserved the questions of the class action aspects of this 
case. Nor does the order purport to prohibit the defendants 
from engaging in the practices complained of here in the 
future. It does not treat the question of damages or ex­
punging university records. While it is true that the presence 
of all these undecided issues would not prohibit an appeal 
if the order in question were truly a preliminary injunction - 
although their presence suggests that interlocutory appeal is 
premature - the presence of these issues in contrast to the 
narrowness of the order appealed from is a further indication 
that the order is a temporary restraining order which is not 
appealable under 28 U.S.C. § 1292 (a) (1).

This case is still in process. Should appellees ultimately 
prevail it will reach the stage where defendants may seek review 
of the manner in which the district court has resolved the 
controversy. At this stage, however, the case is in no posture

14



for appellate review. All the relevant factors, especially 
the understanding of the parties and the trial court, in­
dicate that the order from which appellants seek to appeal 
is a temporary restraining order, and not a preliminary in­
junction - as such it is not appealable. The court there­
fore should dismiss this appeal for lack of jurisdiction.

THE ISSUE PRESENTED ON APPEAL REGARDING THE 
ORDER OF MARCH 18, 1969 IS MOOT

II

Appellees have urged (supra pp. 8-15) that the court 
is without jurisdiction because the district court's order 
of March 18, 1969) is not appealable. Should the court be 
of a different view, appellees submit that this appeal must 
be dismissed because the issue presented here for review is 

moot.

The order of March 18, 1969 from which appellants now 
appeal ordered the named plaintiffs reinstated pending their 
expulsion hearing, and restrained the defendants from giving 
the named plaintiffs an interim suspension without the 
minimum procedural safeguards. That expulsion hearing has

15



now been held. The named plaintiffs have all been severed 
from the University. Thus, there is no controversy remaining 
as to the specific issues covered by the terms of the district 
court's order. To be sure, there remain many issues in this 
case yet to be decided —  (a) the question of an injunction 
against carrying out future summary suspensions of the type 
complained of against plaintiffs (should they be readmitted) 
and members of their class; (b) the question of which, if 
any, aspects of this suit may be properly maintained as a 
class action; (c) the question of expunging appellants' 
records; (d) the question of damages, costs and attorneys' 
fees. Members of this court may have views on these questions, 
but as they have not been passed upon by the district court 
they are not presently ripe for judicial review. In due course, 
appellants will have ample opportunity to challenge any ruling 
or statement of law that the district court has made, including 
any on the broad constitutional questions they seek to raise 
in this appeal. However, under the present set of circum­
stances, they are asking for an advisory opinion, as the 
order from which they seek to appeal presents no live question 
for review.

The authorities demonstrate that this is not an appropriate 
stage in the district court's proceedings for appellate inter-

16



vention. Before an appellate court can review a lower 
court's decision the "issue posed should be real and 
substantial and not merely academic or speculative" Fair 
v. Dekle, 367 F.2d 377, 378 (5th Cir. 1966). The issue 
covered by the order from which appellants are attempting 
to appeal is clearly moot because this court cannot be 
asked "to decide arguments after events have put them to 
rest" Doremus v. Board of Education, 342 U.S. 429, 433 
(1952). (Suit to declare invalid state statute providing 
for Bible reading in public schools. Dismissed as moot as 
to minor plaintiff, since she had graduated from the public 
schools before the appeal was taken). See also, Troy State 
University v. Dickey, 402 F. 2d 515 (5th Cir. 1968) .
(Action challenging the state university’s denial of re­
admittance to a student newspaper editor. Case held to 
have become moot because of student's affidavit that he 
did not plan to re-enter the university).

Because of what they view as the "great public importance" 
of the question they pose, appellants insist that this court 
undertake appellate review. It must be evident, however, 
that there are many cases containing questions of great 
public importance in which the Federal courts must decline 
review because some issues have become moot. See Atlantic

17



Seaboard Corp. v. Federal Power Commission, 200 F.2d
796, 797 (4th Cir. 1953).

"[B]road considerations of the appropriate exercise 
of judicial power prevent such determinations unless 
actually compelled by the litigation before the 
Court". Barr v. Mateo, 355 U.S. 171, 172 (1957).

When the district court has passed upon the remaining 
questions in this case, it is clear that the appellants will 
have an opportunity - should they be aggrieved - to obtain 
judicial review. The order appellants seek to appeal from 
embraces no present controversy and for that reason any 
issues contained therein are moot. Therefore, even if this 
court should find that the order in question is appealable, 
this appeal should be dismissed as moot.

Ill

THE DISTRICT COURT HAD JURISDICTION AND DID NOT 
ABUSE ITS DISCRETION IN THE GRANTING OF EQUITABLE

RELIEF

For the first time now on appeal, appellants have 
challenged the district court's jurisdiction. The tardi­
ness of this claim is only exceeded by its insubstantiality. 
Appellants announce the broad rule that "[Fjederal juris­

18



diction depends on whether the plaintiffs were engaged 
in constitutionally protected activity." (Appellants'
Brief p. 17). That they cite no authority for this pro­
position upon which they rely is not surprising because 
there is none. It is elementary that if a complaint 
satisfies the statutory requirements for jurisdiction, 
the court has jurisdiction. "The jurisdiction of the 
federal courts is dependent on the subject matter of the 
action or the status of the parties to it; it is not de­
pendent on the merits of the case". Wright, Federal Courts 
p. 63 (1963). Appellants are attempting to import an 
additional standard which finds support neither in law nor 
reason. Congress has set the requirements for federal 
court jurisdiction under 28 U.S.C. §§ 1343 (3), 1343 (4),
1331 and 1332; appellees' complaint set forth sufficient 
allegations on which to predicate civil rights, federal 
question and diversity jurisdiction; and the district court 
found that jurisdiction was present. Nothing appellants have 
said would indicate the contrary. The cases that appellants 
cite which stand for the proposition that certain kinds of 
conduct are not constitutionally protected (Appellants' Brief 
p. 16) have absolutely no bearing on the question of the 
court's power to hear a claim that there has been a denial

19



of due process.

If unsuccessful in having this court accept this 
novel jurisdictional rule, appellants argue, in the 
alternative, that the order of the district court should 
be reversed because it represents an abuse of discretion 
by the trial court. To support this claim, appellants 
have resorted to the "clean hands" doctrine, maintaining 
that equity should not be invoked because of appellants' 
misdeeds. This argument, of course, assumes that appellants 
had engaged in some misdeeds - an assumption in which the 
court below could not indulge since none was proven, the 
court having before it just a bare allegation. But the 
"clean hands" doctrine is inapplicable for an even more 
fundamental reason. It has long been established that in 
order for the "clean hands" doctrine to apply there must 
be a relation between the wrongful acts and the subject 
matter of the suit. See, Carpenters 1 Union v. Citizens 
Committee, 333 111. 225, 164NE393 (1928); Precision In­
strument Manufacturing Co. v. Automative Maintenance Co.,
324 U.S. 806, reh. denied 325 U.S. 893; Republic Molding 
Corp. v. B.W. Photo Utilities, 319 F. 2d 347 (9th Cir.
1963); 27 Am. Jur. 2d § 142. This suit does not involve

20



the wrongful conduct in which appellants are alleged to 

have engaged. It does involve the procedures by which 

it was to be determined whether they engaged in such 

conduct and what the appropriate penalties, if any, 

should have been. It is an odd doctrine indeed which 

would make the fairness of judicial or administrative 

procedures to which an individual is entitled dependent 

upon the lack of seriousness of the offenses with which 

he is charged - one foreign to our system of justice which 

prides itself on the inviolability of the fairness of the 

process no matter how heinous the alleged offense. Appel­

lants would have us believe that the gravity of the con­

duct in which appellees were alleged to have engaged 

somehow diminished the obligation of the state to act in 

a manner consonant with the requirements of due process.

No matter what conduct appellees might have engaged in, 

appellants remained under a continuing duty mandated by the 

due process clause of the Fourteenth Amendment to observe 

the Constitutional requirements of fairness. Any claim 

plaintiffs may have with regard to the fairness of the 

procedures followed by the university officials existed 

independent of any claims related to their alleged misdeeds 

and the application of the "clean hands" doctrine thereto.

21



IV

THE SUMMARY SUSPENSION OF PLAINTIFFS VIOLATED DUE
PROCESS

Appellees do not believe that the court should reach 
the merits on this appeal, but should the court decide 
otherwise, appellees urge affirmance as we submit the 
case below holding that the summary suspension of appellees 
violated their due process rights was correctly decided.

"Whenever a governmental body acts so as to injure 
an individual, the Constitution requires that the act be 
consonant with due process of law." Dixon v. Alabama 
State Board of Education, 294 F.2d 150, 155 (5th Cir.
1961} cert, denied, 360 U.S. 930. Although "[T]he 
minimum procedural requirements necessary to satisfy 
due process depends upon the circumstances and the inter­
ests of the parties involved," ibid., there should at least 
be notice and an opportunity to be heard before a state body 
imposes a serious sanction. Anderson National Bank v. 
Lockett, 321 U.S. 233 (1944); In Re Oliver, 333 U.S. 257, 273 
(1947). "Many controversies have raged about the cryptic 
and abstract words of the Due Process Clause but there can 
be no doubt that at a minimum they require that deprivation

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of life, liberty or property by adjudication be preceded 
by notice and opportunity for hearing appropriate to the 
nature of the case." Mullane v. Central Hanover Trust Co. 
339 U.S. 306, 313 (1950). The "primary sense" of the term 
"due process of law" is "an opportunity to be heard and to 
defend a substantive right." Brinkerhoff - Faris Trust and 
Savings Co. v. Hill, 281 U.S. 673, 678 (1930).

It has been a proposition of many years standing in 
our law that a student at a state-supported school could 
not be expelled or suspended for a substantial interval 
without prior specification of charges, notice and an 
opportunity to be heard. See, e.g., Dixon v. Alabama 
State Board of Education., supra; Knight v. State Board 
of Education, 200 F.Supp. 174 (M.D. Tenn. 1961); Woods 
v. Wright, 334 F.2d. 369 (5th Cir. 1964); Schiff v.
Hannah, 282 F.Supp. 381 (W.D. Mich. 1966) (en banc);
Esteban v. Central Mo. State College, 277 F.Supp. 649 
(W.D. Mo. 1967); Moore v. Student Affairs Comm of Troy 
State University; 284 F.Supp. 725 (M.D. Alabama 1968) ; 
Greene v. Howard University, 271 F.Supp. 609 (D.D.C.1967) ; 
Madera v. Board of Education, 267 F.Supp. 356 (S.D.N.Y.
1967), rev'd on other grounds 386 F.2d 778 (2nd Cir. 1967),

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cerjt. denied, 390 U.S. 1028 (1968) . Wasson v. Trowbridge,
382 F.2d 807 (2nd Cir. 1967); Wright v. Texas Southern 
University, 392 F.2d 728 (5th Cir. 1968). This is a firmly 
established legal principle which presently admits of no 
doubt. It is the principle upon which the court below 
relied in holding that prior to their extended suspension, 
plaintiffs were entitled to notice, specification of charges 
and an opportunity to be heard. Indeed, as the district 
court pointed out, appellants do not contest this principle, 
they only wish to append an exception to it which would 
sustain their action with regard to the suspension of each 
of the appellees even though there had not been specification 
of charges, notice of hearing or hearings. This because, 
in the University's view, appellees continued presence on 
campus would have endangered persons and property on the 
campus. 297 F.Supp. at 419.

The district court did not reject perceived danger as 
a relevant consideration or indicate that it could not be 
made the basis for an interim suspension pending a final 
disciplinary hearing. It merely held that the University 
could not take such action without complying with what the 
constitution mandates by way of due process. In this conn-

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ection, the district court adopted a flexible approach 
which plainly authorizes the appellants to act when faced
with circumstances where immediate action is necessary.
The Court held that " [A]n interim suspension may not be 
imposed without a prior preliminary hearing, unless it 
can be shown that it is impossible or unreasonably difficult 
to accord it prior to an interim suspension," 297 F.Supp. 
at 420 (emphasis supplied). This holding represents a bal­
ancing of the disparate interests, and we would submit an 
admirable appreciation of the varying content of the con­
cept of due process under varying circumstances.

That the practical consequences of this type of sus­
pension are severe is not to be doubted. Appellees were 
to be out of school at least 13 days prior to.a disciplinary 
hearing before a hearing agent, after which they were to be 
subjected to what was an indefinite and what might have been 
an extended period of delay before the Regents passed upon the 
findings of the hearing agent. The student who has his right 
to attend the University withdrawn for all these weeks suffers 
an injury which might prove needless if he were given some 
measure of due process prior to his suspension. The fact 
that he may have been mistakenly identified as having en-

25



gaged in the alleged misconduct, that he might have a 
fully documented alibi, that he might be able to show 
provocation by way of explanation for the conduct he 
engaged in are all to no avail if the University denies 
him the proper forum and procedural safeguards for airing 
such facts. Here appellants knew in advance that the March 
6 meeting of the Regents was to take place and that its 
purpose was to deal with "discipline of students" (Appendix 
p. 42) —  appellees included. It would have been an easy 
task to inform plaintiffs of the meeting, tell them of the 
charges the Regents were considering lodging against them, 
and give them an opportunity to be heard, cf_. Carroll v. 
Princess Ann County, 393 U.S. 175 (1968); Kelly v. Wyman,
294 F.Supp. 893 (S.D.N.Y. 1968). Instead, the meeting was 
held without any attempt to give the students notice, specif­
ication of charges or an opportunity to be heard. At the 
meeting the Regents, by resolution, suspended the aopellees 
"immediately" 297 F.Supp at 418. The resolution cited as 
its basis the fact that the University administration had 
shown that it had "reasonable grounds to cause us to believe" 
that the appellees had participated in causing earlier campus 
disruptions. Surely the district court had behind it the 
full weight of centuries of our legal development when it

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refused to permit this sort of ex parte showing to be made 
the basis for the imposition of serious sanctions. This 
egregious lack of fairness in the process could easily 
have been avoided by the University. The Court below 
explicitly found that no reason had been shown why it 
was impossible or unreasonably difficult to give the 
plaintiffs a hearing prior to their March 6 suspension,
297 F.Supp. at 421. Principles of fundamental fairness 
required it.

The Regents even failed to abide by the standards 
it had set down for the University administration to 
follow in matters of student discipline. Section 5 (b)
(1) of the By-Laws of the Regents requires that the Uni­
versity administration provide the student with "the right 
to immediate hearing on the limited question of whether 
suspension should remain in effect until the full hearing 
is completed". (Appendix p.13). See also, "Joint Statement 
on Rights and Freedoms of Students" 53 A.A.U.P. Bull. 365, 
368 (1967) ; Marzette v. McPhee, 294 F.Supp. 562 (1968) .
Most important, of course, is that Regents' action was 
violative not only of its own standards, but, when taken 
by the governing body of a public institution, of the re­
quirements of the United States Constitution as well.

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In periods of increased tension and law violation 
there is always the danger that persons in power will 
overreact and perform in a manner that in less turbulent 
times most would agree was unworthy or, at least, un­
necessary. It is most important that at such times 
we do not compromise the individual citizen's rights 
or our long-standing dedication to fair procedures. If 
courts fail to insist on fair procedures at such times, 
not only does the individual lose —  our whole system 
loses. It is bad enough when an individual refuses to 
obey the law, it is so much morse when the state does. 
Scrupulous observance of the law by those in power helps 
to reinforce it and command respect for it. When the 
agencies of government forget these principles, it is 
the duty of the courts to remind them.

CONCLUSION

For the foregoing reasons this Court should either 
dismiss this appeal for want of jurisdiction, or dismiss

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this appeal on the grounds of mootness, or affirm the 
order of the district court below.

Respectfully submitted,

PERCY L. JULIAN, JR.
330 East Wilson Street 
Madison, Wisconsin

JACK GREENBERG 
MICHAEL MELTSNER 
HAYWOOD BURNS

10 Columbus Circle 
New York, New York 10019

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