Anthony Herman v. University of South Carolina , 457 F.2d 902 ( 1972 )

PER CURIAM:

The district court denied plaintiff, formerly a student at the University of South Carolina, damages and reinstatement in redress of his expulsion as a student for having taken part in a “sit-in” at the student union in protest of the national war policy in the far east. For the reasons sufficiently stated by the district judge, we agree with his conclusions and, hence, we affirm.

At the same time, we were told in argument that after instituting suit plaintiff sought reinstatement and was denied it. No formal reasons for the denial were expressed, but one member of the committee considering the application stated that plaintiff could not obtain favorable consideration while this suit was pending. We were also told that most of the students permanently expelled as a result of the incident have since been reinstated, including the plaintiff in Bistrick v. University of South Carolina, 324 F.Supp. 942 (D.S.C.1971), whose participation in the incident was found by the district court to be “practically identical” to that of the plaintiff in this case, but who did not appeal from the denial of relief to him. We note also that as stated in the opinion of the district court there was “no contention that the plaintiff was personally involved in removing the custodians and employees from the building or attempting to fasten the doors.” None is made to us. Rather, the sole case against plaintiff was that “he was seated on the floor in the lobby of the building .... Upon being ordered to leave the building by the Assistant Dean of Men . . . plaintiff declined to do so [even upon threat of suspension].”

Although the representations of events occurring subsequent to the institution of suit were uncontroverted in the argument before us, we do not feel at liberty to dispose of the case on the basis of them. It suffices to say that if others, whose participation in the events leading to disciplinary action was not less culpable than that of plaintiff, were forgiven and reinstated, we would see a substantial denial of equal protection of the laws if plaintiff were not afforded similar treatment. If the facts are as represented, we express the hope that there will be no need for further judicial proceedings.

Affirmed.