George Robert Boykins, Etc., United States of America, Plaintiff-Intervenor v. Fairfield Board of Education , 492 F.2d 697 ( 1974 )

GEE, Circuit Judge;

As the Fairfield, Alabama, school case comes before us for the seventh time,¹ the great issúes of segregation and integration which were, for our circuit, largely fought out on this very field² 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 disappeared. Pi-cayunish 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 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 commenced, 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 discrimination was shown.

2. Prohibit school authorities from allowing white students to leave campus for lunch since it was generally more convenient 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.

11. Order teachers at the Fairfield School System to refrain 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 enforcement 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 disruptive 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 success. School was therefore closed in the middle of the morning and all students sent home.

Twenty-one students were subsequently sent notices of suspension from school for their participation in the disruptions of November 10 and were also informed that individual hearings 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 readmitted 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, difficulty 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 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 whatever 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 procedures were uniformly followed in conducting the Board’s hearings.

Appellants principally complain that much of the evidence 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.

As 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 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.

The requirements of due process are sufficiently flexible 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 imaginable 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 “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 Education. 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. Student 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.

Complaint is also made of the severity of the punishment 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. 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 substantial evidence, are entitled to great weight. . . . ”

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.

Finally, appellants complain of the refusal of the district 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.

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).

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.

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]lie standards of procedural due process are not wooden absolutes. 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).