JONES v. BOARD OF EDUCATION

Print this transcript Transcript: 

Argument of Robert H. Roberts

Chief Justice Warren E. Burger: The state board of education, where we left off yesterday afternoon.

Mr. Robert H. Roberts: Mr. Chief Justice and may it please the Court.

I will conclude argument for the respondents in this manner.

I would like to call the Court's attention to an article written by Professor Charles Allen Wright in connection with speech to be delivered on Vanderbilt University campus on October 1969 entitled “The Constitution on the Campus.”

This is one of the Oliver Womble Holm series and I think that it is one of the best written articles I have ever read and I recommend it to the Court if they haven't already seen it.

In it though, Professor Wright basically wound up by saying that expression can be restrictive, if at any time, if material substantially interferes with a normal procedures of the university or with the wraps of other.

Now, it is our contention that the basic issue involved here is just the action that this student has been accused and found guilty of committing based primarily under his First Amendment rights.

Yesterday --

Justice John M. Harlan: There were additional findings of the violation for regulations?

Mr. Robert H. Roberts: Yes, Your Honor.

There was a finding that he had committed a misdemeanor and found guilty in court in violation of the student handbook which had been a specific charge against him in addition.

They also found that he lied to the committee while before ti and openly before it and I might say this, it is not only just, he just told the president of the effect that he was lying in front of this outstanding faculty group and other students and even the press was present when this happened which compounded the disrespect that he showed to president on this occasion.

Yesterday, I had the feeling that there was some question in the mind of perhaps Associate Justice Marshall in regard to why this action on the leafleting or the boycott literature didn't result in any kind of a serious incident.

I didn't called the Court's attention to this but I would like to do it this time.

Mr. Jones at the time that he passed out this leaflet had already been temporarily suspended from school.

He was not on the campus at that time as a student.

When he passed out this literature he was awaiting his hearing to see whether or not he would be admitted in the full term or not.

This literature was passed out on August 18, 1967 which according to the calendar which you have in the appendix in the student handbook part of it which begins on page 175 of the joint appendix, a calendar of the school.

Here, you'll find that this was the last day of final examinations for the last term of the summer quarter.

When he did this, the baccalaureate services follow that by two days and school was out then until the following term started.

That is the reason there was no more commotion following it.

However, I direct your attention to the fact that this was followed -- itself following by just a couple of weeks or so, arrived on the campus and tensions were high.

Now admittedly, the faculty hasn't in it's findings written out that as a result of this literature been passed out on the final examination day that John Smith came to him and said, “Well, that bothers me and I couldn't correctly answer one of the questions on the examination” or anything like that, but they found it as a matter of their interpretation.

They were there on the campus.

We're not talking about some rural constable or something like that that might be found in my home county of Pickett.

We're talking about nine of the outstanding members of the faculty on Tennessee State University's campus.

We're talking about the vice president Maritus (ph), who was the Chairman of the Faculty Advisory Committee with 30 some years of experience there as a school administrator.

We are talking about Dr. J.A. Payne who acted because of Dr. Boswell's poor health as the presiding officer over this faculty advisory meeting with the great many years of experience on the campus and as being the students.

We're talking about the dean of women and the dean of men.

School administrators, practically all if not all of them hold doctorate degrees and had the combined experience of well and in excess of 100 years there on the campus, that's who we're talking about, substituting the judgment on as to what --

Justice John M. Harlan: Supposing this temperate document that had been passed around speaks exactly about diversity.

What would you say about that?

Mr. Robert H. Roberts: I should call the events --

Justice John M. Harlan: -- still a justice on the [Inaudible]

Mr. Robert H. Roberts: Yes sir and I think it would be all together a different situation.

I think you could perhaps of even gone across the street a little ways to centennial park and got up on a bench and maybe made a speech on it and it would have been somewhat different.

Here, it is calculated to do one thing, calls unrest and tried to prevail his ideas and his desires on to the student body there.

He had already been suspended.

He -- it wasn't a matter for him not to register.

He was trying to ask everybody else to join with him because his conduct had caused him to be suspended where he wasn't permitted to continue during the summer quarter and was called on them to do so.

Now as to the type of thing that was in this makes very important.

There was really more to it than just boycott.

So far as it being designed to create unrest and we got to keep in mind now that this was fall on a period of great deal of disturbance on the campus where property was destroyed and people were injured.

Some of the things that he says for example anything that give the puppets, I'm talking about school administrators now.

That's a reference that he makes to them.

He calls them puppets throughout this.

I want to adapt civilized tactics used by the man and that sort of thing.

Then he goes on with words like “does the campus will become a concentration camp controlled and contained by the legislation of the raciest dogs' downtown.”

The acts of the puppet administrators here at the end referring to these people for whom he had already been advised that he was going and have to come and clearance have with before he could be re-enrolled.

The Billy clubs and guns of Nashville's raciest cops and ultimately the gestapo tactics of the honorable National Guard whose pale faces have already been seen in Memphis, Nashville.

We as intelligent black students will not be guarded by trampling parialist idiots who call themselves administrators.

Now that's what he's saying about the school administrators.

He said earlier that he came down to Tennessee to go to school because he investigate and found that it was a great school and he wanted to go down there.

Yet in his first year there an 18-year-old boy, he conducts himself in such a way and has the all that has come out with something like this and talking this very school administrators whom he had chosen to go to earn an education.

And he closed it then with this article and counts and brought and bribed heavy counts.

Cast your vote for student power.

Boycott registration, September 23 and for as long as the puppet administration refuses to acknowledge that this is our university.

Justice Hugo L. Black: What do you mean by the boycott part?

Mr. Robert H. Roberts: Registration.

He was -- they asked them not to come in and register for classes and just to freeze the university so to speak and to bring it to a complete start, that would be the effect of it.

Justice Potter Stewart: And when was this --

Mr. Robert H. Roberts: This happened on the --

Justice Potter Stewart: -- that they handed out this?

Mr. Robert H. Roberts: On August the 18 to which was the last day of the --

Justice Potter Stewart: Summer term.

Mr. Robert H. Roberts: -- summer term, yes sir, the -- they have two terms during the summer there and operate on the quarter hour basis.

Justice John M. Harlan: Suppose in the -- they have forgotten to urge these boys and girls not to register, just used the childish, foolish, silly names but respectable people, what would you say about that?

Mr. Robert H. Roberts: May it please the Court, I think that it was to be serious enough about urging the boycott, but you can't separate it.

It was all one article.

He did all of it for design for one purpose that the administrators found that it was for the purpose of disrupting the school, and that didn't entitle him to remain on the campus any longer as a result of it.

Now, if the judicial branch is going to substitute its judgment for people of a character that I have described of this Faculty Advisory Committee, on this question of fact and really it is a question of fact of whether or not these things, these acts committed were tapped that would be disruptive on the school campus or were just playing free expression or not, and they found otherwise.

Now if we're going to get into this field, where are we going to stop?

Wouldn't the next logical place be to examine the examination papers given to a student and the time of whether the professor you've given him a passing mark or not?

After all, you can effectively expel in that way.

If he doesn't, then any practical any university in the country if he doesn't make his grades, he's not entitled to enroll the next quarter.

You could eliminate him in that manner.

I just respectfully urge the Court to give some support and some credit to these men of outstanding ability and making the determination that it involves a factual matter and if you do so, I feel that the Court will affirm the action in it and I thank you for your kind attention.

Chief Justice Warren E. Burger: Mr. Boult, you have about nine minutes left.

Argument of Reber F. Boult Jr.

Mr. Reber F. Boult Jr.: Yes, Your Honor.

Justice Thurgood Marshall: [Inaudible]

Mr. Reber F. Boult Jr.: Mr. Justice Marshall, if those two convictions are to be considered, we have to reopen the entire disciplinary procedures.

Justice Thurgood Marshall: Is it in the record, any place?

Mr. Reber F. Boult Jr.: They are mentioned at several places in the record Your Honor, page 48 for example and various other places.

The sequence on that --

Justice Thurgood Marshall: If it is to be un-contradicted in the record?

Mr. Reber F. Boult Jr.: Certainly.

He was convicted and it was on appeal at the time the hearing was going on there.

Justice Thurgood Marshall: And it was a part of the charge against it?

Mr. Reber F. Boult Jr.: It was a part of the charge against it.

Justice Thurgood Marshall: And it wasn't answered?

Mr. Reber F. Boult Jr.: There was no conviction so to speak of the Faculty Advisory Committee on these charges.

Justice Thurgood Marshall: Well, it's not sufficient to discipline them, to be convicted in the criminal court?

Mr. Reber F. Boult Jr.: I don't think the issues in the case Your Honor, I doubt it.

If I would to argue that point, if I thought the point were in the case --

Justice Thurgood Marshall: Does it violate these rules found on pages 75 or not?

Mr. Reber F. Boult Jr.: The rule on being convicted of being the city to council leads to federal offense.

I don't think it does because it was not filed, it was on appeal.

Justice Thurgood Marshall: It was not found?

Mr. Reber F. Boult Jr.: It was not, the conviction was not found.

The cases were on appeal at the time of these procedures.

Justice Thurgood Marshall: But that doesn't appear in the record.

Mr. Reber F. Boult Jr.: Yes it does, I believe Your Honor at page 48.

Justice Hugo L. Black: What is happened since?

Mr. Reber F. Boult Jr.: I don't know Your Honor.

Justice Hugo L. Black: You don't know?

Mr. Reber F. Boult Jr.: No I don't -- see this issue has really not been in the case throughout any of the lower courts because the Faculty Advisory Committee exonerated him on these charges.

He was not dismissed for school for having violated that particular rule.

The Chairman of the committee so testified, the charges make no mention about it.

Chief Justice Warren E. Burger: But that doesn't means they ignored it, that means they didn't -- they ignored it.

They didn't say they exonerated him on that --

Mr. Reber F. Boult Jr.: Well, they did not dismiss him from school for that charge.

They're up --

Chief Justice Warren E. Burger: -- to have it adequate other examples.

Mr. Reber F. Boult Jr.: Possibly so.

They were half a dozen charges against him and of the three students involved in the whole thing, there were about 18 charges and there were only findings of shall we said guilt on a smaller number of these charges.

We assumed, it has been assumed up to this level always with the case that if Faculty Advisory Committee did not make a finding that a student had done what -- on a particular charge, then, they were not disciplining him for it.

Chief Justice Warren E. Burger: But is the conduct in which these criminal charges developed on the campus or off the campus?

Mr. Reber F. Boult Jr.: Off the campus, totally unrelated to campus.

Chief Justice Warren E. Burger: Do you suggest that he could not be dismissed laying aside the notice fact that he could not be dismissed for conduct off the campus?

Mr. Reber F. Boult Jr.: It depends on the conduct Your Honor.

This particular conduct, I would say not.

Justice Hugo L. Black: What was it?

Mr. Reber F. Boult Jr.: Disorderly conduct.

Justice Hugo L. Black: What was it?

Mr. Reber F. Boult Jr.: As I recall the facts of the case, there are not of record, it was an argument with a police officer, leaves us vagrancy and disorderly conduct.

Justice Hugo L. Black: Just an argument?

Mr. Reber F. Boult Jr.: Just an argument.

He's coming out of his house.

He was well-known around town, was unpopular.

He was arrested on one of these general dragnet laws and I'm talking outside the record because this was -- this point would have developed, had it been in the case at the time but was not.

The vagrancy statute in Tennessee in which he was arrested has since been declared unconstitutional.

And that disorderly conduct statute is similar to the one under consideration by this Court in the case of Gunn versus the University Committee.

So this particular conviction would probably be unconstitutional.

Mr. Roberts says -- he mentioned that the handing out of this leaflet falls around by couple of weeks; that is not true.

He mentioned that Mr. Jones had already been suspended at the time he handed out the offending leaflet.

The suspension was clearly unconstitutional on any of the lower court decisions on student's rights and with no notice, no hearing, no nothing, and ultimately, it was rescinded.

He was suspended on three vague charges, none of which were pressed later on in these proceedings.

Justice Potter Stewart: Now the only findings against this man as I understand appear on page 31, at the bottom of the page 30 and top page 31 of the appendix, is that right?

Mr. Reber F. Boult Jr.: That's correct.

Justice Potter Stewart: Which consist of -- that's well ambiguous, but the only explicit thing is distributing literature, although it's on different occasions to promote unrest on the campus by such actions as distributing literature, designed for that purpose, that's one of the findings and the other is he didn't tell the truth?

Mr. Reber F. Boult Jr.: That's right Your Honor.

In dealing with the case, we have given the benefit of the ambiguity to the university and assume that it was about the literature.

Justice Potter Stewart: Well you --

Mr. Reber F. Boult Jr.: If --

Justice Potter Stewart: -- so far as they given the -- well --

Mr. Reber F. Boult Jr.: If on the other hand --

Justice Potter Stewart: It certainly finds it, it's certainly finds that he did that.

Did he promoted unrest by distributing literature and the ambiguity is whether the findings include other ways in which he promoted unrest.

Mr. Reber F. Boult Jr.: Yes, and if there are other ways we would say that due process has been violated, because the man has not been told what he is being disciplined for?

Justice Potter Stewart: Now he was charged, he was totally charge for including those criminal convictions?

Mr. Reber F. Boult Jr.: Yes, but not convicted, not disciplined for it, not told that he had been found guilty of it.

Justice Hugo L. Black: Are you arguing that a college would not have a right to expel a man if they caught him in an outright falsehood?

Mr. Reber F. Boult Jr.: I don't think that issue is in case Your Honor.

Justice Hugo L. Black: Well, that's what they found him guilty of?

Mr. Reber F. Boult Jr.: They never charged him for telling falsehood.

They never even gave him a chance to say I didn't tell a falsehood.

They just came down one day and said you lied, you're gone.

Chief Justice Warren E. Burger: But if the falsehood is committed as part of the response to other charges, do you mean to suggest they have to start all over and give them some new charges when they -- the very people sitting in the room have heard him commit what they regard as a falsehood?

Mr. Reber F. Boult Jr.: It's just to analogize to the outside world, it would a perjury proceeding.

Chief Justice Warren E. Burger: Well, this isn't a criminal proceeding counsel.

You're trying to equate this to a criminal proceeding with all the constitutional protections of criminal proceeding?

Mr. Reber F. Boult Jr.: Not all Your Honor, I think at that the very least notice an opportunity to defend has been settled ever although this Court has not direct to pass on it, it has been considered to be settled since the Dixon case in 1961 or 1962.

Justice Hugo L. Black: Are you arguing that if a man called up before the board of college administrators, that's a charge, and he delivered and falsifies in their presence on that the charges that they would not have a right to remove him from school?

Mr. Reber F. Boult Jr.: Not at all Mr. Justice Black.

Justice Hugo L. Black: Well, that's what they said here?

Mr. Reber F. Boult Jr.: I'm arguing that if he deliberately -- if he is thought to have deliberately falsified something, they should charge him with that and --

Justice Hugo L. Black: When you talk -- you mean to have to charge him in advance?

Mr. Reber F. Boult Jr.: At least --

Justice Hugo L. Black: The object of the school I would suppose is try to get the students who learn, take part in a regular business and I wouldn't suppose at least in the schools I went to, they were compelled to give me formal charges of anything if they want to get me up and they came to move me without formal charges, I would think.

You don't think so?

Mr. Reber F. Boult Jr.: I don't think so Your Honor.

I don't think the law has been so for the last six great years, although --

Justice Hugo L. Black: What case has held to contrary, I'm just curious?

Mr. Reber F. Boult Jr.: Excuse me?

Justice Hugo L. Black: What case has held to the contrary?

Mr. Reber F. Boult Jr.: Starting with Dixon versus Alabama State Board of Education, Knight versus State Board of Education.

Probably, I would say 30 or 40 disciplinary cases in the meantime ending most recently or more recently was Cagen versus Lincoln Memorial University, Western District of Wisconsin.

Justice John M. Harlan: Any of those in this Court?

Mr. Reber F. Boult Jr.: None of those in this Court Your Honor.

A number of them approved in a footnote in Tinker, cited approvingly in the footnote in Tinker.

Justice William J. Brennan: May I ask if that sentence of 31 is at the hearing, he demonstrated this indifference to the two by denying that he passed up such literature despite positive statements by cafeteria personal and the president of the university.

Maybe he'd done so and my question is did the cafeteria personnel and the president of the university testify at his hearing in his presence that he had done so?

Mr. Reber F. Boult Jr.: The cafeteria worker testified at his hearing in his presence --

Justice William J. Brennan: Was the cafeteria worker -- was he represented by counsel at the hearing?

Mr. Reber F. Boult Jr.: Mr. Jones?

Justice William J. Brennan: Yes.

Mr. Reber F. Boult Jr.: Yes.

Justice William J. Brennan: And with that witness from the cafeteria cross examined?

Mr. Reber F. Boult Jr.: Yes, and he was brought out that she was testifying that the leaflet was handed out three months before it was prepared, so that the testimony was rendered wholly incredible.

Justice William J. Brennan: What about the president of the university, he testified at his hearing?

Mr. Reber F. Boult Jr.: He testified.

Justice William J. Brennan: And was he cross examined?

Mr. Reber F. Boult Jr.: He was cross examined.

It appears in the record at page 154.

Justice William J. Brennan: Well, then I don't quite understand your point that the charge was not or the fact of his lying or allegation that he would have lied.

As I gather, your point is that that was not a basis for the discipline that was imposed.

Mr. Reber F. Boult Jr.: He had never -- it was not a basis for the discipline to anyone's knowledge until the findings came out some 10 days after period.

Justice William J. Brennan: Well was surely, he must have known that the hearing itself that the issue of his veracity was in the case?

Mr. Reber F. Boult Jr.: Your Honor, the next event at the hearing after the president testified was Mr. Jones' testimony.

His testimony contradicted that of the president and it simply Mr. Jones, we presumed thought he was telling the truth.

He asserted --

Chief Justice Warren E. Burger: Do you want us to reexamine the issue of credibility in this Court?

Mr. Reber F. Boult Jr.: I don't think it's all necessary Your Honor.

I think every examination of credibility --

Justice William J. Brennan: Yes, but the finding -- the finding of the committee was that we have no doubt that the student did not tell the truth.

So, as between his testimony and that of the president and the cafeteria worker, at least this committee resolved the question against the Jones, didn't they?

Mr. Reber F. Boult Jr.: And when the -- yes, and when the question is --

Justice William J. Brennan: And you suggest that was not a basis for its action in imposing discipline?

Mr. Reber F. Boult Jr.: I don't think a man can be disciplined for defending himself.

Chief Justice Warren E. Burger: You mean he's got a license to lie in his defense with impunity, could that be the essence?

Mr. Reber F. Boult Jr.: The essence is if he's accused of lying, he should have the chance to prove that whether he was or not.

Chief Justice Warren E. Burger: That's the new proceeding you think like a perjury proceeding in the criminals case.

Mr. Reber F. Boult Jr.: I think so, Your Honor.

Justice Hugo L. Black: What kind of school is it?

Mr. Reber F. Boult Jr.: It's a state university for Negroes.

Justice Hugo L. Black: State what?

Mr. Reber F. Boult Jr.: A state university for Negroes since --

Justice Hugo L. Black: How many people are on it?

Mr. Reber F. Boult Jr.: By terms of the --

Justice Hugo L. Black: Are the instructors colored or white?

Mr. Reber F. Boult Jr.: Largely, roughly 80% Negro I think, it has since been put under desegregation plan.

Justice Hugo L. Black: What was the president of the school who testified?

Mr. Reber F. Boult Jr.: He was Negro.

Chief Justice Warren E. Burger: Thank you for your submission.

The case is submitted.

Print this transcript Transcript: 

Argument of Reber F. Boult, Jr.

Chief Justice Warren E. Burger: Number 731, Jones against the State Board of Education of Tennessee.

Mr. Boult you may precede whenever you're ready.

Mr. Reber F. Boult, Jr.: Mr. Chief Justice, Mr. Associate Justices.

This case concerns a college student, not a school child, a college student, who was dismissed from State University for handing out one leaflet on the campus not in or about any classroom.

The issues break down into four.

The regulations involved prohibit disrespect for authority and any other conduct requiring severe discipline.

We contend that these are void for vagueness and over over breadth, primarily our First Amendment contention, the Fourteenth Amendment due process notice is also subsumed in the question.

Next, we contend simply that they are void as applied, you cannot outlaw the distribution of literature or more specific to this case put somebody out of school for it.

Justice William O. Douglas: As I understand this record, there were six students who were dismissed or --

Mr. Reber F. Boult, Jr.: Three in this package Your Honor.

Justice William O. Douglas: Yes.

What happened to the other two?

Mr. Reber F. Boult, Jr.: Certiorari was denied as to the other two.

Justice William O. Douglas: So, we only have this one student in this one case?

Mr. Reber F. Boult, Jr.: Yes Mr. Justice Douglas.

The three -- the four issues, three of the four issues were identical to all three petitioners.

The factual issue varied as to each of the three.

Justice William J. Brennan: If we agree with you, then this distribution of leaflets [Inaudible] we have to reach the others, they don't do it.

Mr. Reber F. Boult, Jr.: You do not have to Your Honor.

In some cases, it's done for example Auburn v. Laurie (ph) held the Georgia statute both -- unconstitutional both on its face and as applied.

There is no choice between the two issues -- between the two approaches on --

Justice William J. Brennan: Oh, I'm thinking particularly on the issue that you -- I say you point to the vagueness, regulations whether we have to reach that if we in any event a conduct conduct is [Inaudible].

Mr. Reber F. Boult, Jr.: That's right Your Honor.

I would suggest that in the way the First Amendment litigation is going nowadays, so many Dombrowski type actions, it -- the first point of reference is more often the facial unconstitutionality rather than the applicatory.

Justice Byron R. White: Is the link that you would turn with the distributing the representation for this --

Mr. Reber F. Boult, Jr.: Yes.

It's plaintiff's exhibit six which appears at page 175 of the record.

And the other two issues involved are due process issues, one having to do with the composition of panel and its conduct.

In fact, the advisory committee that is the University disciplinary committee, its confusion of functions being essentially everything and therefore inherently biased, presumptively biased.

And I think in this case also biased as a matter of proof.

And fourth, procedural due process time and type of notice and in fact that a new contention was brought in at the hearing, they found without ever bringing it up at the hearing, the hearing of the -- in fact, the advisory committee's findings said that the student had not told the truth at the hearing, of course, he never had the chance to rebut this.

The facts on the leafleting issue are very brief.

He handed it.

He was found to have handed out, that's plaintiff's exhibit six although there is considerable doubt whether he actually did hand it out or not, hand it to the president of the university.

The president was the only solid witness on this point.

One other witness testified that she saw him hand it out in the cafeteria.

However, she testified that she saw him do this some two, three or four months before the leaflet was prepared.

So, we assumed that there is only witness against him, the president of the university and the president incidentally only testified that he received one personally.

He did not see it hand it to anyone else.

Jones himself mentioned that he offered one to the president of the student body, who didn't want it.

Justice Potter Stewart: This plaintiff's exhibit six it's supposed to be on page 175 of this appendix here, this pagination is a bit confusing to me at least.

Mr. Reber F. Boult, Jr.: The confusion of the pagination I believe Your Honor I suppose from the inclusion in the appendix of the student handbook --

Justice Potter Stewart: Yes.

Mr. Reber F. Boult, Jr.: -- which runs from a 177 to a 178, but takes some seventy odd pages to do it.

Justice Potter Stewart: Yes, I see.

I think I now have this.

It's on page -- well, the 175 marked in the upper right hand corner?

Mr. Reber F. Boult, Jr.: Upper right hand corner yes sir --

Justice Potter Stewart: Getting in the earlier to the civil rights movement.

Mr. Reber F. Boult, Jr.: Yes Your Honor.

Justice Potter Stewart: Thank you.

Mr. Reber F. Boult, Jr.: Also at the disciplinary hearing, there was no evidence presented whatsoever of disruption of the campus, eminent disruption, proposed disruption, suspicion to disruption, possible disruption, none, it was just not coming for it.

At the hearing in the District Court, there was no evidence of actual disruption.

The only evidence of possible or prospective disruption was the president of the university is, you know to use the phrase vague and undifferentiated fear just been taken.

He referred that as inflammatory, get students all stirred up, talking about other things.

Oh, there was one other bit of testimony on that, the Dean of Students objected that the students received the leaflet as they're walking across the campus, they would stop and read it.

And the case, the disciplinary action was not taken until at least one month after the leaflet was handed out, so that this is not a case where we really need to rely on forecasts.

The idea of whether the -- on first issue, whether the void for vagueness doctrine should apply on the campus, I believe is aptly covered on the brief.

I will only mention here that it just seemed inconceivable that it shouldn't.

It seems much more reasonable to me to apply it there where you got the people thinking about things, erudite, literally, scholarly, talented, to write rules than in the small towns that are held so rigidly to First Amendment standards as specificity in drafting their ordinances.

As to what the standard might be, I think the same approach as was taken in Dombrowski v. Pfister.

Dombrowski referred to the loyalty oath cases as setting forth an appropriate standard for other contexts.

This is really not much of a different context though because we're still on the campus, at least not that much of a different context.

Chief Justice Warren E. Burger: But aren't these regulations in a different category?

They're provided for an institution of learning, at least don't have the stature or status of the law, statute or city ordinance?

Mr. Reber F. Boult, Jr.: They have considerably greater effect on those who must live by them than say it's on the conduct statute which --

Chief Justice Warren E. Burger: But on the other hand, the people who were doing the drafting at least at the time and in the context in which they were originally drafting were probably proceeding on the assumption that these students were coming to these institutions to study and to learn, and they didn't give them perhaps the kind of detailed attention they would give them if they were rewriting them today?

Mr. Reber F. Boult, Jr.: Your Honor, they -- I would hope they would give them more detailed attention if they're rewriting them today.

This hope will be one result of this case.

The regulations were revised every year though.

There were quite current at the time in 1967 and some of the regulations involved on the procedures followed by the disciplinary committee had been rewritten that very year.

The regulations were rewritten immediately after this case was brought.

I do not know what the result is; perhaps the opposing counsel can help us on that.

And whether we're talking about the facial or applicatory constitutionality of this situation, I think the case does have to be considered in light of what the university is first and it is considerably more than just a group of scholars and learners and second, in light of what is happening in universities today and as obviously, there is much unrest.

Various authorities have attributed this to the failure to extend constitutional rights in the universities.

Justice William O. Douglas: Is the leaflet that is in controversy on -- printed on page 175 of the appendix?

Mr. Reber F. Boult, Jr.: Yes, Your Honor.

And I think we should also consider that this university, Tennessee State University as is true with so many of the smaller universities, state universities around the nation, trains a lot of teachers.

And as this Court has recognized for many years, in the McLaurin v. Oklahoma, the training someone to be a leader and trainer of others.

I rather say that they're educating someone to be a leader and educator of others, but I think it's more accurately stated the first way.

And further that those who will come under his guidance and influence must be directly effected by the education he receives.

Education that the students of Tennessee State University are receiving is not one calculated to make things sensitive to the demands of the Bill of Rights.

I think this statement is accurate with regard to other state universities, like these another one before the Court right now in the record of Norton versus Disciplinary Committee of East Tennessee State University, petition for certiorari filed approximately a month ago.

And it's our position that the full First Amendment canopy of rights should apply, in fact, must apply to students.

It has, as many student case, in this case, a college student case on his rights in this Court for many years, I think it's appropriate in this case to state that henceforth when they come, the issue will be whether or not the First Amendment has been violated and will be treated in the same terms as if it were a non-student case.

The tests under the First Amendment would be quite ample, either for vagueness overbreadth or for the actual activity, ample to deal with problems on the campus and no toe-test of preparing a group for violent or lawless or destructive or disruptive action and stimulant to that action is necessary before speech can be curtailed of the Brandenburg, Whitney, (Inaudible) test eminent lawless action must be there.

Chief Justice Warren E. Burger: Would you say that the standards which you're challenging are not adequate to give warning that language used in the exhibit six about puppet fools and racist dogs and so forth address toward the university authorities is not covered?

Mr. Reber F. Boult, Jr.: In other words that they would be -- that those words would be disrespectful.

Chief Justice Warren E. Burger: You say that that does not give notice that the university would regard that as disrespectful?

Mr. Reber F. Boult, Jr.: I think a direct insult would generally be considered disrespectful.

Now, the First Amendment voidness doctrines do not look to the specific conduct involved where over breadth is involved.

Chief Justice Warren E. Burger: But if we were dealing a libel case under Times and Sullivan, I could understand your argument a little bit better that you -- under Times and Sullivan, you could call the president of the university or the Senator, almost anyone else a racist pig or what not with some considerable impunity, but this is not a libel case.

This is a situation or regulations that were trying to govern conduct, so that civilized people could function in the university complex without friction, without conflict with each other.

Mr. Reber F. Boult, Jr.: I have never observed a university yet in which people functioned without friction, without conflict with each other, but --

Chief Justice Warren E. Burger: Oh, they had existed in the past.

Mr. Reber F. Boult, Jr.: Well, even when I went to and quite times 10 to 15 years ago was there, but more basically, the reason for Times v. Sullivan was the First Amendment and the reason a person under Times v. Sullivan can call one a racist pig or liar or whatever it was is the First Amendment.

And that fact that it was a libel case, simply a fact of the case, as the fact that this is a student case is simply a fact of the case, we're relying on the First Amendment.

Chief Justice Warren E. Burger: Now in this Court, when a lawyer submitted, you've heard the oath many times and you took it yourself.

It's an oath to conduct oneself uprightly and according to law.

Now suppose in the course of an argument, one counsel addressed another as a racist pig, do you think that would be beyond the reach of that rule because that rule is too vague, it's over broad that oath of office, the rule of conduct within the chambers of this Court?

Mr. Reber F. Boult, Jr.: We do -- no and we don't contend and it is not contended generally.

Chief Justice Warren E. Burger: Well, the First Amendment prevails in this room --

Mr. Reber F. Boult, Jr.: Certainly and we do not --

Chief Justice Warren E. Burger: -- and it does.

Mr. Reber F. Boult, Jr.: -- but we're talking about outdoors on the campus.

We're not talking about inside the classroom.

We're not talking about inside the court room.

The First Amendment in its prevalence, in its prevailing does take into account the circumstances.

And if I should do that here, this is quite different from my writing it down and hanging out on the street.

Chief Justice Warren E. Burger: But you couldn't write in a brief without getting into very grave trouble could you in this Court?

Mr. Reber F. Boult, Jr.: I have such a difficult time conceiving myself writing it in the brief. [Attempt to Laughter]

But if the standard rules against scandalous and impertinent matter in pleadings and briefs would apply, and I should think it should be stricken --

Chief Justice Warren E. Burger: But the university can't have a rule like that for the conduct of students on the campus and buildings.

Mr. Reber F. Boult, Jr.: Not any different from say the city could have it on the streets.

We're not talking about inside the classrooms in the same sense that the city when it passes ordinances is not talking about in offices.

Chief Justice Warren E. Burger: But if we disbarred a lawyer for this kind of conduct, that would be a pretty severe penalty, wouldn't it?

Mr. Reber F. Boult, Jr.: Yes.

Chief Justice Warren E. Burger: And I take it you more or less concede that we might to take very severe action against a lawyer who engaged in this kind of utterance?

Mr. Reber F. Boult, Jr.: I really don't know Your Honor.

I would -- my first assumption would be if it will be written, it would be immediately stricken with a rather harsh reprimand.

If it happened orally, I don't know.

And on the third of the issues involved, the composition of the disciplinary committee, the issue illustrates a point that runs throughout the case.

The treatment of the issue in the Court of Appeals, the same court below including one of the same judges on the panel, says several years ago, the case for the American Sinemet case cited in our brief on confusion of functions and presumptive bias, not actual bias, which would seem to apply right down the line here.

It was not even mentioned in opinion, although the issue was amply raised and case cited.

Here, we have a situation where the panel was just these students.

The sole witness for the panel was the reviewing authority with absolutely empower what the panel did, or the only essential witness.

He appointed the panel.

One of the other panel members has strong personal feelings about the person involved, not about the issue, that would not be a disqualifying matter, but about the person involved.

The student personnel committee overlapped with the disciplinary committee, therefore, it had done much investigation.

The Dean of Students, chairman of the committee had compiled a list and investigate it.

In fact, the advisory committee conducted an in-depth investigation itself of the students.

They drew the charges, they counseled the students, it called the witnesses and it presented documentary evidence and did not even follow its own rules as to how the matters should have been handled.

Chief Justice Warren E. Burger: You still have more time left counsel.

Mr. Reber F. Boult, Jr.: I'll save the remaining time for the rebuttal if I may?

Chief Justice Warren E. Burger: Alright.

Argument of Robert H. Roberts

Mr. Robert H. Roberts: Mr. Chief Justice --

Chief Justice Warren E. Burger: Mr. Roberts.

Mr. Robert H. Roberts: -- associate Justices.

I want to first take care a little matter of the reply brief.

It was made in my brief in which it alleged that I had made some erroneous statements.

Only two points that I want to raise in connection to that.

One is to the effect that I have left the impression at least that the leafleting activity that this petitioner has been charged with and found guilty of was connected in some way with the arrival on the campus, Mr. Carmichael when ensuing riot that occurred.

I am wrong about that and I apologize to the Court and to opposing counsel.

There had been a number of leaflets passed out at about this time and some of them before and that some after the riot occurred down the campus in the summer of 1967.

There was one of them for instance that demanded that the administration invite Mr. Carmichael there.

They later did and the riot did result.

However, this particular leaflet which advocated and urged the student body to boycott registration at the school was passed out after the riot had occurred.

Now, the second point that I would make in the reply brief is in regard to the charge against this petitioner of being in violation of city county or state laws.

It is urged here that by the words of Dr. Payne who was the Dean of Students and who presided over these hearings that he agreed that this was not used against the student and the hearings,. The record will not bear Mr. Boult out on that.

I think he has failed to read the entire record in regard to it.

What actually took place, Mr. Hedgepeth on page 12 of the transcript of the proceedings of the FAC hearing made it clear that we were, or the school was relying upon any disorderly conduct or conduct unfitting a student or any that violated the rule of the handbook there at the institution.

Further on and about 70 to 78, there were about eight-full pages where it was developed as to just what Mr. Jones had been convicted of and paid the fine in the Metropolitan Court IV.

So, those are the two points I want to raise on that.

The -- we have made two issues out of the four that the petitioner had.

We feel that there only two things involved, one is the entire matter of the procedure including the due process rights of these petitioners.

As stated earlier, there were five original petitioners, two of them were dismissed at the time of the hearing, I mean charges against them were dismissed.

The other three were found guilty of acts that warranted their suspension.

Now, that's another thing that I want to make clear to the Court and that is the fact that these students were not expelled, they were suspended.

They have not -- this petitioner has not gone back to school and sought readmission since the suspension.

I don't know whether the school would allow him readmittance or not.

His was an out of state student and he came down there and he did things that they felt to be and found to be disruptive.

This one piece of literature tried to impress his will upon the other students, for example and calls them not to register for school and thereby disrupt the entire procedure.

Justice Thurgood Marshall: Is there anything the petitioner did other than to pass out that leaflet which is in there?

Mr. Robert H. Roberts: Yes sir.

One thing else that he did there in connection with the leaflet, he lied about it.

He said that he did not do it despite of the fact that the president of the university says he handed it me one himself right in front of the administration building and he had about 50 of them in his hands when he did it.

Later down in the cafeteria testified that if there was some discrepancy about the date that she claimed that it was passed out, but she said there wasn't any question in her mind but that was the piece of literature was.

She went over and picked it up and read it.

Justice Thurgood Marshall: With the exception of passing out the leaflet and lying about it, that's all?

Mr. Robert H. Roberts: No sir, then the third thing is that he violated the rules of the student handbook and that he was convicted and fined in Metropolitan Court for two charges of disorderly conduct.

Justice Thurgood Marshall: Involving the same thing?

Mr. Robert H. Roberts: Sir, no sir and this didn't have anything to do with --

Justice Thurgood Marshall: For the passing out leaflets?

Mr. Robert H. Roberts: No sir.

Justice Byron R. White: Well, they didn't find that, did they?

The board --

Mr. Robert H. Roberts: Yes sir, they found that he was guilty of conviction or the committee found that Mr. Jones has seized upon opportunity on different occasions to promote unrest on the campus with such actions as distributing literature designed for the purpose -- and then at the hearing, he demonstrate his matter -- over the truth --

Justice Byron R. White: Did you find anything about his conviction?

That was just in the charge?

Mr. Robert H. Roberts: Considering all that matters before this committee, we feel that Mr. Kenneth Jones has violated the rules of conduct, governing students at this end and in the university such an extent that he should be suspended.

Justice Byron R. White: There haven't of been any express finding on anything but the leaflet matter on any specific conduct?

Mr. Robert H. Roberts: No sir, no more than one of the things, specifically in there and was that if he was found to be in violation of any state, county or city or federal law that that is one of the things that has listed as being requiring sever discipline.

Justice Byron R. White: Was the charge about lying about the leaflet?

Mr. Robert H. Roberts: No sir, he hadn't been charged with that of course we insist that he --

Justice William J. Brennan: You don't rest the --

Mr. Robert H. Roberts: Yes sir we do.

Justice Hugo L. Black: How can you if he wasn't charged?

Mr. Robert H. Roberts: For this reason, he -- of course, we think that the notice required for most things wouldn't apply to personal conduct of that kind which he did knowingly.

He had the first notice of anybody that he was going to be made the resolve within himself to tell lie in that committee.

Justice William J. Brennan: My difficultly is I would have supposed that the discipline would have -- a committee would have to rest the discipline on a charge that he had lied about it before you could support the discipline on the basis of his lying about it, wouldn't you?

Mr. Robert H. Roberts: If the Court please, I think it would be somewhat comparable to this.

This morning, you graciously permitted me to practice for this Court.

Part of what you based that on was on the application that I filed.

Suppose that I lied in that application and you brought me in here for a hearing and to determine whether I should have that privilege you gave me revoked and while in here, I openly and blatantly lied --

Justice William J. Brennan: I don't think we do that without making a charge to that effect?

Mr. Robert H. Roberts: Well of course --

Justice William J. Brennan: And then if you came here in defense of that charge and lied again, I expect you have that --

Mr. Robert H. Roberts: Yes sir.

Well of course, I think that it really becomes moot anyway if you'll recall that after this hearing and he certainly had notice at that time about it and was accused of lying to them, we had a full rest court hearing in the US District Court in Middle Tennessee and imagine and Judge Miller agreed of course with the university officials in connection with all of these things that they found against him.

Justice Byron R. White: But do you contend that -- I take it, it is that soliciting or hand billing students not to register, soliciting and hand billing them not to boycott registration is enough of a disruption of university affairs to warrant exclusion from the university?

Mr. Robert H. Roberts: Yes sir, I certainly do.

Now, Mr. Jones claimed that he only passed up some other leaflets, one of them I think was called the black thesis which was more or less philosophical piece of writing.

Now, that wasn't so far as I can see anything in there that would have been disruptive.

But suppose had been able to persuade even a substantial number of these students to refuse to register when the term started, certainly that would disrupt the school --

Justice Thurgood Marshall: Was it -- how many days was it before he distributed these and then he brought up on charges?

Mr. Robert H. Roberts: It was approximately a month-and-a-half.

Justice Thurgood Marshall: And has there been any disruption as a result of it --

Mr. Robert H. Roberts: No.

But they stopped in course.

Justice Thurgood Marshall: That you --

Mr. Robert H. Roberts: -- they didn't permit him to go that summer.

This happened during the summer and they'd already sent him notice that he had not been cleared for attendance here on the summer term of school.

Justice Thurgood Marshall: But he didn't disrupt anything, did he?

Mr. Robert H. Roberts: Those were it didn't turn out that way, but I don't think that you have to wait till the horse is out of the barn before you are allowed to close the door.

Justice Thurgood Marshall: Will you show me on the record where those two convictions are you were talking about, if you don't mind?

Mr. Robert H. Roberts: Yes sir.

The charge itself charged in with him and they readily admitted it and they are on page 70 to 78.

Justice Hugo L. Black: Here's the charge above this --

Mr. Robert H. Roberts: Sir.

Justice Hugo L. Black: And your record where is the charge against him printed in the record?

Mr. Robert H. Roberts: Well, it's in my brief on page 5, but --

Justice Hugo L. Black: But where is it in the record, do you know?

Justice Byron R. White: It's in the lower court's opinion in the record 186 as the charge against Jones.

Mr. Robert H. Roberts: Yes sir.

And the entire discussion about the criminal activity that he was charged with takes place on between pages and 70 and 78 of the transcript of the FAC here as also of course in the transcript of the court hearing before the Judge Miller.

Justice Potter Stewart: Well, now it's between 70 and 78, and you don't mean apparently 70 to 78 of this printed appendix?

I've looked there and found nothing.

Mr. Robert H. Roberts: No sir.

We had the part of the record, though here is the FAC transcript of the hearing.

Justice Potter Stewart: But the excerpts in that transcript containing the evidence we're now discussing, that is these convictions is not anywhere in this appendix, am I correct?

Mr. Robert H. Roberts: -- No sir ti should be, it's on page 48 of here.

Justice Potter Stewart: Thank you, thank you.

Mr. Robert H. Roberts: Of course we feel that the most serious thing that took place was the matter of this leaflet which he attempted to disrupt orderly activities of the school and even in Tinker it was stated clear that the orderly activities of the school is not subject to First Amendment rights.

We think that registration certainly is an orderly and part of the record functions on school.

My time is expired.

Print this transcript Transcript: 

Argument of Robert H. Roberts

Chief Justice Warren E. Burger: The state board of education, where we left off yesterday afternoon.

Mr. Robert H. Roberts: Mr. Chief Justice and may it please the Court.

I will conclude argument for the respondents in this manner.

I would like to call the Court's attention to an article written by Professor Charles Allen Wright in connection with speech to be delivered on Vanderbilt University campus on October 1969 entitled “The Constitution on the Campus.”

This is one of the Oliver Womble Holm series and I think that it is one of the best written articles I have ever read and I recommend it to the Court if they haven't already seen it.

In it though, Professor Wright basically wound up by saying that expression can be restrictive, if at any time, if material substantially interferes with a normal procedures of the university or with the wraps of other.

Now, it is our contention that the basic issue involved here is just the action that this student has been accused and found guilty of committing based primarily under his First Amendment rights.

Yesterday --

Justice John M. Harlan: There were additional findings of the violation for regulations?

Mr. Robert H. Roberts: Yes, Your Honor.

There was a finding that he had committed a misdemeanor and found guilty in court in violation of the student handbook which had been a specific charge against him in addition.

They also found that he lied to the committee while before ti and openly before it and I might say this, it is not only just, he just told the president of the effect that he was lying in front of this outstanding faculty group and other students and even the press was present when this happened which compounded the disrespect that he showed to president on this occasion.

Yesterday, I had the feeling that there was some question in the mind of perhaps Associate Justice Marshall in regard to why this action on the leafleting or the boycott literature didn't result in any kind of a serious incident.

I didn't called the Court's attention to this but I would like to do it this time.

Mr. Jones at the time that he passed out this leaflet had already been temporarily suspended from school.

He was not on the campus at that time as a student.

When he passed out this literature he was awaiting his hearing to see whether or not he would be admitted in the full term or not.

This literature was passed out on August 18, 1967 which according to the calendar which you have in the appendix in the student handbook part of it which begins on page 175 of the joint appendix, a calendar of the school.

Here, you'll find that this was the last day of final examinations for the last term of the summer quarter.

When he did this, the baccalaureate services follow that by two days and school was out then until the following term started.

That is the reason there was no more commotion following it.

However, I direct your attention to the fact that this was followed -- itself following by just a couple of weeks or so, arrived on the campus and tensions were high.

Now admittedly, the faculty hasn't in it's findings written out that as a result of this literature been passed out on the final examination day that John Smith came to him and said, “Well, that bothers me and I couldn't correctly answer one of the questions on the examination” or anything like that, but they found it as a matter of their interpretation.

They were there on the campus.

We're not talking about some rural constable or something like that that might be found in my home county of Pickett.

We're talking about nine of the outstanding members of the faculty on Tennessee State University's campus.

We're talking about the vice president Maritus (ph), who was the Chairman of the Faculty Advisory Committee with 30 some years of experience there as a school administrator.

We are talking about Dr. J.A. Payne who acted because of Dr. Boswell's poor health as the presiding officer over this faculty advisory meeting with the great many years of experience on the campus and as being the students.

We're talking about the dean of women and the dean of men.

School administrators, practically all if not all of them hold doctorate degrees and had the combined experience of well and in excess of 100 years there on the campus, that's who we're talking about, substituting the judgment on as to what --

Justice John M. Harlan: Supposing this temperate document that had been passed around speaks exactly about diversity.

What would you say about that?

Mr. Robert H. Roberts: I should call the events --

Justice John M. Harlan: -- still a justice on the [Inaudible]

Mr. Robert H. Roberts: Yes sir and I think it would be all together a different situation.

I think you could perhaps of even gone across the street a little ways to centennial park and got up on a bench and maybe made a speech on it and it would have been somewhat different.

Here, it is calculated to do one thing, calls unrest and tried to prevail his ideas and his desires on to the student body there.

He had already been suspended.

He -- it wasn't a matter for him not to register.

He was trying to ask everybody else to join with him because his conduct had caused him to be suspended where he wasn't permitted to continue during the summer quarter and was called on them to do so.

Now as to the type of thing that was in this makes very important.

There was really more to it than just boycott.

So far as it being designed to create unrest and we got to keep in mind now that this was fall on a period of great deal of disturbance on the campus where property was destroyed and people were injured.

Some of the things that he says for example anything that give the puppets, I'm talking about school administrators now.

That's a reference that he makes to them.

He calls them puppets throughout this.

I want to adapt civilized tactics used by the man and that sort of thing.

Then he goes on with words like “does the campus will become a concentration camp controlled and contained by the legislation of the raciest dogs' downtown.”

The acts of the puppet administrators here at the end referring to these people for whom he had already been advised that he was going and have to come and clearance have with before he could be re-enrolled.

The Billy clubs and guns of Nashville's raciest cops and ultimately the gestapo tactics of the honorable National Guard whose pale faces have already been seen in Memphis, Nashville.

We as intelligent black students will not be guarded by trampling parialist idiots who call themselves administrators.

Now that's what he's saying about the school administrators.

He said earlier that he came down to Tennessee to go to school because he investigate and found that it was a great school and he wanted to go down there.

Yet in his first year there an 18-year-old boy, he conducts himself in such a way and has the all that has come out with something like this and talking this very school administrators whom he had chosen to go to earn an education.

And he closed it then with this article and counts and brought and bribed heavy counts.

Cast your vote for student power.

Boycott registration, September 23 and for as long as the puppet administration refuses to acknowledge that this is our university.

Justice Hugo L. Black: What do you mean by the boycott part?

Mr. Robert H. Roberts: Registration.

He was -- they asked them not to come in and register for classes and just to freeze the university so to speak and to bring it to a complete start, that would be the effect of it.

Justice Potter Stewart: And when was this --

Mr. Robert H. Roberts: This happened on the --

Justice Potter Stewart: -- that they handed out this?

Mr. Robert H. Roberts: On August the 18 to which was the last day of the --

Justice Potter Stewart: Summer term.

Mr. Robert H. Roberts: -- summer term, yes sir, the -- they have two terms during the summer there and operate on the quarter hour basis.

Justice John M. Harlan: Suppose in the -- they have forgotten to urge these boys and girls not to register, just used the childish, foolish, silly names but respectable people, what would you say about that?

Mr. Robert H. Roberts: May it please the Court, I think that it was to be serious enough about urging the boycott, but you can't separate it.

It was all one article.

He did all of it for design for one purpose that the administrators found that it was for the purpose of disrupting the school, and that didn't entitle him to remain on the campus any longer as a result of it.

Now, if the judicial branch is going to substitute its judgment for people of a character that I have described of this Faculty Advisory Committee, on this question of fact and really it is a question of fact of whether or not these things, these acts committed were tapped that would be disruptive on the school campus or were just playing free expression or not, and they found otherwise.

Now if we're going to get into this field, where are we going to stop?

Wouldn't the next logical place be to examine the examination papers given to a student and the time of whether the professor you've given him a passing mark or not?

After all, you can effectively expel in that way.

If he doesn't, then any practical any university in the country if he doesn't make his grades, he's not entitled to enroll the next quarter.

You could eliminate him in that manner.

I just respectfully urge the Court to give some support and some credit to these men of outstanding ability and making the determination that it involves a factual matter and if you do so, I feel that the Court will affirm the action in it and I thank you for your kind attention.

Chief Justice Warren E. Burger: Mr. Boult, you have about nine minutes left.

Argument of Reber F. Boult, Jr.

Mr. Reber F. Boult, Jr.: Yes, Your Honor.

Justice Thurgood Marshall: [Inaudible]

Mr. Reber F. Boult, Jr.: Mr. Justice Marshall, if those two convictions are to be considered, we have to reopen the entire disciplinary procedures.

Justice Thurgood Marshall: Is it in the record, any place?

Mr. Reber F. Boult, Jr.: They are mentioned at several places in the record Your Honor, page 48 for example and various other places.

The sequence on that --

Justice Thurgood Marshall: If it is to be un-contradicted in the record?

Mr. Reber F. Boult, Jr.: Certainly.

He was convicted and it was on appeal at the time the hearing was going on there.

Justice Thurgood Marshall: And it was a part of the charge against it?

Mr. Reber F. Boult, Jr.: It was a part of the charge against it.

Justice Thurgood Marshall: And it wasn't answered?

Mr. Reber F. Boult, Jr.: There was no conviction so to speak of the Faculty Advisory Committee on these charges.

Justice Thurgood Marshall: Well, it's not sufficient to discipline them, to be convicted in the criminal court?

Mr. Reber F. Boult, Jr.: I don't think the issues in the case Your Honor, I doubt it.

If I would to argue that point, if I thought the point were in the case --

Justice Thurgood Marshall: Does it violate these rules found on pages 75 or not?

Mr. Reber F. Boult, Jr.: The rule on being convicted of being the city to council leads to federal offense.

I don't think it does because it was not filed, it was on appeal.

Justice Thurgood Marshall: It was not found?

Mr. Reber F. Boult, Jr.: It was not, the conviction was not found.

The cases were on appeal at the time of these procedures.

Justice Thurgood Marshall: But that doesn't appear in the record.

Mr. Reber F. Boult, Jr.: Yes it does, I believe Your Honor at page 48.

Justice Hugo L. Black: What is happened since?

Mr. Reber F. Boult, Jr.: I don't know Your Honor.

Justice Hugo L. Black: You don't know?

Mr. Reber F. Boult, Jr.: No I don't -- see this issue has really not been in the case throughout any of the lower courts because the Faculty Advisory Committee exonerated him on these charges.

He was not dismissed for school for having violated that particular rule.

The Chairman of the committee so testified, the charges make no mention about it.

Chief Justice Warren E. Burger: But that doesn't means they ignored it, that means they didn't -- they ignored it.

They didn't say they exonerated him on that --

Mr. Reber F. Boult, Jr.: Well, they did not dismiss him from school for that charge.

They're up --

Chief Justice Warren E. Burger: -- to have it adequate other examples.

Mr. Reber F. Boult, Jr.: Possibly so.

They were half a dozen charges against him and of the three students involved in the whole thing, there were about 18 charges and there were only findings of shall we said guilt on a smaller number of these charges.

We assumed, it has been assumed up to this level always with the case that if Faculty Advisory Committee did not make a finding that a student had done what -- on a particular charge, then, they were not disciplining him for it.

Chief Justice Warren E. Burger: But is the conduct in which these criminal charges developed on the campus or off the campus?

Mr. Reber F. Boult, Jr.: Off the campus, totally unrelated to campus.

Chief Justice Warren E. Burger: Do you suggest that he could not be dismissed laying aside the notice fact that he could not be dismissed for conduct off the campus?

Mr. Reber F. Boult, Jr.: It depends on the conduct Your Honor.

This particular conduct, I would say not.

Justice Hugo L. Black: What was it?

Mr. Reber F. Boult, Jr.: Disorderly conduct.

Justice Hugo L. Black: What was it?

Mr. Reber F. Boult, Jr.: As I recall the facts of the case, there are not of record, it was an argument with a police officer, leaves us vagrancy and disorderly conduct.

Justice Hugo L. Black: Just an argument?

Mr. Reber F. Boult, Jr.: Just an argument.

He's coming out of his house.

He was well-known around town, was unpopular.

He was arrested on one of these general dragnet laws and I'm talking outside the record because this was -- this point would have developed, had it been in the case at the time but was not.

The vagrancy statute in Tennessee in which he was arrested has since been declared unconstitutional.

And that disorderly conduct statute is similar to the one under consideration by this Court in the case of Gunn versus the University Committee.

So this particular conviction would probably be unconstitutional.

Mr. Roberts says -- he mentioned that the handing out of this leaflet falls around by couple of weeks; that is not true.

He mentioned that Mr. Jones had already been suspended at the time he handed out the offending leaflet.

The suspension was clearly unconstitutional on any of the lower court decisions on student's rights and with no notice, no hearing, no nothing, and ultimately, it was rescinded.

He was suspended on three vague charges, none of which were pressed later on in these proceedings.

Justice Potter Stewart: Now the only findings against this man as I understand appear on page 31, at the bottom of the page 30 and top page 31 of the appendix, is that right?

Mr. Reber F. Boult, Jr.: That's correct.

Justice Potter Stewart: Which consist of -- that's well ambiguous, but the only explicit thing is distributing literature, although it's on different occasions to promote unrest on the campus by such actions as distributing literature, designed for that purpose, that's one of the findings and the other is he didn't tell the truth?

Mr. Reber F. Boult, Jr.: That's right Your Honor.

In dealing with the case, we have given the benefit of the ambiguity to the university and assume that it was about the literature.

Justice Potter Stewart: Well you --

Mr. Reber F. Boult, Jr.: If --

Justice Potter Stewart: -- so far as they given the -- well --

Mr. Reber F. Boult, Jr.: If on the other hand --

Justice Potter Stewart: It certainly finds it, it's certainly finds that he did that.

Did he promoted unrest by distributing literature and the ambiguity is whether the findings include other ways in which he promoted unrest.

Mr. Reber F. Boult, Jr.: Yes, and if there are other ways we would say that due process has been violated, because the man has not been told what he is being disciplined for?

Justice Potter Stewart: Now he was charged, he was totally charge for including those criminal convictions?

Mr. Reber F. Boult, Jr.: Yes, but not convicted, not disciplined for it, not told that he had been found guilty of it.

Justice Hugo L. Black: Are you arguing that a college would not have a right to expel a man if they caught him in an outright falsehood?

Mr. Reber F. Boult, Jr.: I don't think that issue is in case Your Honor.

Justice Hugo L. Black: Well, that's what they found him guilty of?

Mr. Reber F. Boult, Jr.: They never charged him for telling falsehood.

They never even gave him a chance to say I didn't tell a falsehood.

They just came down one day and said you lied, you're gone.

Chief Justice Warren E. Burger: But if the falsehood is committed as part of the response to other charges, do you mean to suggest they have to start all over and give them some new charges when they -- the very people sitting in the room have heard him commit what they regard as a falsehood?

Mr. Reber F. Boult, Jr.: It's just to analogize to the outside world, it would a perjury proceeding.

Chief Justice Warren E. Burger: Well, this isn't a criminal proceeding counsel.

You're trying to equate this to a criminal proceeding with all the constitutional protections of criminal proceeding?

Mr. Reber F. Boult, Jr.: Not all Your Honor, I think at that the very least notice an opportunity to defend has been settled ever although this Court has not direct to pass on it, it has been considered to be settled since the Dixon case in 1961 or 1962.

Justice Hugo L. Black: Are you arguing that if a man called up before the board of college administrators, that's a charge, and he delivered and falsifies in their presence on that the charges that they would not have a right to remove him from school?

Mr. Reber F. Boult, Jr.: Not at all Mr. Justice Black.

Justice Hugo L. Black: Well, that's what they said here?

Mr. Reber F. Boult, Jr.: I'm arguing that if he deliberately -- if he is thought to have deliberately falsified something, they should charge him with that and --

Justice Hugo L. Black: When you talk -- you mean to have to charge him in advance?

Mr. Reber F. Boult, Jr.: At least --

Justice Hugo L. Black: The object of the school I would suppose is try to get the students who learn, take part in a regular business and I wouldn't suppose at least in the schools I went to, they were compelled to give me formal charges of anything if they want to get me up and they came to move me without formal charges, I would think.

You don't think so?

Mr. Reber F. Boult, Jr.: I don't think so Your Honor.

I don't think the law has been so for the last six great years, although --

Justice Hugo L. Black: What case has held to contrary, I'm just curious?

Mr. Reber F. Boult, Jr.: Excuse me?

Justice Hugo L. Black: What case has held to the contrary?

Mr. Reber F. Boult, Jr.: Starting with Dixon versus Alabama State Board of Education, Knight versus State Board of Education.

Probably, I would say 30 or 40 disciplinary cases in the meantime ending most recently or more recently was Cagen versus Lincoln Memorial University, Western District of Wisconsin.

Justice John M. Harlan: Any of those in this Court?

Mr. Reber F. Boult, Jr.: None of those in this Court Your Honor.

A number of them approved in a footnote in Tinker, cited approvingly in the footnote in Tinker.

Justice William J. Brennan: May I ask if that sentence of 31 is at the hearing, he demonstrated this indifference to the two by denying that he passed up such literature despite positive statements by cafeteria personal and the president of the university.

Maybe he'd done so and my question is did the cafeteria personnel and the president of the university testify at his hearing in his presence that he had done so?

Mr. Reber F. Boult, Jr.: The cafeteria worker testified at his hearing in his presence --

Justice William J. Brennan: Was the cafeteria worker -- was he represented by counsel at the hearing?

Mr. Reber F. Boult, Jr.: Mr. Jones?

Justice William J. Brennan: Yes.

Mr. Reber F. Boult, Jr.: Yes.

Justice William J. Brennan: And with that witness from the cafeteria cross examined?

Mr. Reber F. Boult, Jr.: Yes, and he was brought out that she was testifying that the leaflet was handed out three months before it was prepared, so that the testimony was rendered wholly incredible.

Justice William J. Brennan: What about the president of the university, he testified at his hearing?

Mr. Reber F. Boult, Jr.: He testified.

Justice William J. Brennan: And was he cross examined?

Mr. Reber F. Boult, Jr.: He was cross examined.

It appears in the record at page 154.

Justice William J. Brennan: Well, then I don't quite understand your point that the charge was not or the fact of his lying or allegation that he would have lied.

As I gather, your point is that that was not a basis for the discipline that was imposed.

Mr. Reber F. Boult, Jr.: He had never -- it was not a basis for the discipline to anyone's knowledge until the findings came out some 10 days after period.

Justice William J. Brennan: Well was surely, he must have known that the hearing itself that the issue of his veracity was in the case?

Mr. Reber F. Boult, Jr.: Your Honor, the next event at the hearing after the president testified was Mr. Jones' testimony.

His testimony contradicted that of the president and it simply Mr. Jones, we presumed thought he was telling the truth.

He asserted --

Chief Justice Warren E. Burger: Do you want us to reexamine the issue of credibility in this Court?

Mr. Reber F. Boult, Jr.: I don't think it's all necessary Your Honor.

I think every examination of credibility --

Justice William J. Brennan: Yes, but the finding -- the finding of the committee was that we have no doubt that the student did not tell the truth.

So, as between his testimony and that of the president and the cafeteria worker, at least this committee resolved the question against the Jones, didn't they?

Mr. Reber F. Boult, Jr.: And when the -- yes, and when the question is --

Justice William J. Brennan: And you suggest that was not a basis for its action in imposing discipline?

Mr. Reber F. Boult, Jr.: I don't think a man can be disciplined for defending himself.

Chief Justice Warren E. Burger: You mean he's got a license to lie in his defense with impunity, could that be the essence?

Mr. Reber F. Boult, Jr.: The essence is if he's accused of lying, he should have the chance to prove that whether he was or not.

Chief Justice Warren E. Burger: That's the new proceeding you think like a perjury proceeding in the criminals case.

Mr. Reber F. Boult, Jr.: I think so, Your Honor.

Justice Hugo L. Black: What kind of school is it?

Mr. Reber F. Boult, Jr.: It's a state university for Negroes.

Justice Hugo L. Black: State what?

Mr. Reber F. Boult, Jr.: A state university for Negroes since --

Justice Hugo L. Black: How many people are on it?

Mr. Reber F. Boult, Jr.: By terms of the --

Justice Hugo L. Black: Are the instructors colored or white?

Mr. Reber F. Boult, Jr.: Largely, roughly 80% Negro I think, it has since been put under desegregation plan.

Justice Hugo L. Black: What was the president of the school who testified?

Mr. Reber F. Boult, Jr.: He was Negro.

Chief Justice Warren E. Burger: Thank you for your submission.

The case is submitted.