WOOD v. STRICKLAND

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Argument of G. Ross Smith

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1285, John P. Wood against Strickland and others.

Mr. Smith, you may proceed whenever you're ready.

Mr. G. Ross Smith: Mr. Chief Justice and may it please the Court.

This case is here on certiorari to the United States Court of Appeals for the Eighth Circuit and involves a disciplinary sanction imposed against three 10th Grade female public school students for violating a school board regulation prohibiting the possession or use of intoxicating beverages at school or at a school sponsored function.

The petitioners are members of the Board of Education of the Mena Special School District of Polk County, Arkansas.

Petitioners submit that the basic issue is whether the Court of Appeals properly reversed directed verdicts for the school board defendants in a public school student suit under 42 U.S.C., Section 1983 on the grounds that the school board had misconstrued and misapplied its own regulation and that the application of that regulation to these students deprived them of Fourteenth Amendment substantive due process.

Petitioners' contention that there's nothing in this record to warrant the exercise of federal jurisdiction in that respondents have shown the deprivation of no federally protected right.

For reasons which I hope to discuss later, we submit that the issue of procedural due process is not properly before the Court in this case and would call the Court's attention to the fact that the amicus brief submitted on behalf of the respondents deals only with the procedural due process issue and does not reach the substantive due process question.

The basic facts are uncontroverted.

Early on the school day on February 7, 1972, three female students, two of them are respondents here, devised a plan to leave the school premises to purchase an alcoholic beverage which they intended to put into the refreshments to be served later that day at a joint parent-student function to be held on school premises, this function was sponsored by the Home Economics Department.

Since the school district is situated in a county in Arkansas which has exercised its local option and has loaded “dry,” sale of alcoholic beverages in the county is unlawful.

The respondents drove out of the county, across the state line into the state of Oklahoma where they purchased at a tavern a quantity of malt liquor beverage.

Returning to Mena, they then purchased non-alcoholic beverage with which they mixed the malt liquor, returned to school and completed their plan.

Several days later, their teacher learned of this incident and confronted the girls with her information.

After first denying that they had been engaged in this conduct, they later admitted their involvement.

The matter was then brought to the attention of the principal and he advised them that he would invoke a one-week suspension until such time as the Board of Education had opportunity to deal with the question and that it was their ultimate responsibility.

That evening, the board did meet to consider the matter.

The principal and the teacher who had visited with the girls earlier that week relayed to the board the information that was given to him by the students and the board voted to suspend the girls for the balance of the semester pursuant to the regulation cited in our briefs.

Justice Harry A. Blackmun: Right there, Mr. Smith, what is the balance of the semester?

This was in February, wasn't it?

Mr. G. Ross Smith: Yes, Your Honor.

This occurred on February 7, the hearing was on February 18.

Justice Harry A. Blackmun: So, that would be until June?

Mr. G. Ross Smith: Your Honor, normally, the school year in Arkansas school districts last through May, yes sir.

Justice Harry A. Blackmun: I think your statements made in some of the briefs that the girls lost a full year.

How could they lose the first half of the year then?

Mr. G. Ross Smith: Your Honor, the Court of Appeals made that observation in its opinion and frankly there is no evidentiary support in the record to sustain that.

They had completed the first semester of that school year and there's nothing to suggest that they lost any credit other than that which they would have earned in the spring semester, namely two units.

Justice Harry A. Blackmun: Now, that I have you interrupted.

Under Arkansas law, how long does a student -- how long is a student under compulsion to attend school?

Mr. G. Ross Smith: Up until the age of 15, Your Honor and both of these students, one was 16, one was 17.

So, they were beyond the reach of the Compulsory Attendance Law.

Justice Harry A. Blackmun: Now does the third girl --

Mr. G. Ross Smith: This is contrary too in observation of the district judge I might add.

Justice Harry A. Blackmun: Has the third girl never been a party to this litigation?

Mr. G. Ross Smith: That's correct, Your Honor.

Justice Harry A. Blackmun: But she apparently was the main force behind the enterprise, was she not?

Mr. G. Ross Smith: According to the testimony of the other two girls, perhaps, that does an accurate characterization.

Justice Potter Stewart: What age in Arkansas does a person have a right to attend the public school or is there no limit?

Mr. G. Ross Smith: Well, Your Honor, I don't know that there is a right to attend the public schools up to a certain age.

The schools may furnish instructions for students between the ages of 6 and 21.

Justice Potter Stewart: May or are they required to?

Mr. G. Ross Smith: They are required to.

But --

Justice Potter Stewart: Well, it is an obligation on one side.

I suppose it's a right on the other side.

Mr. G. Ross Smith: Yes, Your Honor.

But I didn't mean to imply the school district has to furnish courses of instruction for a person 20 years of age, for example.

Justice Potter Stewart: Well, if he's graduated from the 12th grade, I suppose.

Mr. G. Ross Smith: Correct.

Justice Potter Stewart: It's the end of it.

Mr. G. Ross Smith: After the girls and the parents were informed of the decision made at the special board meeting, they were later furnished at the request, at their request and the request of their counsel, a special board meeting to be held on March 2.

At the outset of this meeting, the board presented a statement of facts which they had found and on which they had based the suspension.

Included in the statement was the following which appears at appendix page 137 that the three girls in question traveled to Oklahoma, purchased a number of bottles of malt liquor, a beer-type beverage and later went on to school premises with the alcoholic beverage and put two or more bottles of the drink into the punch or liquid refreshment which was to be served to members of the class and their parents.

The respondents and their counsel were then given an opportunity to respond which they did.

After the conclusion of this presentation, the board again voted that the children would be suspended for the balance of the year.

Justice Thurgood Marshall: What was the nature of the defense?

Mr. G. Ross Smith: I beg your pardon, Your Honor.

Justice Thurgood Marshall: What if anything was the nature of the defense?

Mr. G. Ross Smith: Your Honor, the only reference --

Justice Thurgood Marshall: It hasn't anything to do with this case, I am just curious?

Mr. G. Ross Smith: The district judge in his opinion stated that, there had never been any contention by the students or their parents that the rule had not in fact been violated.

Their contention was the punishment was excessive.

On the other hand, their counsel did argue, it doesn't appear that this argument was presented at the board hearing but he certainly argued at trial of the case that because of the low alcoholic content of this particular beverage which evidence demonstrated later to be 3.2%, that there was actually no --

Justice William O. Douglas: You said 3.2?

Mr. G. Ross Smith: 3.2%, yes sir.

That --

Justice Potter Stewart: Although the district judge simply put the name --

Mr. G. Ross Smith: In solution --

Justice Potter Stewart: Only a little bit of the 3.2 --

Mr. G. Ross Smith: That's correct, Your Honor, that's correct.

The argument was that there had been no proof, if there it wasn't that intoxicating that no violation of the rule had been shown and that this constituted a violation of substantive federal constitutional due process and that is the basis upon which the Court of Appeals ultimately based their opinion.

Justice William H. Rehnquist: You said, the Court of Appeals said that it based its opinion on substantive due process but I didn't read its opinion as saying that the school board couldn't as a matter of substantive regulation provide that you could expel a person for putting the beer in a punch.

I read it more as a kind of review of the evidence type of opinion.

Mr. G. Ross Smith: That's correct Your Honor.

Justice Byron R. White: Just like Sand case.

Justice Potter Stewart: Thompson against Louisville, you're familiar with that case?

Mr. G. Ross Smith: I'm not sure that I am.

Justice Byron R. White: A no evidence case.

Mr. G. Ross Smith: Yes sir, yes sir.

That's essentially what the Court of Appeals held.

In doing so, however, I think the Court of Appeals conveniently overlooked the fact that the school board construed their regulation to reach alcoholic beverages.

They so found in a statement issued March 14.

The girls themselves admitted a violation and as a matter of fact, the testimony at the trial demonstrated that when the regulation was adopted, it was adopted in response to an incident involving beer which has -- well, I don't think the record shows what the beer would have had in terms of alcoholic content.

Justice William J. Brennan: Well, this was 3.2, I think you said it.

Mr. G. Ross Smith: That's correct, Your Honor.

Justice William J. Brennan: Is that intoxicating?

I thought they use to have -- they're allowed to drink that because it wasn't.

Mr. G. Ross Smith: Your Honor, in terms of the alcohol -- the Arkansas statute's definition of an intoxicating liquor from a criminal standpoint, it is in excess of 3.2, a defined beer as a malt beverage containing up to 3.2% alcohol.

Justice William J. Brennan: Well, what -- this was 3.2, whatever you call it?

Mr. G. Ross Smith: Not to exceed.

Justice William J. Brennan: Not to exceed --

Mr. G. Ross Smith: Not to exceed 3.2.

Yes, sir, this particular beverage.

Justice William J. Brennan: Is that beverage intoxicating?

Mr. G. Ross Smith: Your Honor, in terms of the Arkansas statute, it is not.

Justice William J. Brennan: Are you old enough to remember when we used to be allowed to drink 3.2 beer?

Mr. G. Ross Smith: I don't know how to answer that.

I don't think I ever drank 3.2 beer, Your Honor.

Justice William J. Brennan: Well, I can tell you from personal experience.

Chief Justice Warren E. Burger: Well, is it illegal in this county?

Mr. G. Ross Smith: It is and the prosecuting attorney when inquired -- when the Board President inquired of him as to the nature of this beverage, he said, “In his view, it was an intoxicating beverage.

Its possession was unlawful.

He had prosecuted individuals for possessing it in that county.

Justice Thurgood Marshall: When was it mixed, in the school or out of the school?

Mr. G. Ross Smith: I beg your pardon?

Justice Thurgood Marshall: When was it mixed with all of these other juices that are non-toxic?

Mr. G. Ross Smith: It was mixed with the non-alcoholic beverage off of the school premises.

Justice Thurgood Marshall: So, when they got on the school premises, it was not intoxicating.

Mr. G. Ross Smith: It was 84 ounces of solution, 24 ounces of which was alcoholic and then of course 3.2% of that was the alcohol.

Justice Thurgood Marshall: As I understand --

Mr. G. Ross Smith: But Your Honor, right, that's the point.

Justice Thurgood Marshall: But it was 3.2, diluted was made it less than 3.2?

Mr. G. Ross Smith: Yes, Your Honor.

Yes, Your Honor.

Justice Thurgood Marshall: What is -- I thought you said 3.2 made it intoxicated, below 3.2 was not?

Mr. G. Ross Smith: That's the definition provided in the criminal statutes of the State of Arkansas.

This rule was adopted by the school board, January 10, 1967.

The Board President through the board members who were on the board at that time testified that when they adopted this rule, it was adopted in reference to an incident involving beer and that they used the term intoxicating liquor in its commonly accepted lay sense.

They had no reference to a criminal statutory definition of what is and what is not intoxicating.

Justice Thurgood Marshall: But it wasn't beer.

What they brought in there was not beer.

It was beer diluted with ice and everything else, it wasn't beer?

Mr. G. Ross Smith: That's true, Your Honor.

Justice Thurgood Marshall: Orange gluc--, strawberry soda, Coca-Cola.[Attempt to Laughter]

Mr. G. Ross Smith: Your Honor, the point --

Justice Thurgood Marshall: Lemon juice.

Mr. G. Ross Smith: The point we're trying to make is that this board, [Laughter] this Board of Education construed the conduct of these youngsters to be a violation of its regulation and they imposed a punishment.

Justice Potter Stewart: I suppose now?

Mr. G. Ross Smith: They had a remedy provided by the State of Arkansas by their state courts.

Since 1909 the Courts of Arkansas have been available to issue writs of mandamus for wrongful suspensions.

Now, we submit, there is no federal question involved in this somewhat ludicrous case.

And that the Court of Appeals erred in remanding this case for trial on the plaintiff's claim for damages in the amount of $90,000.00 against the school board members in their individual capacities.

The substance of our argument here is that this case doesn't belong in the federal courts.

There is no federal interest in liberty or property involved in this case.

There is nothing which would require or authorize this Court or the Court of Appeals to consider whether or not the board made an error in applying its intoxicating beverage rule to these facts.

There's no federally protected right to set aside an erroneous decision made by a state officer, be it a school district or anything else and we contend that this is the dispositive issue in the case.

Whether we agree or disagree with their finding that a violation had occurred or the assessment of the punishment, it's not a matter that's protected or involves the United States Constitution.

Justice Byron R. White: Your immunity claim is we can prolong too, I take it?

Mr. G. Ross Smith: Yes, Your Honor.

The Court of Appeals stated that the standard by which the jury will determine whether or not to award damages against these board members in their individual capacities.

Its good faith objectively determined.

Now frankly, I don't know what that means, but I would assumed it means some standard calling for a judgment as to whether they acted as reasonably prudent school board members would have acted without inquiring into their actual state of minds.

Justice Byron R. White: Now, what then -- and you said that, there's something closer to absolute immunity?

Mr. G. Ross Smith: Yes, Your Honor.

We think that this Court's opinion in the Rhodes case coming from Kent State, provides the very minimum standard that should be employed and there the reference --

Justice Byron R. White: That is objective of good faith standard, I think?

Mr. G. Ross Smith: Your Honor, if the Rhodes -- if the Rhodes standard of conduct is objective then fine because it does require an actual inquiry into what the man was thinking at the time he did it and whether he had reasonable cause --

Justice Byron R. White: I thought that was an order in the Rhodes?

Mr. G. Ross Smith: I'm sorry, sir.

Justice Byron R. White: Either a subject in bad faith or objective bad faith, I am sure your case --

Mr. G. Ross Smith: Your Honor, the Rhodes case states that the immunity depends on the existence of reasonable grounds for the belief formed at the time --

Justice Byron R. White: That's subjective.

Mr. G. Ross Smith: -- in the light of the circumstances coupled with good faith belief.

Justice Byron R. White: Coupled with good faith belief?

Mr. G. Ross Smith: Yes, sir.

Justice Byron R. White: It has to be that the 14 year-old --

Mr. G. Ross Smith: That affords basis for immunity.

Yes, Your Honor.

And that is in fact the manner in which the district judge instructed the jury.

Justice Byron R. White: Are you satisfied to show your standard or not with the Rhodes standards --

Mr. G. Ross Smith: Your Honor, we think actually that there are grounds for an absolute immunity here, but frankly there's very little authority to support that argument.

Justice Byron R. White: So you're -- so you're not satisfied with it but to show here is that Rhodes is the law, isn't it and the lower court instructed that?

Mr. G. Ross Smith: Well, actually Your Honor, the district judge in his findings, its temporary restraining order hearing said, “I find that the school board members had reasonable grounds to believe that their regulation have been violated at the time they took their initial action in this case.

As a matter or law, the damage issue should never have been submitted to the jury.”

Justice Byron R. White: Well then, what did the Court of Appeals say?

Mr. G. Ross Smith: The Court of Appeals stated that they could say on the basis of this record that the defense of good faith had been established as a matter of law.

Now, I would point out to the Court that the district judge had before him a good deal more evidence than did the Court of Appeals because the trial transcript to the trial concerning some four days, it was not included in the appendix in the Court of Appeals.

It is in the record in this case at this time and we submit that an examination of that would be illustrative of the actual good faith evidence by these school board members.

Justice William H. Rehnquist: Well, how is the Court of Appeals able to review the District Court's action if there were -- if there wasn't a transcript of the evidence?

What basis did it use to review it?

Mr. G. Ross Smith: It reviewed evidence which had been compiled at the temporary restraining order here along with answers to interrogatories and some other factual material that was in the case, affidavits submitted in connection with both motions on.

Justice Byron R. White: But you do -- you do maintain -- one your questions you want reviewed here is whether the Court of Appeals was correct in its immunity ruling?

Mr. G. Ross Smith: Yes sir.

Justice Byron R. White: Or its standard ruling, whatever you want to call it?

Mr. G. Ross Smith: Yes sir, yes sir.

It's undefined in terms of whether it would permit someone who really believed they were doing what they should be doing to be found to be in good faith.

As I read their opinion, it would not.

It's a question of what a reasonably prudent person would have been doing under the same or similar circumstances.

Justice Byron R. White: Well, then happens --.

I would suppose the Rhodes said that you might think -- you might subjectively say that you were in good faith but it might be that you didn't have reasonable grounds to think so, in which event you are not immune from the Rhodes?

Mr. G. Ross Smith: Yes sir.

As long as we don't get to the position where somebody makes a wrong decision, a decision that's safe -- what comes to mind the Kirstein case where the issue was whether the college officials had committed a constitutional violation by excluding women from what had previously been an all-male school.

They did exclude women.

The Court said, there was no reason at the time for them to saying this was unlawful and we won't assess damages against them.

They made a wrong decision, they weren't liable for it.

But one other point which is very important is that the board all along has dealt with this case on the basis of admitted facts.

There has never been any controversy as to a factual dispute with the possible exception of whether or not this mixture was intoxicating.

And under these circumstances, we submit that this is not an appropriate vehicle for the Court to reach the issue of procedural due process.

Chief Justice Warren E. Burger: Was the Scheuer against Rhodes' opinion down by the time the Court, I think not?

Mr. G. Ross Smith: I believe not, Your Honor.

It's able --

Chief Justice Warren E. Burger: It is not cited in the opinion?

Mr. G. Ross Smith: Right and the Court of Appeals' decision was in August 1973.

We would urge the Court to examine the question of whether there is in fact a federally protected right here to establish the requisite elements of 1983.

We submit Rodriguez stands for the proposition that unless there is a total denial and we don't have here a total denial, we have an expulsion or a suspension, if you will, for a portion of one of 24 semesters that a public school student in Arkansas will be attending school.

Efforts were made here to assure that these girls would graduate with their class by taking one correspondences course and one additional course to make up the two units they missed.

And in connection with the previous inquiry, I believe that Mr. Justice Rehnquist in the last case as to whether there is a property interest involved even the District Court decision in Lopez against Gomez -- Goss -- Lopez against Goss, I believe conceded that education did not involved a property interest.

In Epperson against Arkansas, this Court said that discretion that is to be accorded to public school officials was extremely broad and this Court should intervene only in a clear case of constitutional violation and we respectfully submit that this case involves no such clear case of constitutional violation.

If the Court please, I'll save the remainder of my time for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Core.

Argument of Ben Core

Mr. Ben Core: Mr. Chief Justice, may it please the Court.

I'd like to start out by admitting what I'm afraid will become obvious before I'm finished and that is I'm not a constitutional lawyer, neither am I a civil rights lawyer.

I was in two civil rights cases before this one.

One was settled and the other one was tried and not appealed and then this one has brought me all the way to the U.S. Supreme Court.

Probably, I have read more federal court cases in the last, since this case has been going than I had read in anytime prior to that and I still do not have any feeling of confidence really to discuss constitutional law.

But I have been in this case since before it was a case and if I can help the Court in any way, perhaps it would be more as a result of that than the ability to discuss constitutional principles.

This case got its start when these parents and children came to me to get me to help them get the school board to meet again.

They had been spending, this was on the 24, February and they had the spent the intervening six days in an effort to get the board to meet again, to hear them.

And I first declined to take the case at all, but I did agree to go with them, see if I could get the board to meet again and go with them and we would get our knees really and beg for mercy, see if we could get back in, that was the beginning of the case.

And that was the preliminary to the meeting of March 2, 1972 and at that time, they had been out of school some 11 days.

Justice Harry A. Blackmun: At that time, were you representing the Wall girl?

Mr. Ben Core: No sir, the wall girl never came to me. Just Crain and Strickland and I wish Wall had because she was a full-blood Indian but --

Justice Byron R. White: She was a what?

Mr. Ben Core: She was a full-blood Indian, but she didn't come.

Chief Justice Warren E. Burger: How was her name in the pleadings?

Mr. Ben Core: Sir.

Chief Justice Warren E. Burger: How is her name in the pleadings if she never --

Mr. Ben Core: She's not in the pleading.

Jo Wall is not.

Justice William J. Brennan: I'm curious, what difference would that have made?

Mr. Ben Core: Well, I think the district judge would have ordered the school board to put these kids back in school.

I think if we have had a member of minority race, I think --

Justice William H. Rehnquist: You have been reading some of our Indian case.[Attempt to Laughter]

Mr. Ben Core: Well, again, I'm not familiar with those either.

Justice Harry A. Blackmun: Who was the district judge, Judge Williams?

Mr. Ben Core: Yes, sir.

Paul X. Williams.

Justice Harry A. Blackmun: And you feel that this would have made a difference as well --

Mr. Ben Core: Well, judging from what he said that the first hearing Your Honor.

He said that, “If these were little colored girls.

I'd have to put them back in school.”

And but they're white girls and well, you know.

If he -- if that made a difference to him, I think that might have had.

If we -- it had to be Indian, but any rate, we didn't.

We just have Strickland and Crain.

And as I say, this -- the first meeting, the one on February 18, 1972 was more or less was secret meeting as far as the parents were concerned and it cannot begin to rise to the dignity of due process, either procedural or substantive.

And then the meeting of March 2 was really not in the sense of a hearing, it was -- I had agreed to go with these people to see if I could have an influence with them.

I had held office in that district and they were just convinced that I could.

I was not convinced but I went with them to trial and the meeting was -- it was really no meeting.

It was just exactly what we had in mind, that is going in and apologize and ask them to reinstate us and they offered no evidence.

They -- we didn't see their witnesses.

I had asked for the homeroom teacher to be there and she had talked with the superintendent and asked him if she had to be and he said she didn't and so she didn't come.

So, really, the March 2, meeting of 1972 is not a meeting that furnished either procedural or substantive due process.

Justice Harry A. Blackmun: Well, do you agree with Mr. Smith that there isn't any dispute as to the facts here?

Mr. Ben Core: No sir, I do not.

He -- but he based that on the fact that there was no dispute about this being on an alcoholic beverage or on intoxicating beverage and there certainly is.

Justice Harry A. Blackmun: Well, apart from that one feature, is there any dispute about the facts?

Mr. Ben Core: Well, they have left out many facts which we feel to be pertinent.

They have not disputed any facts which we have submitted.

Justice Harry A. Blackmun: Did you put on or try to these omitted facts?

Mr. Ben Core: Yes sir, they're in evidence.

See, we tried the case for four days but we did not bring that record up simply because of the cost.

See, the girls took the appeal from the District Court and they had -- the District Court had dismissed the case on the basis of these motions for judgment notwithstanding no verdict which was the equivalent of directed verdict.

So, it raised an issue of law and we just took up enough proof to show that there were issues of fact that need to be resolved.

And as a matter of fact, we couldn't afford that record.

Justice Byron R. White: You mean, you couldn't afford the print it.

Mr. Ben Core: Right.

Justice Byron R. White: But the record is here, is it in typewritten?

Mr. Ben Core: Well no, the --

Justice Byron R. White: There was no --

Mr. Ben Core: The evidence -- no sir.

The evidence that was taken at four days of trial was never sent to the Court of Appeals.

Chief Justice Warren E. Burger: Is it here?

Justice Byron R. White: Was it transcribed?

Mr. Ben Core: It had been since the board took this appeal to this Court.

Justice Byron R. White: Well, then --

Justice Potter Stewart: I think the original record is here.

Justice Byron R. White: I would assume the original record is here then?

Mr. Ben Core: I don't know Your Honor.

I've seen it but I returned it to the clerk.

Justice Byron R. White: Did it ever get to the Court?

It never got to the Court of Appeals.

Mr. Ben Core: No, sir.

Justice William J. Brennan: Think it might not be here then?

Justice William H. Rehnquist: Before the school board, did your clients contest the basic factual claim that they had gotten the so-called malt beverage over in Oklahoma and put it in the punch bowl?

Mr. Ben Core: Your Honor, of course, they were not at the February 18 hearing at all but at the March 2 meeting, the whole procedure was for the girls to tell the school board what they did and they did tell, when I say the girls here, I mean the plaintiffs, Ms. Strickland and Virginia Crain.

They did tell the board exactly what they had done.

And --

Chief Justice Warren E. Burger: That's a little cryptic to me.

Exactly what they had done was it -- what is alleged, that is that they went over to Oklahoma and got some beer and brought it back and put in the punch bowl?

Mr. Ben Core: Yes sir.

Well, --

Chief Justice Warren E. Burger: No, dispute over that then?

Mr. Ben Core: That's again leaving out what we think is some important facts.

Jo Wall was the one who knew where to go.

Virginia and Peggy didn't and they went with her.

And then they came back to Mena and bought this King Cooler, some 60 ounces of it and mixed it all together and then took it to the campus and then there they added enough water to make a gallon-and-a-half.

So, you have 0.76 ounces of alcohol when they go up on the school ground.

Justice Harry A. Blackmun: Mr. Core, is this all in the record here?

It seems to that what you just said is --

Mr. Ben Core: Yes.

Yes.

This is or at least enough to make the computation of 7.68 ounce.

Justice Harry A. Blackmun: Well, I'm curious as to what is still missing that you're complaining about?

Mr. Ben Core: Well, all that is here Your Honor is the two hearings which held.

One being on March --

Justice Harry A. Blackmun: These are the facts you've just recited.

I certainly read the, somewhere, either in the briefs or on the Court of Appeals' opinion.

Mr. Ben Core: Right.

There in that testimony, it was taken March 7 and April 7.

Justice Harry A. Blackmun: Well, then what in addition is still missing?

Mr. Ben Core: Well, we had the -- we had the parents testified.

We had a doctor, hematologist testified about the effect of three quarter of an ounce of alcohol on an average man.

We had one of the school board directors testify, two of them, a Dr. Wood and Mrs. Gilford and we had some of the mothers there who attended this mother-daughter function and didn't know that there was anything in there, in the spiking agent.

Justice Harry A. Blackmun: Well, it doesn't it all come down to what is the difference between intoxicated in alcoholic and here there's no argument, is there, about this being an alcoholic beverage and is there any argument that it was non-intoxicating even under Arkansas?

Mr. Ben Core: Yes, definitely.

There is a -- well, no.

They -- if the school board admits that it was not intoxicating, its -- there will be no argument.

So, that's our position, if not intoxicating.

Justice Byron R. White: But they think, they think for their purposes of their rule, it is intoxicating, that's what they thought.

Mr. Ben Core: That's the premise they proceeded under but the President of the School Board admitted on a cross-examination that the girls had not violated the rule.

Justice Byron R. White: Well, are you defending the Court of Appeals' decision?

Mr. Ben Core: Yes, sir.

Justice Byron R. White: And the grounds for it, the rationale for it?

Mr. Ben Core: Well, yes.

You mean, from the standpoint of whether or not the children should be given any --

Justice Byron R. White: No, as to whether the reason for the Court of Appeals' decision in your favor that there was no evidence of the fact that there was an intoxicating beverage involved?

Mr. Ben Core: Yes, I think that's true that there was none and as a matter of fact, the truth is that it was not intoxicating.

Chief Justice Warren E. Burger: Was this illegal conduct in that county?

Mr. Ben Core: Only because -- first, it was not Your Honor because it did not violate any law concerning intoxicating beverage.

Chief Justice Warren E. Burger: Well, did it violate any law?

Mr. Ben Core: Yes, it violated a law against possessing beer that did not have the Arkansas tax paid on it.

And this is what they got rid of the bottles before they came back, I suppose, they said that they poured it out in the milk carton before they came back across the state line.

But at any rate, it is against the law to possess it without the Arkansas tax being paid on it.

Chief Justice Warren E. Burger: So, that you do not question that the girls who were guilty of some illegal conduct?

Mr. Ben Core: That's true, right.

Chief Justice Warren E. Burger: Just a question of how you define that illegal conduct?

Mr. Ben Core: Right.

But of course --

Justice Potter Stewart: There's question isn't it, as to whether or not the girls engaged in a conduct that was -- that is proscribed by the rule of the school board 3 (b).

Mr. Ben Core: That's correct.

Justice Byron R. White: That's the question?

Justice William H. Rehnquist: Well, or more properly, to what extent should a federal court in a 1983 action second guess a school board's decision that that regulation was violated?

Mr. Ben Core: Well, I believe it's the procedural problem --

Justice Potter Stewart: Yes.

Mr. Ben Core: -- Your Honor, because if they had proceeded in a correct manner, then they would have determined that there was no violation.

Justice Byron R. White: But if the school board construed its own regulation, meaning, intoxicating is equivalent to alcoholic, what's the federal court got to do with that?

Mr. Ben Core: Well, it's not really that point that I believe that there is federal jurisdiction.

It's the fact that by the manner in which the school board proceeded that they had already pronounced a very serious judgment without ever having found out that there was either no violation or that it was very questionable whether there was any violation or that even so that these two or three children were not such as would justify this type of penalty.

In other words, how far -- if they had proceeded on a correct manner, they would never have pronounced this judgment because --

Justice Byron R. White: You're then pressing a procedural due process?

Mr. Ben Core: Yes sir.

In fact, the complaint, and I take the issue of Mr. Smith on that, the complaint attacks to the rule as being invalid because it's mandatory and does not permit consideration of mitigating circumstances.

Justice William H. Rehnquist: Is that a federal claim?

You said, the Constitution prohibits a school board from adopting a mandatory rule like this and not taking the consideration mitigating circumstances?

Mr. Ben Core: Yes sir, if it --

Justice William H. Rehnquist: What case of ours do you rely on for that?

Mr. Ben Core: I'm sorry I couldn't cite you a case.

But if it deprives them of -- if they adopt the rule which when enforced will deprive them of a federal right, then I would say it's certainly of the federal courts would have the right to declare it invalid and that's our contention here.

So, we think the rule --

Justice Harry A. Blackmun: Mr. Core, we approach it from this end.

Suppose that this regulation spoke in terms of alcoholic rather than intoxicating beverages.

Would you be here?

Mr. Ben Core: Yes sir and I'm glad you made that point because yes we think the procedure in addition to the problem with the rule, we think the procedure which the board follow is really the reason that they pronounced such a severe judgment on a childish prank with girls that had never any trouble with them before.

We think that their procedure is what led them into this.

They only heard from two teachers and the teachers had done nothing except talk to the girls and the girls knew nothing about what they had gotten or what they put in there, it could've been anything.

And any sort of respectable investigation would have demonstrated that this was not a serious manner, calling for the type of punishment which they inflicted.

Chief Justice Warren E. Burger: Are you defending on the Cruel and Unusual Punishment Clause?

Mr. Ben Core: Yes, Your Honor.

I think that's involved, cruel and unusual.

I think it's also equal protection is involved and we pleaded it in the complaint.

Chief Justice Warren E. Burger: Suppose two students were found sitting in the classroom drinking beer right out of the original bottles, your theory of this case would be exactly the same that the school board could not do what it did here in the way that it did it?

Mr. Ben Core: That's correct, yes sir.

Chief Justice Warren E. Burger: So, they could drink beer with impunity even though it's illegal to possess it in that county?

Mr. Ben Core: No, [Attempt to Laughter] I don't believe that follows Your Honor.

I would think this that what should be done is that children should be called in and it should be discussed with them and if indeed they just flagrantly violated the school discipline by drinking beer even though it's not included in any rule.

I think certainly, this one should be inflicted on them.

Chief Justice Warren E. Burger: That brings us around Mr. Justice Rehnquist's question just precisely, how is that a federal question?

Mr. Ben Core: Well, we feel that --

Chief Justice Warren E. Burger: Federal constitutional question?

Mr. Ben Core: -- that the State of Arkansas has provided this right or this opportunity for education.

And the procedure which they have followed in this case has deprived these children of the right to take advantage of that education for a rather drastic --

Chief Justice Warren E. Burger: Was it the procedure or the beer?

Mr. Ben Core: I think it's the procedure.

Chief Justice Warren E. Burger: If -- you do concede -- you do concede that the school board would have an inherent power to impose a punishment for drinking this same beer in the classroom?

Mr. Ben Core: Well, I certainly do.

Chief Justice Warren E. Burger: But they could not impose such a severe punishment as was imposed here?

Mr. Ben Core: I agree with that, yes sir.

Chief Justice Warren E. Burger: That's -- that's your point.

Justice Byron R. White: We could disagree on the Court of Appeals, I take it on the ground that they used here such as the due process and you could still win on the procedural question which the Court of Appeals didn't reach.

Mr. Ben Core: Yes, sir.

They bypassed that --

Justice Byron R. White: Except for one meeting, they said that on March 2 and February 18 meeting where there was no procedural due process?

Mr. Ben Core: Right.

Justice Potter Stewart: And they didn't decide the question with the respect of second meeting?

Mr. Ben Core: Right, correct.

Justice Harry A. Blackmun: Of course, you don't know why they bypassed it?

Mr. Ben Core: No sir, except the defense -- satisfied on deprival of substantive due process and didn't feel it necessary to pass on.

Justice Harry A. Blackmun: Do you think they called the substantive due process issue was easier than the procedural due process for the second meeting?

Mr. Ben Core: I wouldn't hazard to guess on that, [Attempt to Laughter] Your Honor.

Justice Harry A. Blackmun: Would you explain to me too the injury that these girls, as I indicated in my question to Mr. Smith.

Did they lose a year's -- a whole year's time?

Mr. Ben Core: Yes sir.

What happened, they took correspondence course and so forth.

They lost the credit for the entire year and they had to repeat the entire year.

Justice Harry A. Blackmun: Doesn't the system worked on a semesters --

Mr. Ben Core: It is a semester basis.

Justice Harry A. Blackmun: How come they lost the whole year?

Mr. Ben Core: Well, no.

In fact, the superintendent testified that -- and when you ask me if it worked on semester basis, true, they do carry it in the semesters but the superintendent testified that it was -- that they would fail the entire 10th Grade and have to repeat the entire 10th Grade.

He said that even if they were expelled on their last day of the second semester, they lost the entire year.

But because this was a penalty attached to being expelled, that's what he said, and that's in the testimony.

Justice William J. Brennan: Well, the Court of Appeals, I notice in footnote 1, says the practical effect of the suspension was to cause the girls to fail that entire sophomore year?

Mr. Ben Core: That's right.

Justice Harry A. Blackmun: That's what the Court of Appeals said but I want to know whether it's a correct statement?

Mr. Ben Core: It is indeed a correct statement.

Justice Potter Stewart: Well, Mr. Smith told us it was an incorrect statement?

Mr. Ben Core: Right and I have to disagree with Mr. Smith on that.

Justice Byron R. White: Well, at least, to the girls miss three months of school and they have to make up the next three months of school?

Justice Potter Stewart: No, question to that.

Mr. Ben Core: And it would have been --

Justice Byron R. White: Six months, that's a long time.

Mr. Ben Core: And it would have been the subject matter which wouldn't have been covered until the second semester which means that they'd have to lay out an entire year.

Now, I think -- I think really, the factual basis of the case is so compelling that Mr. Smith says, he predicts dark consequences if we hold that federal court has jurisdiction in this type situation.

I would really rather can look at it this way as what's going to happen if federal courts do not take jurisdiction in this type of situation.

Chief Justice Warren E. Burger: One thing that might happen is that they'd go into the state courts, isn't it?

Mr. Ben Core: Well, that's true but --

Chief Justice Warren E. Burger: Wasn't that the custom until just a few years ago?

Mr. Ben Core: Well, in my -- I've practicing a little over -- I am well over in the 24 year and I don't recall any suits like this before.

I don't remember reading any in the Arkansas Supreme Court reports except that one real old case where the father brought a suit against the school board and they held that he had no interest in and that's the only case that I know of.

Justice Harry A. Blackmun: Well, isn't this just a new fashion kind of case that you and I were in elementary school, we got bumstead and we went home.

Mr. Ben Core: That's right.

Justice Harry A. Blackmun: And made a federal case out of it?

Mr. Ben Core: That's true, that's back in the days of paternalism that our district judge referred to when he heard the case.

Justice Harry A. Blackmun: You have good courts in western Arkansas, don't you?

Mr. Ben Core: I beg your pardon?

Justice Harry A. Blackmun: I say, you have working courts in western Arkansas?

Mr. Ben Core: You mean state courts?

Justice Harry A. Blackmun: Yes sir.

Mr. Ben Core: Yes sir.

And of course, I've been in them quite often and I'm personally acquainted with the judges and --

Justice Harry A. Blackmun: Isn't that where Judge Williams came from?

Mr. Ben Core: Yes sir, he came from Booneville by which is only 35 miles from Fort Smith.

Justice Harry A. Blackmun: You mean he came from the state side on the judiciary?

Mr. Ben Core: Yes.

Justice Harry A. Blackmun: He's a state judge --

Mr. Ben Core: He served for over 20 years as a chancellery judge before he was a district judge.

Justice Potter Stewart: You mean, in Pope County, where it what?

Mr. Ben Core: It's 85 miles south of Fort Smith.

It's in Pope County.

It's the county seat of --

Justice Potter Stewart: Of Pope County.

Mr. Ben Core: Right.

Justice Potter Stewart: And the -- it's a basically small town.

Mr. Ben Core: It's some 4,500 population.

Justice Potter Stewart: And the school board has a county-wide jurisdiction , does it?

Mr. Ben Core: No sir, there are, I believe, two, three -- three other consolidated schools in the county.

And so they would -- their jurisdiction be limited to their district which is the Mena School.

Justice Potter Stewart: Which is Mena, which is basically the town of Mena.

Mr. Ben Core: Right.

Justice Potter Stewart: And population of less than 5,000.

Mr. Ben Core: Right.

And of course, the judges know all the school directors and you made a good point Justice Blackmun.

If you read what Judge Williams said, you will see how reluctant he was to order the school board to do what he fully believed they ought to do.

And I think you'd have the same problem with the other good judges there and I don't mean to criticize them.

I have a great deal of respect for them but you'd get away from that when you get into federal court, most of the time.

We didn't here because Judge Williams was from Booneville and had been on the school board and so forth.

And as I say, he's a good friend of mine and I certainly don't criticize him but he expressed his great reluctance to order these school directors to do what he was telling them in effect they ought to do.

Justice William H. Rehnquist: But he didn't actually order them?

Mr. Ben Core: No sir, he never did.

He let it go on to a jury and then he sustained these motions for judgments notwithstanding, no verdict.

But again, as I say, I think the factual basis, the way these children were handled is the most compelling argument that I can make that the federal courts should take jurisdiction and should provide a remedy.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Core.

Do you have anything further Mr. Smith?

Rebuttal of G. Ross Smith

Mr. G. Ross Smith: Yes, Your Honor.

If I might briefly, address the issue of procedural due process.

As has been noted, the Court of Appeals acknowledged that the March 2, 1972 hearing may have cured any prior procedural defect.

Indeed, the students and their counsel were granted every benefit that they claim in their brief.

They had notices of the meeting.

They had a statement of facts upon which the action was taken at the inception of the meeting.

They had the opportunity to appear to present any witnesses they cared to present.

They were represented by a counsel.

And if that doesn't constitute procedural due process in the public school context, then I don't know what does.

The procedural due process issue will not sustain what the Court of Appeals has done.

I would assume that if the defect is found in the procedures, the remedy is to remand the case and give them a new hearing.

Now, what on earth are they going to do when they give them a new hearing?

What kind of evidence would be presented at that point that already has been presented?

The point is that the school board construed its regulation to reach alcoholic beverages.

Mrs. Gilford, a school board member, testified at the trial that when the rule was enacted, there was no discussion of a legal definition of intoxicating liquor, that the words intoxicating and alcoholic were synonymous.

Justice Byron R. White: Have these children graduated now?

Mr. G. Ross Smith: Your Honor, that's not in the record.

I'll be happy to answer the question if --

Justice William J. Brennan: Well, haven't they?

Mr. G. Ross Smith: Yes, sir.

Justice Byron R. White: When is it?

Mr. G. Ross Smith: With their class.

Justice William H. Rehnquist: Their sophomore year ended June of 1972, didn't it?

Mr. G. Ross Smith: That's correct, Your Honor.

They graduated this past spring.

Chief Justice Warren E. Burger: They made up the year then.

Mr. G. Ross Smith: Yes, sir, by taking a correspondence course and one other extra course.

Justice Byron R. White: Now, let's assume for the moment -- let's assume just for the moment that the school board -- that the Court of Appeals was reversed but the case was remanded and the Court of Appeals held that there was a denial of procedure of due process, that the suspension had been imposed not in accordance with the Constitution but in violation of the Due Process Clause.

Let's just assume that.

But that, as far as they can tell, they were -- validly there was good cause to throw them out.

Mr. G. Ross Smith: I would assume that under those circumstances, there's --

Justice Byron R. White: Would there be a remedy or would --

Mr. G. Ross Smith: -- distinct possibility that the students would pursue their damage claim against the individual school board members, since they have had at least take up two extra courses at that point.

It was a serious punishment.

The point is not whether any of the federal judiciary agrees with whether it was a punishment or not.

The point is whether it's a decision that this school board is entitled to make.

The board is in a county in which the citizens of the county have made a decision that they think, possession or sale of alcoholic beverages is a serious matter.

And we submit this honorable Court should not intervene to substitute its judgment for that school board.

Chief Justice Warren E. Burger: In other words Mr. Smith the federal question does not arise out of a mere mistake of judgment by school board?M

Mr. G. Ross Smith: Yes, Your Honor.

Chief Justice Warren E. Burger: Mr. Justice Blackmun has a question for you.

Mr. G. Ross Smith: Yes, sir.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.