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University Microfilms, a XEROX Company, Ann Arbor, Michigan Il 1 I • 71^17,Q5Û I t RATLIFF, Richard Charles, 1922- I CONSTITUTIONAL RIGHTS OF COLLEGE STUDENTS A STUDY IN CASE LAW. I The University of Oklahoma, Ph.D., 1971 f Political Science, general University Microfilms, A XEROX Company, Ann Arbor, Michigan ^ Copyrighted by- Richard Charles Ratliff 1971 THIS DISSERTATION HAS BEEN MICROFILMED EXACTLY AS RECEIVED THE UNIVERSITY OF OKLAHOMA GRADUATE COLLEGE CONSTITUTIONAL RIGHTS OF COLLEGE STUDENTS --A STUDY IN CASE LAW A DISSERTATION SUBMITTED TO THE GRADUATE FACULTY in partial fulfilment of the requirements for the degree of DOCTOR OF PHILOSOPHY BY RICHARD CHARLES RATLIFF Norman, Oklahoma 1970 CONSTITUTIONAL RIGHTS OF COLLEGE STUDENTS —A STUDY IN CASE LAW APPROVED BY £0 . DISSERTATION COMMITTEE ACKNOWLEDGMENTS A considerable debt is owed by the writer to numerous persons whose inspiration, assistance, suggestions and encouragement contri­ buted substantially to the preparation of this dissertation. First to Dr. Richard S. Wells and Dr. Joseph C. Pray of the Department of Political Science, University of Oklahoma, for the direction of my efforts and their many helpful suggestions, I am most grateful. Dr. John W. Wood, Chairman of the Department of Political Science, was especially helpful with his criticism of the manuscript. The encouragement which he and Dr. Walter F. Scheffev of the same department were able to offer proved invaluable. The willing encouragement of Dr. C. Joe Holland of the School of Journalism was of great value in achieving fruition. Irving Achtenberg, Kansas City legal counsel for the American Civil Liberties Union, may never realize that his was the germinal influence. To my many students during twenty years of college teaching must go credit for the imperative which preceded the inspiration which made this study necessary. For proofreading the finished manuscript, H. H. Herbert, Emeritus Professor of Journalism, has earned the writer's profound gratitude. Gratitude is due, too, to my wife, Dorothy Claire Ratliff, for her patience as a dissertation widow, my daughter, Valerie, for leaving the door closed, and to Ketha Bollinger for typing and manuscript assistance. iii TABLE OF CONTENTS INTRODUCTION .......................................................... 1 Chapter I. HIGHER EDUCATION IN AMERICA: THE GREAT C H A N G E ...... 13 II. STUDENTS AND INSTITUTIONS: THE THEORETICAL CONTEXT.. 49 III, SCHOLARS IN COURT--SOME EARLY CASES................... 78 IV. NEGRO RIGHTS AND PRESSURE ON THE COURTS.............. 118 V. DISMISSAL AND SUSPENSION: A MANDATE FOR DUE PROCESS .... 152 VI. OTHER PROCEDURAL CONSIDERATIONS: SEARCH AND SEIZURE, SELF­ INCRIMINATION 185 VII. THE FIRST AMENDMENT AND EXPANDING SUBSTANTIVE RIGHTS .... 207 VIII. CONCLUSIONS............................................ 249 BIBLIOGRAPHY.......................................................... 264 IV INTRODUCTION On August 4, 1961, the United States Court of Appeals, Fifth Circuit, delivered a two-to-one opinion in the case of Dixon v. Alabama State Board of Education^ which declared in essence that "due process requires notice and some opportunity for hearing before students at a tax-supported college are expelled for misconduct." In finding for the expelled appellants, six Negro students, and against the state of Alabama, the court laid the foundation for a new body of case law in the federal courts. For the first time, students in their relationships with tax-supported institutions of higher learning, were held to come under the aegis of the fourteenth amendment's ban on arbitrary state action directed at individuals. Charles Alan Wright, Professor of Law at the University of Texas, has pointed out that the Dixon decision marked a rare 180-degree 2 turn in the law. This turn was dramatized by the fact that the Fifth Circuit handed down its opinion in Dixon less than two years after the Second Circuit had sustained a decision that federal 3 courts lack jurisdiction in college-discipline cases. The Fifth ^294 F.2d 150 (5th Cir.) cert denied. 368 U. S. 930 (1961). ^"The Constitution on the Campus," 22 Vanderbilt Law Review 1027 (October, 1969) . ^Steier v. N. Y. State Ed. Comm'r., 271 F.2d (2d Cir. 1959) cert denied. 381 U. S. 966 (1960). 2 Circuit not only accepted jurisdiction, but found for the plaintiffs while issuing a general caveat of procedural safeguards due college students in expulsion cases. Dixon was born of the Negro-rights demonstrations which were flaring up throughout much of the country in 1961. But the classi­ fication addressed by the Fifth Circuit's sweeping opinion was not the American Negro. It was the American college student. The significance of the Fifth Circuit's decision can be viewed from a number of different perspectives. Of undeniable primary importance is the fact that it created a new legal relationship between the American college student and the tax-supported institution-- at least insofar as disciplinary action is concerned, replacing the predominant in loco parentis and contractual concepts with a broad concept of constitutional rights for college students. As will be seen in Chapters IV and V, Dixon is most noted for its declarations that (1) students at tax-supported colleges have a property right in their status--a right which they cannot be arbi­ trarily denied; and (2) included under the penumbra of the fourteenth amendment, students at tax-supported colleges may not be required to surrender constitutional rights at the campus gate. This new rationale terminated the legal legitimacy of the predominant in loco parentis and contract concepts of the status of students at public colleges. Eight years after the Fifth Circuit handed down its opinion in Dixon, that case remained the controlling precedent for challenge to arbitrary expulsions of college students. Moreover, the constitutional- rights rationale of the student-college relationship had been effectively expanded into the arena of substantive rights for college students,^ and the Dixon precedent was being used to protect high school students against the arbitrary actions of school administrators.^ After eight years in the field, Dixon was not only being sustained as the 3 leading precedent, but had been substantially expanded by subse­ quent decisions which followed its authority.^ Dixon and subsequent decisions relying on its precedent have attracted much scholarly attention to the subject of student rights from the ranks of American legal writers. Legal journals probably published as many articles on the subject of student rights in the seven years following Dixon as they had published during the preceding four decades.^ Of significance, too, is the tone of the literature, sometimes seemingly based on an a priori of a shameless See Chapter VII, infra. The highly litigious state of student rights promptly gave birth to a monthly publication, the College Law Bulletin, issued monthly by the United States National Student Association. ^See Chapter VII, infra. 3 See esp. Esteban v. Central Missouri State College, 277 F. Supp. 649 (W. D. Mo. 1967), in which the court prescribed ten days' notice and rights to legal counsel, cross-examination and hearing record. ^Shepardizing Dixon establishes that no court has denied its authority. ^The Index to Legal Periodicals reflects no interest in the subject of student rights by legal writers prior to the case of Anthony v. Syracuse University (1927), which attracted notes in the University of Pennsylvania Law Review. New York University Law Review, Tennessee Law Review. Harvard Law Review, and Michigan Law Review. Aside from case notes, it would appear that the first indexed scholarly treatment of the general subject was Warren A. Seavey's "Dismissal of Students: 'Due Process,'"70 Harvard Law Review 1406 (1957). The Columbia Law Review did publish in 1935 "Expulsion of Students from Private Educa­ tional Institutions" (35:898); and M. M. Chambers' "Legal Right of a Student to a Diploma or a Degree" appeared in Educational Law and Admin­ istration in January, 1936. denial of basic fairness in disciplinary proceedings conducted on college campuses and an almost shocked realization that a citadel of freedom in the United States--the college campus--had timidly succumbed in a disquieting number of cases to the pressures of public opinion and administrative expediency in an aura of judicial self- restraint . If recent developments in procedural rights for college stu­ dents have constituted something of a revolution, then one might wish to grant the same status to gains scored in the area of sub­ stantive rights on the college campus. The simple truth is that college students have won impressive judicial support for their rejection of much of the paternalism that has characterized the administration of tax-supported higher education in the United States. The first amendment means much more to the college student today than it did a decade ago. Nonetheless, paternalism remains on campus. In 1967, six years after Dixon, Phillip Monypenny, Professor of Political Science at the University of Illinois, observed that, "The traditional opinion is that for the student's own protection he needs to be controlled in his choice of residences, including closing hours for women, his use of liquor, possible departures from sexual absti­ nence, his published expressions, the organizations he forms and joins . ."^ If one judges by the number of cases reaching the courts which represent paternalism, one is forced to wonder if the judicial demise federal courts have written for the in loco
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