Jones v. State Board of Education of Tennessee

PETITIONER:Jones
RESPONDENT:State Board of Education of Tennessee
LOCATION:Vale Residence

DOCKET NO.: 731
DECIDED BY: Burger Court (1969-1970)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 397 US 31 (1970)
ARGUED: Jan 19, 1970 / Jan 20, 1970
DECIDED: Feb 24, 1970

Facts of the case

Question

  • Oral Argument – January 19, 1970 (Part 1)
  • Audio Transcription for Oral Argument – January 19, 1970 (Part 1) in Jones v. State Board of Education of Tennessee

    Audio Transcription for Oral Argument – January 20, 1970 (Part 2) in Jones v. State Board of Education of Tennessee

    Warren E. Burger:

    The state board of education, where we left off yesterday afternoon.

    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 —

    John M. Harlan II:

    There were additional findings of the violation for regulations?

    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 —

    John M. Harlan II:

    Supposing this temperate document that had been passed around speaks exactly about diversity.

    What would you say about that?

    Robert H. Roberts:

    I should call the events —

    John M. Harlan II:

    — still a justice on the [Inaudible]

    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.

    Hugo L. Black:

    What do you mean by the boycott part?

    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.

    Potter Stewart:

    And when was this —

    Robert H. Roberts:

    This happened on the —

    Potter Stewart:

    — that they handed out this?

    Robert H. Roberts:

    On August the 18 to which was the last day of the —

    Potter Stewart:

    Summer term.

    Robert H. Roberts:

    — summer term, yes sir, the — they have two terms during the summer there and operate on the quarter hour basis.

    John M. Harlan II:

    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?

    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.

    Warren E. Burger:

    Mr. Boult, you have about nine minutes left.

    Reber F. Boult, Jr.:

    Yes, Your Honor.

    Thurgood Marshall:

    [Inaudible]

    Reber F. Boult, Jr.:

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

    Thurgood Marshall:

    Is it in the record, any place?

    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 —

    Thurgood Marshall:

    If it is to be un-contradicted in the record?

    Reber F. Boult, Jr.:

    Certainly.

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

    Thurgood Marshall:

    And it was a part of the charge against it?

    Reber F. Boult, Jr.:

    It was a part of the charge against it.

    Thurgood Marshall:

    And it wasn’t answered?

    Reber F. Boult, Jr.:

    There was no conviction so to speak of the Faculty Advisory Committee on these charges.

    Thurgood Marshall:

    Well, it’s not sufficient to discipline them, to be convicted in the criminal court?

    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 —

    Thurgood Marshall:

    Does it violate these rules found on pages 75 or not?

    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.

    Thurgood Marshall:

    It was not found?

    Reber F. Boult, Jr.:

    It was not, the conviction was not found.

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

    Thurgood Marshall:

    But that doesn’t appear in the record.

    Reber F. Boult, Jr.:

    Yes it does, I believe Your Honor at page 48.

    Hugo L. Black:

    What is happened since?

    Reber F. Boult, Jr.:

    I don’t know Your Honor.

    Hugo L. Black:

    You don’t know?

    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.

    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 —

    Reber F. Boult, Jr.:

    Well, they did not dismiss him from school for that charge.

    They’re up —

    Warren E. Burger:

    — to have it adequate other examples.

    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.

    Warren E. Burger:

    But is the conduct in which these criminal charges developed on the campus or off the campus?

    Reber F. Boult, Jr.:

    Off the campus, totally unrelated to campus.

    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?

    Reber F. Boult, Jr.:

    It depends on the conduct Your Honor.

    Reber F. Boult, Jr.:

    This particular conduct, I would say not.

    Hugo L. Black:

    What was it?

    Reber F. Boult, Jr.:

    Disorderly conduct.

    Hugo L. Black:

    What was it?

    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.

    Hugo L. Black:

    Just an argument?

    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.

    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?

    Reber F. Boult, Jr.:

    That’s correct.

    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?

    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.

    Potter Stewart:

    Well you —

    Reber F. Boult, Jr.:

    If —

    Potter Stewart:

    — so far as they given the — well —

    Reber F. Boult, Jr.:

    If on the other hand —

    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.

    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?

    Potter Stewart:

    Now he was charged, he was totally charge for including those criminal convictions?

    Reber F. Boult, Jr.:

    Yes, but not convicted, not disciplined for it, not told that he had been found guilty of it.

    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?

    Reber F. Boult, Jr.:

    I don’t think that issue is in case Your Honor.

    Hugo L. Black:

    Well, that’s what they found him guilty of?

    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.

    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?

    Reber F. Boult, Jr.:

    It’s just to analogize to the outside world, it would a perjury proceeding.

    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?

    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.

    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?

    Reber F. Boult, Jr.:

    Not at all Mr. Justice Black.

    Hugo L. Black:

    Well, that’s what they said here?

    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 —

    Hugo L. Black:

    When you talk — you mean to have to charge him in advance?

    Reber F. Boult, Jr.:

    At least —

    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?

    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 —

    Hugo L. Black:

    What case has held to contrary, I’m just curious?

    Reber F. Boult, Jr.:

    Excuse me?

    Hugo L. Black:

    What case has held to the contrary?

    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.

    John M. Harlan II:

    Any of those in this Court?

    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.

    William J. Brennan, Jr.:

    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?

    Reber F. Boult, Jr.:

    The cafeteria worker testified at his hearing in his presence —

    William J. Brennan, Jr.:

    Was the cafeteria worker — was he represented by counsel at the hearing?

    Reber F. Boult, Jr.:

    Mr. Jones?

    William J. Brennan, Jr.:

    Yes.

    Reber F. Boult, Jr.:

    Yes.

    William J. Brennan, Jr.:

    And with that witness from the cafeteria cross examined?

    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.

    William J. Brennan, Jr.:

    What about the president of the university, he testified at his hearing?

    Reber F. Boult, Jr.:

    He testified.

    William J. Brennan, Jr.:

    And was he cross examined?

    Reber F. Boult, Jr.:

    He was cross examined.

    It appears in the record at page 154.

    William J. Brennan, Jr.:

    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.

    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.

    William J. Brennan, Jr.:

    Well was surely, he must have known that the hearing itself that the issue of his veracity was in the case?

    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 —

    Warren E. Burger:

    Do you want us to reexamine the issue of credibility in this Court?

    Reber F. Boult, Jr.:

    I don’t think it’s all necessary Your Honor.

    I think every examination of credibility —

    William J. Brennan, Jr.:

    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?

    Reber F. Boult, Jr.:

    And when the — yes, and when the question is —

    William J. Brennan, Jr.:

    And you suggest that was not a basis for its action in imposing discipline?

    Reber F. Boult, Jr.:

    I don’t think a man can be disciplined for defending himself.

    Warren E. Burger:

    You mean he’s got a license to lie in his defense with impunity, could that be the essence?

    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.

    Warren E. Burger:

    That’s the new proceeding you think like a perjury proceeding in the criminals case.

    Reber F. Boult, Jr.:

    I think so, Your Honor.

    Hugo L. Black:

    What kind of school is it?

    Reber F. Boult, Jr.:

    It’s a state university for Negroes.

    Hugo L. Black:

    State what?

    Reber F. Boult, Jr.:

    A state university for Negroes since —

    Hugo L. Black:

    How many people are on it?

    Reber F. Boult, Jr.:

    By terms of the —

    Hugo L. Black:

    Are the instructors colored or white?

    Reber F. Boult, Jr.:

    Largely, roughly 80% Negro I think, it has since been put under desegregation plan.

    Hugo L. Black:

    What was the president of the school who testified?

    Reber F. Boult, Jr.:

    He was Negro.

    Warren E. Burger:

    Thank you for your submission.

    The case is submitted.