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GREENE v. HOWARD UNIV.

August 28, 1967

JeRoyd GREENE et al., Plaintiffs,
v.
HOWARD UNIVERSITY, Defendant. Nathan HARE, Plaintiff, v. HOWARD UNIVERSITY, Defendant



The opinion of the court was delivered by: HOLTZOFF

 The primary question presented in these consolidated cases is whether the relations between a University and its students, and between a University and its faculty, are subject to judicial control; specifically, whether the termination by a University of the status of a student, or of a member of the faculty, is subject in whole or in part to judicial review.

 The defendant in these cases is Howard University an institution of higher learning located in Washington, D.C. The plaintiffs may be divided into two classes. Some of them are students, whose status was terminated by the University as of the close of the academic year ending June 30, 1967. Others are members of the faculty, who held temporary appointments for a specific period only, and whose appointments the University declined to renew. This action is brought to require the University to restore the plaintiffs to their former status. The matter is before the Court at this time on motions for a preliminary injunction to reinstate the plaintiffs pending the trial of this action.

 In view of the disposition of the issues about to be made by this Court, it would be superfluous to review in detail the incidents that led to the action taken by the University against the plaintiffs. Suffice it to say that it arose out of a series of disorders that took place on the campus of Howard University. In one instance, the head of the Selective Service System of the United States had been invited to make a speech at the University. A group of students created such a disturbance as made it impossible for him to address the audience. At another time the University authorities were about to conduct a hearing on charges of misconduct against a student. A group composed of some students and of some members of the faculty created such a commotion and uproar as to render it impracticable for the hearing to proceed. Threatening utterances were heard on the campus. Several fires took place. The University authorities concluded, after a careful and thorough investigation, that the student plaintiffs, as well as those plaintiffs who were members of the faculty, actively participated in creating these chaotic conditions and disorder. Accordingly, in an effort to bar a continuation and repetition of such disruptive incidents, the University in June 1967, sent a formal letter to each of the student plaintiffs, notifying him that he would not be permitted to return to the institution for the next academic year. The other plaintiffs were instructors, or junior professors, who had only temporary appointments without any permanent tenure. If such appointments were not renewed, their connection with the faculty would be automatically terminated at the expiration of the academic year. The University, again in June 1967, sent a letter to each of this group of plaintiffs formally notifying him that his appointment, which was about to expire on June 30, 1967, would not be renewed.

 As the questions of law relating to the two types of plaintiffs are somewhat different, we shall deal with each category separately. We shall first consider the student plaintiffs. Their complaint is predicated on the contention that they were not accorded their alleged Constitutional right to receive notices of charges and a hearing, but were dismissed from the University by ex parte decisions. The relief that they seek is to require the University to vacate its action and to give them notices of charges and a hearing.

 This contention is based on a misconception of the scope of the Bill of Rights. The procedural safeguards and the privileges accorded by the Constitution of the United States are confined solely to judicial and quasi-judicial proceedings, either in the courts or before administrative agencies. They are directed solely against Governmental action. *fn1" They do not extend to any other relation in life, such as that of parent and child, teacher and pupil, or employer and employee. These relations are of a private character. While some of them, such as that of employer and employee, may be circumscribed by contract or by statute, they are not controlled by the Constitution. For example, until the enactment of the Civil Service laws, the Federal Government had the right to discharge any of its employees at will. In fact, it may do so even now in respect to those persons who are exempt from the various limitations of the Civil Service statutes. *fn2" To take another example, arbitrary discharge of employees of private concerns may be limited by statute or by agreements between the employers and labor unions, but Constitutional restrictions are not applicable.

  Counsel for the plaintiffs rely principally on the decision of the Court of Appeals for the Fifth Circuit in Dixon v. Alabama State Board of Education, 294 F.2d 150, which held by a vote of 2 to 1, that a State College had no authority to expel a student without first giving him notice and some opportunity for a hearing. The Court referred to the State college as "a governmental body". Counsel for the student plaintiffs in the case at bar argued that there are sufficient contacts and a strong enough connection between Howard University and the Federal Government to render the principle of the Dixon case applicable. Decisions of Courts of Appeals of other circuits must be regarded with respect and may be persuasive, but they are not necessarily controlling. For the reasons about to be stated, it is not necessary, however, to determine whether the principle evolved by the Dixon case, should constitute the law in the District of Columbia.

 Unlike the college involved in the Dixon case, Howard University is not a governmental body. It is a private corporation created by an Act of Congress. True, a large percentage of its expenses are paid by annual appropriations made by Congress. As a condition of receiving such money, the Secretary of Health, Education and Welfare is given authority to visit and inspect Howard University and to control and supervise the expenditures of those funds which have been appropriated by Congress, 20 U.S.C. § 122. In addition, the President and Directors of Howard University are required to file an annual report with the Secretary. No Government officer, however, is a member of the Board of Trustees of the Institution, nor is any control over the institution vested in the Federal Government.

 The status of Howard University is not open for determination by this Court, for it has already been held by the Court of Appeals for this Circuit that the University is a private corporation and is not a public institution, Maiatico Const. Co. v. United States, 65 App.D.C. 62, 79 F.2d 418. Speaking for a unanimous bench, Groner, J., in that case wrote as follows:

 
Howard University is a private corporation. It was incorporated under an act passed March 2, 1867 (14 Stat. 438), and its charter gives it all the rights and powers usually vested in private corporations, including the right to purchase and sell real estate, and the right to contract and to sue and to be sued.

 Judge Groner then referred to the fact that in 1928, a statute was enacted enabling Congress to make annual appropriations for the support of the University. Judge Groner continued:

 
This amendment of the charter of the university goes no farther than its terms. If it successfully legalizes the appropriation out of the Treasury of money of the government in aid of a private institution, it does not, nor does it purport to, change the fundamental character of the institution or make it any the less private; for Congress has passed no law giving the Secretary of the Interior or any other officer of the government control of the university, and we think it is obvious it could not do so without the consent and approval of the corporate authorities of that institution. Hence, in the view we take, the generosity of the government is not enough in itself to change a private into a public institution.

 The Maiatico case was cited with approval and its doctrine reaffirmed and applied in Irwin v. United States, 74 App.D.C. 296, 122 F.2d 73. It is clear, therefore, that the principle which counsel for the plaintiffs seek to invoke, namely, that a Government college or university may not expel its students without notice of charges and an opportunity to be heard, is not applicable to Howard University, for it is not a public institution nor does it partake of any governmental character.

 It would be a dangerous doctrine to permit the Government to interpose any degree of control over an institution of higher learning, merely because it extends financial assistance to it. There are numerous colleges in this country, whose establishment was made financially possible by grants of land by the Federal Government. It is inconceivable that for this reason every "land grant college", as such institutions are generally denominated, should to some degree be subject to the control of the Federal Government, or that the Federal courts should be empowered to interfere with the administration of discipline, or the appointment of members of the faculty in such schools. In recent years, numerous universities, colleges and technical schools have received Governmental aid of various kinds by being granted funds to carry on scientific research projects. Surely it should not be held that any institution by entering into a contract with the United States for the conduct of some project of this sort and receiving funds for that purpose, has placed its head in a noose and subjected itself to some degree of control by the Federal Government. Such a result would be intolerable, for it would tend to hinder and control the progress of higher learning and scientific research. Higher education can flourish ...


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