The opinion of the court was delivered by: KNAPP
OPINION DISMISSING ACTION
Whitman Knapp, District Judge.
Six United States Military Academy cadets who for all intents and purposes have been separated from the Academy
for violation of the Cadet Honor Code
bring this action for preliminary and permanent injunctive relief against the Superintendent of the Academy and the Commandant of Cadets. They seek a judgment declaring unconstitutional the procedures which have resulted in their imminent separation and an order directing that they not be separated unless and until they are found by constitutionally adequate procedures to deserve such separation. This court's jurisdiction is conceded. At oral argument of plaintiffs' motion for a preliminary injunction held on June 7, 1973 the parties agreed pursuant to Fed. R. Civ. P. 65(a)(2) to consolidate the hearing on that motion with trial on the merits. As both sides have chosen to rely on affidavits and other documents rather than to call witnesses, the posture of the action is in effect that of one where both parties seek summary judgment. For the reasons that follow, I find that no relief is warranted and dismiss the complaint.
In view of the fact that events at West Point have in recent days generated a fair amount of publicity and litigation only tangentially related to the case at bar, it is helpful to isolate the precise issues before me and to emphasize what is not now before me. I begin with a narrative of the facts leading up to this lawsuit.
On April 5 and 6, 1973 the Physics Department at West Point held examinations in four courses. The students in each course were divided into sections, to which examinations were given at different times. Identical short-answer questions were used for each section but the order in which the questions appeared was scrambled for the test given at a later hour. Each of the plaintiffs took his test at one of the later hours, and turned in a paper showing so high a correlation to the correct answers for the earlier examination as strongly to suggest advance knowledge of the correct answers to the earlier examination. The matter was accordingly referred to the Cadet Honor Committee, which is the cadets' self-policing body to be described fully later on.
Between April 15 and April 30, 1973 each of the plaintiffs was contacted by an Honor Committee representative and told to appear before the Committee for a hearing on the possible Honor Code violation. The hearings were held, and each plaintiff was found to have cheated on the physics examination.
As a consequence of the Honor Committee's adverse finding, plaintiffs were to some degree isolated from their classmates and placed under a fair amount of restrictions pending the convening of board of officers to conduct de novo hearings as to whether or not they had cheated. Those hearings were held and, in every case, the board of officers found that the cadets had cheated. All plaintiffs with the exception of Harold Bunzmann, who has now resigned from the Academy, face formal separation from West Point. Their only chances of forestalling that concededly drastic result lie in the almost negligible possibility that the Secretary of the Army will decide to waive his own regulation requiring automatic expulsion
, or in a finding by this Court that the process just summarized violated the United States Constitution.
Article 16 of the Regulations for the United States Military Academy, promulgated by the Secretary of the Army, governs separations of cadets. Section 16.04, dealing specifically with separations for Honor Code violations, provides:
a) A cadet who violates the Cadet Honor Code will be separated from the Academy. A cadet who is alleged to have violated the Honor Code may, at the discretion of the Superintendent, be allowed to resign, be tried by court-martial, or be brought before a board of senior officers convened by the Superintendent to investigate the matter and to make findings. In the event of trial, the action taken will be in accordance with the provisions of the Uniform Code of Military Justice, and applicable regulations.
b) If the cadet appears before a board of officers, the board will make findings with respect to all alleged violations of the Cadet Honor Code by the cadet concerned, and will submit a report of its proceedings and findings to the Superintendent. A copy of the report will be furnished to the respondent, who may submit a written statement to the Superintendent.
c) The Superintendent may seek the advice of any member of his staff or the Academic Board. He will review the report of proceedings; give full consideration to any statement submitted by the respondent; and approve or disapprove, in whole or in part, the findings of the board of officers. If he approves a finding of a violation of the Cadet Honor Code, he will submit his recommendation and all pertinent documents to Headquarters, Department of the Army, for final action. In such cases, and in cases of cadets who are allowed to resign, the Superintendent will also recommend either discharge from the service or transfer to an appropriate status in a Regular or Reserve component. If discharge is recommended, the type discharge will be specified.
Nothing in this section indicates that the student Honor Committee must play an essential part -- or any part whatever -- in the process of separation for Honor Code violations. However, it appears from affidavits and from a Memorandum issued by Lieut. Col. Henry S. Larsen (defendants' Exhibit A) that the Academy has developed the practice of referring all apparent violations of the Honor Code to the Honor Committee for initial action; and that, in normal course, clearance by the Committee will put the matter at rest. Paragraph 2(c) of Lieut. Col. Larsen's Memorandum provides that:
An apparent violation of the Cadet Honor Code discovered by an officer will be reported to the Head of the Department or Activity, who will in turn refer the matter to the Deputy Commandant of Cadets who will refer it to the Chairman, Cadet Honor Committee.
Army Regulation No. 15-6, Procedure For Investigating Officers and Boards of Officers Conducting Investigations, sets forth comprehensive rules governing boards of officers such as those convened to hear the instant plaintiffs' cases. The regulation in general contemplates full trial-type hearings; it provides generously for the rights of persons under investigation, establishes that "substantial evidence" be the appropriate evidentiary standard; and it mandates the statement of clear ...