Case Name: TINKER V. DES MOINES SCHOOL DIST., 393 U.S. 503

TINKER ET AL. V. DES MOINES INDEPENDENT COMMUNITY SCHOOL

DISTRICT ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT.

NO. 21. ARGUED NOVEMBER 12, 1968.-- DECIDED FEBRUARY 24,

1969.

PETITIONERS, THREE PUBLIC SCHOOL PUPILS IN DES MOINES, IOWA, WERE SUSPENDED FROM SCHOOL FOR WEARING BLACK ARMBANDS TO PROTEST THE GOVERNMENT'S POLICY IN VIETNAM. THEY SOUGHT NOMINAL DAMAGES AND AN INJUNCTION AGAINST A REGULATION THAT THE RESPONDENTS HAD PROMULGATED BANNING THE WEARING OF ARMBANDS. THE DISTRICT COURT DISMISSED THE COMPLAINT ON THE GROUND THAT THE REGULATION WAS WITHIN THE BOARD'S POWER, DESPITE THE ABSENCE OF ANY FINDING OF SUBSTANTIAL INTERFERENCE WITH THE CONDUCT OF SCHOOL ACTIVITIES. THE COURT OF APPEALS, SITTING EN BANC, AFFIRMED BY AN EQUALLY DIVIDED COURT. HELD:

1. IN WEARING ARMBANDS, THE PETITIONERS WERE QUIET AND PASSIVE. THEY WERE NOT DISRUPTIVE AND DID NOT IMPINGE UPON THE RIGHTS OF OTHERS. IN THESE CIRCUMSTANCES, THEIR CONDUCT WAS WITHIN THE PROTECTION OF THE FREE SPEECH CLAUSE OF THE FIRST AMENDMENT AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH. PP. 505-506.

2. FIRST AMENDMENT RIGHTS ARE AVAILABLE TO TEACHERS AND STUDENTS, SUBJECT TO APPLICATION IN LIGHT OF THE SPECIAL CHARACTERISTICS OF THE SCHOOL ENVIRONMENT. PP. 506-507.

3. A PROHIBITION AGAINST EXPRESSION OF OPINION, WITHOUT ANY EVIDENCE THAT THE RULE IS NECESSARY TO AVOID SUBSTANTIAL INTERFERENCE WITH SCHOOL DISCIPLINE OR THE RIGHTS OF OTHERS, IS NOT PERMISSIBLE UNDER THE FIRST AND FOURTEENTH AMENDMENTS. PP. 507-514.

383 F.2D 988, REVERSED AND REMANDED.

MR. JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT.

PETITIONER JOHN F. TINKER, 15 YEARS OLD, AND PETITIONER CHIRSTOPHER ECKHARDT, 16 YEARS OLD, ATTENDED HIGH SCHOOLS IN DES MOINES, IOWA. PETITIONER MARY BETH TINKER, JOHN'S SISTER, WAS A 13-YEAR-OLD STUDENT IN JUNIOR HIGH SCHOOL.

IN DECEMBER 1965 A GROUP OF ADULTS AND STUDENTS IN DES MOINES HELD A MEETING AT THE ECKHARDT HOME. THE GROUP DETERMINED TO PUBLICIZE THEIR OBJECTIONS TO THE HOSTILITIES IN VIETNAM AND THEIR SUPPORT FOR A TRUCE BY WEARING BLACK ARMBANDS DURING THE HOLIDAY SEASON AND BY FASTING ON DECEMBER 16 AND NEW YEAR'S EVE. PETITIONERS AND THEIR PARENTS HAD PREVIOUSLY ENGAGED IN SIMILAR ACTIVITIES, AND THEY DECIDED TO PARTICIPATE IN THE PROGRAM.

THE PRINCIPALS OF THE DES MOINES SCHOOLS BECAME AWARE OF THE PLAN TO WEAR ARMBANDS. ON DECEMBER 14, 1965, THEY MET AND ADOPTED A POLICY THAT ANY STUDENT WEARING AN ARMBAND TO SCHOOL WOULD BE ASKED TO REMOVE IT, AND IF HE REFUSED HE WOULD BE SUSPENDED UNTIL HE RETURNED WITHOUT THE ARMBAND. PETITIONERS WERE AWARE OF THE REGULATION THAT THE SCHOOL AUTHORITIES ADOPTED.

ON DECEMBER 16, MARY BETH AND CHRISTOPHER WORE BLACK ARMBANDS TO THEIR SCHOOLS. JOHN TINKER WORE HIS ARMBAND THE NEXT DAY. THEY WERE ALL SENT HOME AND SUSPENDED FROM SCHOOL UNTIL THEY WOULD COME BACK WITHOUT THEIR ARMBANDS. THEY DID NOT RETURN TO SCHOOL UNTIL AFTER THE PLANNED PERIOD FOR WEARING ARMBANDS HAD EXPIRED-- THAT IS, UNTIL AFTER NEW YEAR'S DAY.

THIS COMPLAINT WAS FILED IN THE UNITED STATES DISTRICT COURT BY PETITIONERS, THROUGH THEIR FATHERS, UNDER SEC. 1983 OF TITLE 42 OF THE UNITED STATES CODE. IT PRAYED FOR AN INJUNCTION RESTRAINING THE RESPONDENT SCHOOL OFFICIALS AND THE RESPONDENT MEMBERS OF THE BOARD OF DIRECTORS OF THE SCHOOL DISTRICT FROM DISCIPLINING THE PETITIONERS, AND IT SOUGHT NOMINAL DAMAGES. AFTER AN EVIDENTIARY HEARING THE DISTRICT COURT DISMISSED THE COMPLAINT. IT UPHELD THE CONSTITUTIONALITY OF THE SCHOOL AUTHORITIES' ACTION ON THE GROUND THAT IT WAS REASONABLE IN ORDER TO PREVENT DISTURBANCE OF SCHOOL DISCIPLINE. 258 F.SUPP. 971 (1966). THE COURT REFERRED TO BUT EXPRESSLY DECLINED TO FOLLOW THE FIFTH CIRCUIT'S HOLDING IN A SIMILAR CASE THAT THE WEARING OF SYMBOLS LIKE THE ARMBANDS CANNOT BE PROHIBITED UNLESS IT "MATERIALLY AND SUBSTANTIALLY INTERFERES) WITH THE REQUIREMENTS OF APPROPRIATE DISCIPLINE IN THE OPERATION OF THE SCHOOL." BURNSIDE V. BYARS, 363 F.2D 744, 749 (1966). /1/

ON APPEAL, THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT CONSIDERED THE CASE EN BANC. THE COURT WAS EQUALLY DIVIDED, AND THE DISTRICT COURT'S DECISION WAS ACCORDINGLY AFFIRMED, WITHOUT OPINION. 383 F.2D 988 (1967). WE GRANTED CERTIORARI. 390 U.S. 942 (1968).

I.

THE DISTRICT COURT RECOGNIZED THAT THE WEARING OF AN ARMBAND FOR THE PURPOSE OF EXPRESSING CERTAIN VIEWS IS THE TYPE OF SYMBOLIC ACT THAT IS WITHIN THE FREE SPEECH CLAUSE OF THE FIRST AMENDMENT. SEE WEST VIRGINIA V. BARNETTE, 319 U.S. 624 (1943); STROMBERG V. CALIFORNIA, 283 U.S. 359 (1931). CF. THORNHILL V. ALABAMA, 310 U.S. 88 (1940); EDWARDS V. SOUTH CAROLINA, 372 U.S. 229 (1963); BROWN V. LOUISIANA, 383 U.S. 131 (1966). AS WE SHALL DISCUSS, THE WEARING OF ARMBANDS IN THE CIRCUMSTANCES OF THIS CASE WAS ENTIRELY DIVORCED FROM ACTUALLY OR POTENTIALLY DISRUPTIVE CONDUCT BY THOSE PARTICIPATING IN IT. IT WAS CLOSELY AKIN TO "PURE SPEECH" WHICH, WE HAVE REPEATEDLY HELD, IS ENTITLED TO COMPREHENSIVE PROTECTION UNDER THE FIRST AMENDMENT. CF. COX V. LOUISIANA, 379 U.S. 536, 555 (1965); ADDERLEY V. FLORIDA, 385 U.S. 39 (1966).

FIRST AMENDMENT RIGHTS, APPLIED IN LIGHT OF THE SPECIAL CHARACTERISTICS OF THE SCHOOL ENVIRONMENT, ARE AVAILABLE TO TEACHERS AND STUDENTS. IT CAN HARDLY BE ARGUED THAT EITHER STUDENTS OR TEACHERS SHED THEIR CONSTITUTIONAL RIGHTS TO FREEDOM OF SPEECH OR EXPRESSION AT THE SCHOOLHOUSE GATE. THIS HAS BEEN THE UNMISTAKABLE HOLDING OF THIS COURT FOR ALMOST 50 YEARS. IN MEYER V. NEBRASKA, 262 U.S. 390 (1923), AND BARTELS V. IOWA, 262 U.S. 404 (1923), THIS COURT, IN OPINIONS BY MR. JUSTICE MCREYNOLDS, HELD THAT THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT PREVENTS STATES FROM FORBIDDING THE TEACHING OF A FOREIGN LANGUAGE TO YOUNG STUDENTS. STATUTES TO THIS EFFECT, THE COURT HELD, UNCONSTITUTIONALLY INTERFERE WITH THE LIBERTY OF TEACHER, STUDENT, AND PARENT. /2/ SEE ALSO PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510 (1925); WEST VIRGINIA V. BARNETTE, 319 U.S. 624 (1943); MCCOLLUM V. BOARD OF EDUCATION, 333 U.S. 203 (1948); WIEMAN V. UPDEGRAFF, 344 U.S. 183, 195 (1952) (CONCURRING OPINION); SWEEZY V. NEW HAMPSHIRE, 354 U.S. 234 (1957); SHELTON V. TUCKER, 364 U.S. 479, 487 (1960); ENGEL V. VITALE, 370 U.S. 421 (1962); KEYISHIAN V. BOARD OF REGENTS, 385 U.S. 589, 603 (1967); EPPERSON V. ARKANSAS, ANTE, P. 97 (1968).

IN WEST VIRGINIA V. BARNETTE, SUPRA, THIS COURT HELD THAT UNDER THE FIRST AMENDMENT, THE STUDENT IN PUBLIC SCHOOL MAY NOT BE COMPELLED TO SALUTE THE FLAG. SPEAKING THROUGH MR. JUSTICE JACKSON, THE COURT SAID:

"THE FOURTEENTH AMENDMENT, AS NOW APPLIES TO THE STATES,
PROTECTS THE CITIZEN AGAINST THE STATE ITSELF AND ALL OF ITS
CREATURES-- BOARDS OF EDUCATION NOT EXCEPTED. THESE HAVE, OF
COURSE, IMPORTANT, DELICATE, AND HIGHLY DISCRETIONARY FUNCTIONS,
BUT NONE THAT THEY MAY NOT PERFORM WITHIN THE LIMITS OF THE BILL
OF RIGHTS. THAT THEY ARE EDUCATING THE YOUNG FOR CITIZENSHIP IS
REASON FOR SCRUPULOUS PROTECTION OF CONSTITUTIONAL FREEDOM OF THE
INDIVIDUAL, IF WE ARE NOT TO STRANGLE THE FREE MIND AT ITS SOURCE
AND TEACH YOUTH TO DISCOUNT IMPORTANT PRINCIPLES OF OUR
GOVERNMENT AS MERE PLATITUDES." 319 U.S.,AT 637.

ON THE OTHER HAND, THE COURT HAS REPEATEDLY EMPHASIZED THE NEED FOR AFFIRMING THE COMPREHENSIVE AUTHORITY OF THE STATES AND OF SCHOOL OFFICIALS, CONSISTENT WITH FUNDAMENTAL CONSTITUTIONAL SAFEGUARDS, TO PRESCRIBE AND CONTROL CONDUCT IN THE SCHOOLS. SEE EPPERSON V. ARKANSAS, SUPRA, AT 104; MEYER V. NEBRASKA, SUPRA, AT 402. OUR PROBLEM LIES IN THE AREA WHERE STUDENTS IN THE EXERCISE OF FIRST AMENDMENT RIGHTS COLLIDE WITH THE RULES OF THE SCHOOL AUTHORITIES.

II.

THE PROBLEM POSED BY THE PRESENT CASE DOES NOT RELATE TO REGULATION OF THE LENGTH OF SKIRTS OR THE TYPE OF CLOTHING, TO HAIR STYLE, OR DEPORTMENT. CF. FERRELL V. DALLAS INDEPENDENT SCHOOL DISTRICT, 392 F.2D 697 (1968); PUGSLEY V. SELLMEYER, 158 ARK. 247, 250 S.W. 538 (1923). IT DOES NOT CONCERN AGGRESSIVE, DISRUPTIVE ACTION OR EVEN GROUP DEMONSTRATIONS. OUR PROBLEM INVOLVES DIRECT, PRIMARY FIRST AMENDMENT RIGHTS AKIN TO "PURE SPEECH."

THE SCHOOL OFFICIALS BANNED AND SOUGHT TO PUNISH PETITIONERS FOR A SILENT, PASSIVE EXPRESSION OF OPINION, UNACCOMPANIED BY ANY DISORDER OR DISTURBANCE ON THE PART OF PETITIONERS. THERE IS HERE NO EVIDENCE WHATEVER OF PETITIONERS' INTERFERENCE, ACTUAL OR NASCENT, WITH THE SCHOOLS' WORK OR OF COLLISION WITH THE RIGHTS OF OTHER STUDENTS TO BE SECURE AND TO BE LET ALONE. ACCORDINGLY, THIS CASE DOES NOT CONCERN SPEECH OR ACTION THAT INTRUDES UPON THE WORK OF THE SCHOOLS OR THE RIGHTS OF OTHER STUDENTS.

ONLY A FEW OF THE 18,000 STUDENTS IN THE SCHOOL SYSTEM WORE THE BLACK ARMBANDS. ONLY FIVE STUDENTS WERE SUSPENDED FOR WEARING THEM. THERE IS NO INDICATION THAT THE WORK OF THE SCHOOLS OR ANY CLASS WAS DISRUPTED. OUTSIDE THE CLASSROOMS, A FEW STUDENTS MADE HOSTILE REMARKS TO THE CHILDREN WEARING ARMBANDS, BUT THERE WERE NO THREATS OR ACTS OF VIOLENCE ON SCHOOL PREMISES.

THE DISTRICT COURT CONCLUDED THAT THE ACTION OF THE SCHOOL AUTHORITIES WAS REASONABLE BECAUSE IT WAS BASED UPON THEIR FEAR OF A DISTURBANCE FROM THE WEARING OF THE ARMBANDS. BUT, IN OUR SYSTEM, UNDIFFERENTIATED FEAR OR APPREHENSION OF DISTURBANCE IS NOT ENOUGH TO OVERCOME THE RIGHT TO FREEDOM OF EXPRESSION. ANY DEPARTURE FROM ABSOLUTE REGIMENTATION MAY CAUSE TROUBLE. ANY VARIATION FROM THE MAJORITY'S OPINION MAY INSPIRE FEAR. ANY WORD SPOKEN, IN CLASS, IN THE LUNCHROOM, OR ON THE CAMPUS, THAT DEVIATES FROM THE VIEWS OF ANOTHER PERSON MAY START AN ARGUMENT OR CAUSE A DISTURBANCE. BUT OUR CONSTITUTION SAYS WE MUST TAKE THIS RISK, TERMINIELLO V. CHICAGO, 337 U.S. 1 (1949); AND OUR HISTORY SAYS THAT IT IS THIS SORT OF HAZARDOUS FREEDOM-- THIS KIND OF OPENNESS-- THAT IS THE BASIS OF OUR NATIONAL STRENGTH AND OF THE INDEPENDENCE AND VIGOR OF AMERICANS WHO GROW UP AND LIVE IN THIS RELATIVELY PERMISSIVE, OFTEN DISPUTATIOUS SOCIETY.

IN ORDER FOR THE STATE IN THE PERSON OF SCHOOL OFFICIALS TO JUSTIFY PROHIBITION OF A PARTICULAR EXPRESSION OF OPINION, IT MUST BE ABLE TO SHOW THAT ITS ACTION WAS CAUSED BY SOMETHING MORE THAN A MERE DESIRE TO AVOID THE DISCOMFORT AND UNPLEASANTNESS THAT ALWAYS ACCOMPANY AN UNPOPULAR VIEWPOINT. CERTAINLY WHERE THERE IS NO FINDING AND NO SHOWING THAT ENGAGING IN THE FORBIDDEN CONDUCT WOULD "MATERIALLY AND SUBSTANTIALLY INTERFERE WITH THE REQUIREMENTS OF APPROPRIATE DISCIPLINE IN THE OPERATION OF THE SCHOOL," THE PROHIBITION CANNOT BE SUSTAINED. BURNSIDE V. BYARS, SUPRA, AT 749.

IN THE PRESENT CASE, THE DISTRICT COURT MADE NO SUCH FINDING, AND OUR INDEPENDENT EXAMINATION OF THE RECORD FAILS TO YIELD EVIDENCE THAT THE SCHOOL AUTHORITIES HAD REASON TO ANTICIPATE THAT THE WEARING OF THE ARMBANDS WOULD SUBSTANTIALLY INTERFERE WITH THE WORK OF THE SCHOOL OR IMPINGE UPON THE RIGHTS OF OTHER STUDENTS. EVEN AN OFFICIAL MEMORANDUM PREPARED AFTER THE SUSPENSION THAT LISTED THE REASONS FOR THE BAN ON WEARING THE ARMBANDS MADE NO REFERENCE TO THE ANTICIPATION OF SUCH DISRUPTION. /3/

ON THE CONTRARY, THE ACTION OF THE SCHOOL AUTHORITIES APPEARS TO HAVE BEEN BASED UPON AN URGENT WISH TO AVOID THE CONTROVERSY WHICH MIGHT RESULT FROM THE EXPRESSION, EVEN BY THE SILENT SYMBOL OF ARMBANDS, OF OPPOSITION TO THIS NATION'S PART IN THE CONFLAGRATION IN VIETNAM. /4/ IT IS REVEALING, IN THIS RESPECT, THAT THE MEETING AT WHICH THE SCHOOL PRINCIPALS DECIDED TO ISSUE THE CONTESTED REGULATION WAS CALLED IN RESPONSE TO A STUDENT'S STATEMENT TO THE JOURNALISM TEACHER IN ONE OF THE SCHOOLS THAT HE WANTED TO WRITE AN ARTICLE ON VIETNAM AND HAVE IT PUBLISHED IN THE SCHOOL PAPER. (THE STUDENT WAS DISSUADED. /5/ )

IT IS ALSO RELEVANT THAT THE SCHOOL AUTHORITIES DID NOT PURPORT TO PROHIBIT THE WEARING OF ALL SYMBOLS OF POLITICAL OR CONTROVERSIAL SIGNIFICANCE. THE RECORD SHOWS THAT STUDENTS IN SOME OF THE SCHOOLS WORE BUTTONS RELATING TO NATIONAL POLITICAL CAMPAIGNS, AND SOME EVEN WORE THE IRON CROSS, TRADITIONALLY A SYMBOL OF NAZISM. THE ORDER PROHIBITING THE WEARING OF ARMBANDS DID NOT EXTEND TO THESE. INSTEAD, A PARTICULAR SYMBOL-- BLACK ARMBANDS WORN TO EXHIBIT OPPOSITION TO THIS NATION'S INVOLVEMENT IN VIETNAM-- WAS SINGLED OUT FOR PROHIBITION. CLEARLY, THE PROHIBITION OF EXPRESSION OF ONE PARTICULAR OPINION, AT LEAST WITHOUT EVIDENCE THAT IT IS NECESSARY TO AVOID MATERIAL AND SUBSTANTIAL INTERFERENCE WITH SCHOOLWORK OR DISCIPLINE, IS NOT CONSTITUTIONALLY PERMISSIBLE.

IN OUR SYSTEM, STATE-OPERATED SCHOOLS MAY NOT BE ENCLAVES OF TOTALITARIANISM. SCHOOL OFFICIALS DO NOT POSSESS ABSOLUTE AUTHORITY OVER THEIR STUDENTS. STUDENTS IN SCHOOL AS WELL AS OUT OF SCHOOL ARE "PERSONS" UNDER OUR CONSTITUTION. THEY ARE POSSESSED OF FUNDAMENTAL RIGHTS WHICH THE STATE MUST RESPECT, JUST AS THEY THEMSELVES MUST RESPECT THEIR OBLIGATIONS TO THE STATE. IN OUR SYSTEM, STUDENTS MAY NOT BE REGARDED AS CLOSED-CIRCUIT RECIPIENTS OF ONLY THAT WHICH THE STATE CHOOSES TO COMMUNICATE. THEY MAY NOT BE CONFINED TO THE EXPRESSION OF THOSE SENTIMENTS THAT ARE OFFICIALLY APPROVED. IN THE ABSENCE OF A SPECIFIC SHOWING OF CONSTITUTIONALLY VALID REASONS TO REGULATE THEIR SPEECH, STUDENTS ARE ENTITLED TO FREEDOM OF EXPRESSION OF THEIR VIEWS. AS JUDGE GEWIN, SPEAKING FOR THE FIFTH CIRCUIT, SAID, SCHOOL OFFICIALS CANNOT SUPPRESS "EXPRESSIONS OF FEELINGS WITH WHICH THEY DO NOT WISH TO CONTEND." BURNSIDE V. BYARS, SUPRA, AT 749.

IN MYER V. NEBRASKA, SUPRA, AT 402, MR. JUSTICE MCREYNODLS EXPRESSED THIS NATION'S REPUDIATION OF THE PRINCIPLE THAT A STATE MIGHT SO CONDUCT ITS SCHOOLS AS TO "FOSTER A HOMOGENEOUS PEOPLE." HE SAID:

"IN ORDER TO SUBMERGE THE INDIVIDUAL AND DEVELOP IDEAL CITIZENS, SPARTA ASSEMBLED THE MALES AT SEVEN INTO BARRACKS AND INTRUSTED THEIR SUBSEQUENT EDUCATION AND TRAINING TO OFFICIAL GUARDIANS. ALTHOUGH SUCH MEASURES HAVE BEEN DELIBERATELY APPROVED BY MEN OF GREAT GENIUS, THEIR IDEAS TOUCHING THE RELATION BETWEEN INDIVIDUAL AND STATE WERE WHOLLY DIFFERENT FROM THOSE UPON WHICH OUR INSTITUTIONS REST; AND IT HARDLY WILL BE AFFIRMED THAT ANY LEGISLATURE COULD IMPOSE SUCH RESTRICTIONS UPON THE PEOPLE OF A STATE WITHOUT DOING VIOLENCE TO BOTH LETTER AND SPIRIT OF THE CONSTITUTION. THIS PRINCIPLE HAS BEEN REPEATED BY THIS COURT ON NUMEROUS OCCASIONS DURING THE INTERVENING YEARS. IN KEYISHIAN V. BOARD OF REGENTS, 385 U.S. 589, 603, MR. JUSTICE BRENNAN, SPEAKING FOR THE COURT, SAID:

"'THE VIGILANT PROTECTION OF CONSTITUTIONAL FREEDOMS IS NOWHERE MORE VITAL THAN IN THE COMMUNITY OF AMERICAN SCHOOLS.' SHELTON V. TUCKER, (364 U.S. 479,) AT 487. THE CLASSROOM IS PECULIARLY THE 'MARKETPLACE OF IDEAS.' THE NATION'S FUTURE DEPENDS UPON LEADERS TRAINED THROUGH WIDE EXPOSURE TO THAT ROBUST EXCHANGE OF IDEAS WHICH DISCOVERS TRUST 'OUT OF A MULTITUDE OF TONGUES, (RATHER) THAN THROUGH ANY KIND OF AUTHORITATIVE SELECTION.'" THE PRINCIPLE OF THESE CASES IS NOT CONFINED TO THE SUPERVISED AND ORDAINED DISCUSSION WHICH TAKES PLACE IN THE CLASSROOM. THE PRINCIPAL USE TO WHICH THE SCHOOLS ARE DEDICATED IS TO ACCOMODATE STUDENTS DURING PRESCRIBED HOURS FOR THE PURPOSE OF CERTAIN TYPES OF ACTIVITIES. AMONG THOSE ACTIVITIES IS PERSONAL INTERCOMMUNICATION AMONG THE STUDENTS. /6/ THIS IS NOT ONLY AN INEVITABLE PART OF THE PROCESS OF ATTENDING SCHOOL; IT IS ALSO AN IMPORTANT PART OF THE EDUCATIONAL PROCESS. A STUDENT'S RIGHTS, THEREFORE, DO NOT EMBRACE MERELY THE CLASSROOM HOURS. WHEN HE IS IN THE CAFETERIA, OR ON THE PLAYING FIELD, OR ON THE CAMPUS DURING THE AUTHORIZED HOURS, HE MAY EXPRESS HIS OPINIONS, EVEN ON CONTROVERSIAL SUBJECTS LIKE THE CONFLICT IN VIETNAM, IF HE DOES SO WITHOUT "MATERIALLY AND SUBSTANTIALLY INTERFERING) WITH THE REQUIREMENTS OF APPROPRIATE DISCIPLINE IN THE OPERATION OF THE SCHOOL" AND WITHOUT COLLIDING WITH THE RIGHTS OF OTHERS. BURNSIDE V. BYARS, SUPRA, AT 749. BUT CONDUCT BY THE STUDENT, IN CLASS OR OUT OF IT, WHICH FOR ANY REASON-- WHETHER IT STEMS FROM TIME, PLACE, OR TYPE OF BEHAVIOR-- MATERIALLY DISRUPTS CLASSWORK OR INVOLVES SUBSTANTIAL DISORDER OR INVASION OF THE RIGHTS OF OTHERS IS, OF COURSE, NOT IMMUNIZED BY THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF SPEECH. CF. BLACKWELL V. ISSAQUENA COUNTY BOARD OF EDUCATION, 363 F.2D 749 (C.A. 5TH CIR. 1966).

UNDER OUR CONSTITUTION, FREE SPEECH IS NOT A RIGHT THAT IS GIVEN ONLY TO BE SO CIRCUMSCRIBED THAT IT EXISTS IN PRINCIPLE BUT NOT IN FACT. FREEDOM OF EXPRESSION WOULD NOT TRULY EXIST IF THE RIGHT COULD BE EXERCISED ONLY IN AN AREA THAT A BENEVOLENT GOVERNMENT HAS PROVIDED AS A SAFE HAVEN FOR CRACKPOTS. THE CONSTITUTION SAYS THAT CONGRESS (AND THE STATES) MAY NOT ABRIDGE THE RIGHT TO FREE SPEECH. THIS PROVISION MEANS WHAT IT SAYS. WE PROPERLY READ IT TO PERMIT REASONABLE REGULATION OF SPEECH-CONNECTED ACTIVITIES IN CAREFULLY RESTRICTED CIRCUMSTANCES. BUT WE DO NOT CONFINE THE PERMISSIBLE EXERCISE OF FIRST AMENDMENT RIGHTS TO A TELEPHONE BOOTH OR THE FOUR CORNERS OF A PAMPHLET, OR TO SUPERVISED AND ORDAINED DISCUSSION IN A SCHOOL CLASSROOM.

IF A REGULATION WERE ADOPTED BY SCHOOL OFFICIALS FORBIDDING DISCUSSION OF THE VIETNAM CONFLICT, OR THE EXPRESSION BY ANY STUDENT OF OPPOSITION TO IT ANYWHERE ON SCHOOL PROPERTY EXCEPT AS PART OF A PRESCRIBED CLASSROOM EXERCISE, IT WOULD BE OBVIOUS THAT THE REGULATION WOULD VIOLATE THE CONSTITUTIONAL RIGHTS OF STUDENTS, AT LEAST IF IT COULD NOT BE JUSTIFIED BY A SHOWING THAT THE STUDENTS' ACTIVITIES WOULD MATERIALLY AND SUBSTANTIALLY DISRUPT THE WORK AND DISCIPLINE OF THE SCHOOL. CF. HAMMOND V. SOUTH CAROLINA STATE COLLEGE, 272 F.SUPP. 947 (D.C.S.C. 1967) (ORDERLY PROTEST MEETING ON STATE COLLEGE CAMPUS); DICKEY V. ALABAMA STATE BOARD OF EDUCATION, 273 F.SUPP. 613 (D.C.M.D. ALA. 1967) (EXPULSION OF STUDENT EDITOR OF COLLEGE NEWSPAPER). IN THE CIRCUMSTANCES OF THE PRESENT CASE, THE PROHIBITION OF THE SILENT, PASSIVE "WITNESS OF THE ARMBANDS," AS ONE OF THE CHILDREN CALLED IT, IS NO LESS OFFENSIVE TO THE CONSTITUTION'S GUARANTEES.

AS WE HAVE DISCUSSED, THE RECORD DOES NOT DEMONSTRATE ANY FACTS WHICH MIGHT REASONABLY HAVE LED SCHOOL AUTHORITIES TO FORECAST SUBSTANTIAL DISRUPTION OF OR MATERIAL INTERFERENCE WITH SCHOOL ACTIVITIES, AND NO DISTURBANCES OR DISORDERS ON THE SCHOOL PREMISES IN FACT OCCURRED. THESE PETITIONERS MERELY WENT ABOUT THEIR ORDAINED ROUND IN SCHOOL. THEIR DEVIATION CONSISTED ONLY IN WEARING ON THEIR SLEEVE A BAND OF BLACK CLOTH, NOT MORE THAN TWO INCHES WIDE. THEY WORE IT TO EXHIBIT THEIR DISAPPROVAL OF THE VIETNAM HOSTILITIES AND THEIR ADVOCACY OF A TRUCE, TO MAKE THEIR VIEWS KNOWN, AND, BY THEIR EXAMPLE, TO INFLUENCE OTHERS TO ADOPT THEM. THEY NEITHER INTERRUPTED SCHOOL ACTIVITIES NOR SOUGHT TO INTRUDE IN THE SCHOOL AFFAIRS OR THE LIVES OF OTHERS. THEY CAUSED DISCUSSION OUTSIDE OF THE CLASSROOMS, BUT NO INTERFERENCE WITH WORK AND NO DISORDER. IN THE CIRCUMSTANCES, OUR CONSTITUTION DOES NOT PERMIT OFFICIALS OF THE STATE TO DENY THEIR FORM OF EXPRESSION.

WE EXPRESS NO OPINION AS TO THE FORM OF RELIEF WHICH SHOULD BE GRANTED, THIS BEING A MATTER FOR THE LOWER COURTS TO DETERMINE. WE REVERSE AND REMAND FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

REVERSED AND REMANDED.

/1/ IN BURNSIDE, THE FIFTH CIRCUIT ORDERED THAT HIGH SCHOOL AUTHORITIES BE ENJOINED FROM ENFORCING A REGULATION FORBIDDING STUDENTS TO WEAR "FREEDOM BUTTONS." IT IS INSTRUCTIVE THAT IN BLACKWELL V. ISSAQUENA COUNTY BOARD OF EDUCATION, 363 F.2D 749 (1966), THE SAME PANEL ON THE SAME DAY REACHED THE OPPOSITE RESULT ON DIFFERENT FACTS. IT DECLINED TO ENJOIN ENFORCEMENT OF SUCH A REGULATION IN ANOTHER HIGH SCHOOL WHERE THE STUDENTS WEARING FREEDOM BUTTONS HARASSED STUDENTS WHO DID NOT WEAR THEM AND CREATED MUCH DISTURBANCE.

/2/ HAMILTON V. REGENTS OF UNIV. OF CAL., 293 U.S. 245 (1934), IS SOMETIMES CITED FOR THE BROAD PORPOSITION THAT THE STATE MAY ATTACH CONDITIONS TO ATTENDANCE AT A STATE UNIVERSITY THAT REQUIRE INDIVIDUALS TO VIOLATE THEIR RELIGIOUS CONVICTIONS. THE CASE INVOLVED DISMISSAL OF MEMBERS OF A RELIGIOUS DENOMINATION FROM A LAND GRANT COLLEGE FOR REFUSAL TO PARTICIPATE IN MILITARY TRAINING. NARROWLY VIEWED, THE CASE TURNS UPON THE COURT'S CONCLUSION THAT MERELY REQUIRING A STUDENT TO PARTICIPATE IN SCHOOL TRAINING IN MILITARY "SCIENCE" COULD NOT CONFLICT WITH HIS CONSTITUTIONALLY PROTECTED FREEDOM OF CONSCIENCE. THE DECISION CANNOT BE TAKEN AS ESTABLISHING THAT THE STATE MAY IMPOSE AND ENFORCE ANY CONDITIONS THAT IT CHOOSES UPON ATTENDANCE AT PUBLIC INSTITUTIONS OF LEARNING, HOWEVER VIOLATIVE THEY MAY BE OF FUNDAMENTAL CONSTITUTIONAL GUARANTEES. SEE, E.G., WEST VIRGINIA V. BARNETTE, 319 U.S. 624 (1943); DIXON V. ALABAMA STATE BOARD OF EDUCATION, 294 F.2D 150 (C.A. 5TH CIR. 1961); KNIGHT V. STATE BOARD OF EDUCATION, 200 F.SUPP. 174 (D.C.M.D. TENN. 1961); DICKEY V. ALABAMA STATE BOARD OF EDUCATION, 273 F.SUPP. 613 (D.C.M.D. ALA. 1967). SEE ALSO NOTE, UNCONSTITUTIONAL CONDITIONS, 73 HARV.L.REV. 1595 (1960); NOTE, ACADEMIC FREEDOM, 81 HARV.L.REV. 1045 (1968).

/3/ THE ONLY SUGGESTIONS OF FEAR OF DISORDER IN THE REPORT ARE THESE:

"A FORMER STUDENT OF ONE OF OUR HIGH SCHOOLS WAS KILLED IN VIET NAM. SOME OF HIS FRIENDS ARE STILL IN SCHOOL AND IT WAS FELT THAT IF ANY KIND OF A DEMONSTRATION EXISTED, IT MIGHT EVOLVE INTO SOMETHING WHICH WOULD BE DIFFICULT TO CONTROL."

"STUDENTS AT ONE OF THE HIGH SCHOOLS WERE HEARD TO SAY THEY WOULD WEAR ARM BANDS OF OTHER COLORS IF THE BLACK BANDS PREVAILED."

MOREOVER, THE TESTIMONY OF SCHOOL AUTHORITIES AT TRIAL INDICATES THAT IT WAS NOT FEAR OF DISRUPTION THAT MOTIVATED THE REGULATION PROHIBITING THE ARMBANDS; THE REGULATION WAS DIRECTED AGAINST "THE PRINCIPLE OF THE DEMONSTRATION" ITSELF. SCHOOL AUTHORITIES SIMPLY FELT THAT "THE SCHOOLS ARE NO PLACE FOR DEMONSTRATIONS," AND IF THE STUDENTS "DIDN'T LIKE THE WAY OUR ELECTED OFFICIALS WERE HANDLING THINGS, IT SHOULD BE HANDLED WITH THE BALLOT BOX AND NOT IN THE HALLS OF OUR PUBLIC SCHOOLS."

/4/ THE DISTRICT COURT FOUND THAT THE SCHOOL AUTHORITIES, IN PROHIBITING BLACK ARMBANDS, WERE INFLUENCED BY THE FACT THAT "(THE VIET NAM WAR AND THE INVOLVEMENT OF THE UNITED STATES THEREIN HAS BEEN THE SUBJECT OF A MAJOR CONTROVERSY FOR SOME TIME. WHEN THE ARM BAND REGULATION INVOLVED HEREIN WAS PROMULGATED, DEBATE OVER THE VIET NAM WAR HAD BECOME VEHEMENT IN MANY LOCALITIES. A PROTEST MARCH AGAINST THE WAR HAD BEEN RECENTLY HELD IN WASHINGTON, D.C. A WAVE OF DRAFT CARD BURNING INCIDENTS PROTESTING THE WAR HAD SWEPT THE COUNTRY. AT THAT TIME TWO HIGHLY PUBLICIZED DRAFT CARD BURNING CASES WERE PENDING IN THIS COURT. BOTH INDIVIDUALS SUPPORTING THE WAR AND THOSE OPPOSING IT WERE QUITE VOCAL IN EXPRESSING THEIR VIEWS." 258 F.SUPP.,AT 972 973.

/5/ AFTER THE PRINCIPALS' MEETING, THE DIRECTOR OF SECONDARY EDUCATION AND THE PRINCIPAL OF THE HIGH SCHOOL INFORMED THE STUDENT THAT THE PRINCIPALS WERE OPPOSED TO PUBLICATION OF HIS ARTICLE. THEY REPORTED THAT "WE FELT THAT IT WAS A VERY FRIENDLY CONVERSATION, ALTHOUGH WE DID NOT FEEL THAT WE HAD CONVINCED THE STUDENT THAT OUR DECISION WAS A JUST ONE."

/6/ IN HAMMOND V. SOUTH CAROLINA STATE COLLEGE, 272 F.SUPP. 947 (D.C.S.C. 1967), DISTRICT JUDGE HEMPHILL HAD BEFORE HIM A CASE INVOLVING A MEETING ON CAMPUS OF 300 STUDENTS TO EXPRESS THEIR VIEWS ON SCHOOL PRACTICES. HE POINTED OUT THAT A SCHOOL IS NOT LIKE A HOSPITAL OR A JAIL ENCLOSURE. CF. COX V. LOUISIANA, 379 U.S. 536 (1965); ADDERLEY V. FLORIDA, 385 U.S. 39 (1966). IT IS A PUBLIC PLACE, AND ITS DEDICATION TO SPECIFIC USES DOES NOT IMPLY THAT THE CONSTITUTIONAL RIGHTS OF PERSONS ENTITLED TO BE THERE ARE TO BE GAUGED AS IF THE PREMISES WERE PURELY PRIVATE PROPERTY. CF. EDWARDS V. SOUTH CAROLINA, 372 U.S. 229 (1963); BROWN V. LOUISIANA, 383 U.S. 131 (1966).

[Extensive concurring and dissenting text by each Justice followed this ruling, but the ruling stood as detailed above.]

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