Mark Stephen Shanley, by Next Friend v. Northeast Independent School District, Bexar County, Texas, Etc.

960 spiracy, court held that where all evi the acts and conduct of Newell against appellants, as consistent with innocence were inadmissible as dence is as appellate appellants duty guilt, it is the were connected them

with with judgment way respon- court to reverse of convic could not held certainly against the 52. sible for tion accused. them. There was Id. Sykes appellants also, 1963, evidence that States, v. Cir. United 8 themselves received, 232, smuggled, concealed, 235. F.2d trans- ported the marihuana. Montoya held in This court United States, appellants 847, complained The have Cir. 850: F.2d engaged illegal * * * the officers searches In order to sustain a convic- Ranch, and seizures at the Vale tion in evidence cases circumstantial of these fruits activities were inad- inferences from the be drawn against missible them at the We trial. evidence must not be consistent unnecessary deem to decide these guilt every with but inconsistent with questions in view of the conclusions hypothesis of innocence. insufficiency as to reached States, Vick v. United 216 F.2d Nor evidence. do we other reach (5th 1964); Cir. Duncan v. Unit- * * points * appellee. raised ed States F.2d 195 [357 (5th 1966)]. hold that Cir. evidence is insuffi- judgment cient to sustain the of convic- approving upholding and cases Other against appellants Schorr and Ro- States, su- Rent v. are United this rule judgment senbaum. conviction States, supra; pra; Kassin v. United appellant is, each therefore, States, McTyre 5 Cir. v. United and rendered, versed with directions to 67; United F.2d Williamson v. 213 States, judgments district court to enter 11; n. F.2d 5 Cir. acquittal. 1961, 297 States, 5 v. United Cir. Curtis States, Reversed and rendered. McMillian United States, supra; Barnes v. United 1965, 341 F.2d 189. drawn The inferences inconsistent case in this evidence in- hypothesis of every reasonable with

nocence; considering them in government, light most favorable do, Stephen SHANLEY, are as consistent Mark we must which Next Friend, al., et guilt. Under Plaintiffs- innocence as with Appellants, government circumstances, such guilty prove appellants be- failed to yond to a moral reasonable doubt and SCHOOL NORTHEAST INDEPENDENT required by certainty, TEXAS, to sustain law DISTRICT, COUNTY, BEXAR al., etc., Defendants-Appellees. conclude that et their convictions. We prove insufficient evidence to there was No. 72-1264. charged conspiracy indict- Appeals, United States Court ment. Fifth Circuit. Having prove conspiracy, failed to June 1972. government prevail cannot on the Rehearing Denied June indictment, other counts charged appellants unlawfully receiving, concealing, smuggling,

transporting the marihuana found truck at

Newell’s he the time was ar- In the absence of such a con-

rested.

9fil process applying highly colleges competitive for schol- slots days arships. The three of zeros that substantially suspensions sulted from the grade averages affected at a criti- their cal time of their educational careers. suspension The occasion of the publication and of a so- distribution “underground” newspaper called “Awakening.” entitled newspaper was au- entirely by students, thored using hours, out-of-school and without op- materials or facilities owned or system. erated The stu- Antonio, Goldstein, H. San Gerald papers dents distributed the themselves Schwartz, Tex., ACLU Leonard J. during one afternoon after school hours Columbus, Ohio, Ohio, Antonio for San morning and one before school hours. Civil Liberties Union. At all times distribution was carried on Antonio, Maury Maverick, Jr., near but premises outside the school San adjoining Tex., street, sep- the sidewalk for Texas Civil Liberties Union. by parking arated from the school lot. Antonio, Jr., Banack, Emerson San The students neither distributed en- nor Foster, Tex., defendants-appellees; for couraged any papers distribution of the Lewis, Langley, Banack, San Gardner & during school proper- hours or on school Antonio, Tex., of counsel. ty, although newspapers some of the did and WISDOM, GOLDBERG Before up turn there. absolutely There was Judges. CLARK, Circuit disruption of class that resulted from newspaper, distribution of the were nor any there disturbances whatsoever Judge: at- GOLDBERG, Circuit tributable to the distribution. ac- as a shock have come It should knowledged by all concerned this with seniors parents of five case passed the students who out Independent District School Northeast newspapers politely did so and or- Antonio, Texas, elected that their of San derly fashion. suzerainty had assumed school board “Awakening” absolutely contains The and after before their children over remotely no material that could grounds, school, and with off obscene, libelous, sidered inflamma- rights express- gard their children’s tory. fact, In content of this so- thoughts. ing it will trust that their “underground” paper called is such shock whatsoever come as no flower-like, easily surface, it could assumption of their “underground” abode. As so-called usurpa- authority an unconstitutional “underground” newspapers go, this Amendment. tion of the First probably one of the most vanilla-flavored Clyde Shanley, A. Appellants, Mark S. ever to reach a federal court. Jr., Jolly, Al- Coe, John A. E. William suspended The five students were Graham, ford, were seniors and John principal of school for violation High in the North- School MacArthur “policy” 5114.2 which reads in Independent District of San east pertinent part: they At Antonio. were least days period any dur- of three there for “Be it resolved at- save further ing suspended tempt vio- for were to avoid the school’s established lating “policy.” procedure approval Each of a school bóard for administrative production considered the students here was of activities such for as “good” pe- or “excellent” All student. were distribution distribution and/or any recom- Superintendent printed documents titions or ” specific sort, type kind, expulsion without for . mendation . . shall be principal approval of District Northeast and, suspension in the if for cause adopted “policy” 2-3, Novem- 5114.2 at judgment principal, there of the [emphasis office justification, added].1 ber for referral production 5114.2, “policy” for tivities such as the dis- in text of entire pe- appended tribution the distribution cluding on Texas statute and/or any printed “disruption,” titions or’ documents : reads as follows sort, kind, type specific Disruptive without Activities “Policies approval principal of the shall be cause Publications Unauthorised suspension judgment and, policy for if keeping this district In justification, principal proper maintain, times, there is learn- at all to ing Super- referral to the situation, for Office here- the Board of Trustees with a ex- intendent recommendation for what will be known establishes pulsion Disruptive and Un- Activities Policies on any itBe further resolved that staff Publications. authorized organiza- member who initiates his instruction several non-school Whereas supports by position publicized in- or who stu- intent his their tions any group boycotts dent or for of students who studehts volve disruptive activity focusing purpose involved shall be attention disciplinary or- action individual Su- concerns of these various perintendent ganizations and the Board Trustees. policies In disruptive addition above those on a school distraction Whereas campus specified against activities which are the achievement works objectives against and defined in House Bill 141 of the 1969 of educational Legislature (as Session the Texas the entire student the best interests of body immediately faculty following para- shown graph) any non-approved of in- shall cause in loss this school dis- Whereas suspension endangers trict time a school’s or recommendation structional ability expulsion appropriate judg- meet standards in the accreditation principal jeopardizes ment of the of scholastic the value the school con- cerned. records of all students is in existence PROHIBITING there CERTAIN Whereas DISRUP- a TIVE the District of North East IN schools ACTIVITIES PRIVATE government which for student OR PUBLIC SCHOOLS IN- structure OR opportunity provides STITUTIONS for constructive OF HIGHER EDU- in of all discussion CATION involvement students opinion, appropri- and person group per- ‘Section 1. No or topics ate and acting may willfully in sons concert en- parents students and their Whereas gage disruptive activity disrupt in or with the access to communication assembly campus proper- lawful on the or in and schools administration individual ty any private 'public or in- school or the Central Office administration with higher public stitution education or vocational and or technical school insti- in there exists each Whereas tute. many the North District schools of East (a) purposes 2. For ‘Sec. the opportunities partici- for student varied “Disruptive activity” act, means: organizations pation in school ‘(1) obstructing restraining pas- or of- the established curricular Whereas sage persons exit, entrance, in or an ferings in- of the North East District hallway any building or the au- without opportunities to de- for students clude thorization of the velop in creative communicative skill school; arts, seizing any building ‘(2) or control of any who Be it resolved that portion building purpose for the sit-in, participates boycott, in a stand- any administrative, interfering edu- walk-out, in, form of or other related cational, research, or ac- other authorized activity by this ac- shall unauthorized tivity ; suspension expul- to or pre- preventing ‘(3) attempting or sion attempt any by the threat further resolved that vent force or violence or Be it assembly any proce- au- force or violence lawful avoid the established school’s administration; approval by of ac- for administrative thorized dure hearing ly requested before and off school outside hours The students s.2 premise board, tran the full school stu by reporter at a court scribed suspen- The school board affirmed expense. request Counsel dents’ day sions one later. were and the school board students hearing. present Objecting students the school board’s boot- transmogrification argued strap con that, Super- after the board into before Parent, sulting parents attorney professor the five affected sought school, they temporary per- had concluded at a local law both injunctive regulation simply question manent next-friends that in relief apply courts, requesting did entire in the federal to conduct exercised that ‘(4) disrupting by challenge regulations, or school to force or violence however questionable, by force or lawful confrontation and suit the threat of violence a ; regulations assembly progress federal court. or are best obstructing pas- level, restraining ‘(5) left to be resolved at the local or problems any sage person where the are more familiar at an exit or entrance procedures campus property preventing those involved and the are or to said or personal. attempting prevent by asking more or or vio- The students force are. equitable nature, and, ingress relief is threats or lence or thereof any equity they suit, any person prop- egress as in must come or from said erty campus with “clean If hands.” there admin without the authorization procedures clarify istrative or to of the administration the school. chal questioned lenge regulation, Act, ‘(b) purposes then of this For any procedures assembly disrupted those tried should be first is when lawful Byrd, person incapa- Quarterman v. 4 Cir. 1971. attendance rendered Issaquena assembly participating 453 F.2d due Blackwell ble of County Board of 5 Cir. to a 1966. to the use of force or violence or due However, feel 749. reasonable fear force or violence substantially likely counsel for misrepresented to occur. person any pro- in this the students case. 3. A violates ‘Sec. who Despite questioning guilty substantial of this Act is of a misde- vision upon punishable counsel board’s hearing the school board conviction meanor suspensions, regarding a fine not to con- $200 exceed days convincingly jail students maintained they honestly finement in for not less than 10 reasonably interpreted months, nor more than 6 or both. inapplicable regulation Any person who convicted ‘Sec. violating of conduct had followed. shall course the third time of this Act addition, might eligible In even if there some thereafter be attend receiving college, university school, other internal administrative get pe- the students have used to from the State of Texas for a funds interpretation ap years an authoritative or to riod of third two such peal interpretation “policy” of regulation viction. 5114.2, Nothing and we such have no ‘Sec. 5. herein shall be appellate infringe record, upon any right there is overwhelm the strued to of free testimony ing transcript guaranteed by in the speech the of the hearing board that no such mech the the school Constitutions of United States or brought the attention ever anism State of Texas.’ judg body. parents that, of The error are advised Students engaging in their pro- the ment students to the school addition administrative consulting cedures, officials, school conduct without first deem- school wherever authorities, error in advisable, complaints if it indeed an were ed will initiate objectionable against judgment, legal any person than is much less authorities judgment persons the concomitant error HB of its who violate 141 or per board. While the students school terms.” scope recognize haps the intended failed actually applying 2. Counsel for school board insisted completely school argument out of conduct exercised his brief and oral premises, confrontation, sought the school board the students here and off recognize the bare desiring even publicity. failed to likewise the attendant If that true, when Amendment of the First the students find them- existence were would “policy” part position. precarious drafted that first It is not selves appeal. learning part process in this is involved 5114.2 which

967 entering state enjoined tions to whatever conditions from board be Board permanent Dixon wished. v. Alabama State into the students’ the zeros 150, Education, 1961, prohibiting F.2d dis- 5 Cir. 294 and from records “Awakening” denied, 368, off cert. 368 U.S. tribution paramount The 193. im 7 L.Ed.2d And hours. campus and outside school dismissing imperative portance relief, is the constitutional court denied all district “wholly constitutional boards abide case on its own motion 3 precepts: also court merit.” The district without request in- the students’ denied Amendment, “The Fourteenth as now court, junction pending appeal this applied States, protects citi- im- 62(c), and F.R.Civ.Pro. the students against zen all of itself and State emergency mediately appealed. anOn its creatures —Boards of Education expedited appeal and this court basis excepted.” entering enjoined the school from Virginia Education Board of State West suspen- zeros that resulted from the 624, 637, Barnette, 63 sions into students’ records 1178, 1185, 1637. L.Ed. S.Ct. refusing to afford reason- students “policy” insists The school board opportunity complete able and submit face” “on its both is constitutional 5114.2 academic credit the work that suspensions applied” and “as suspen- missed as a had result of the under the circumstances meted out sions, pending appeal. F.R.App.Pro. this this case. 8; 62(g).4 F.R.Civ.Pro. in sev

This ease is anomalous judicial respects, a believe-it- inter That should eral sort courts has day-to-day operations Essentially, school board or-not. fere with fossil, eminently ex platitudinous a constitutional but submitted schools is respired the First reaf stalk humed and maxim this court sound again long g., after its many once e. Amendment occasions. firmed Counsel Byars, to rest. had been laid substance Burnside v. 5 Cir. County vigorously insists 744; Issaquena for the Blackwell constitutionally em supra; Ferrell v. education Board of Amendment, solely by District, the Tenth braced Dallas entirely denied, leaving without education 392 F.2d cert. protective perimeters rest of the L.Ed.2d banc), Schmidt, a rather (en find this Constitution. We Karr v. 5 Cir. 1972 quaint approach set to the constitutional rest 451 F.2d 1023. This court laid to ting light ago Vir of education in West than a more decade the notion Barnette, ginia Board State of Education state authorities could pra; In- public-supported Des Moines Tinker v. institu- educational su regard propri- no view with to the overall 3. district court’s some- order reads as merely ety distinction, hybrid: thing part dismissal, observe F.R. “magnitude” penalty 12(b) (6), summary judg- part should of a Civ.Pro. upon gauged ment, part 56(b), the student effect “absten- F.R.Civ.Pro. part equity, simply tion,” part formula. and not meted out a denial example, suspension question jurisdiction, even one For 28 U.S.C.A. federal quite an individ- critical hour could § encompassed a if ual student that hour high provided regard discipline for to cas- final examination that With school hypothesized “make-up.” es, here that convinced one district court has are three-day suspensions “major” to these between “minor” issued the distinction subject judicial high seniors, penalties, the who were the former to five school interviewing applying presumably process de latter too to and review and the scholarships, application college constitutional admission and for minimis for for justiciable penalty Soglin Kauffman, under W.D. standards. v. constitute dichotomy. F.Supp. aff’d., “major”/“minor” Wis.1968, 978, Cir. 295 7 1969, intimate F.2d 163. we 418 While 968 1969, Dist., Community from the

dependent of conduct is removed School 733, 503, effect. L.Ed.2d school milieu 89 21 393 S.Ct. U.S. rarely 731; asserted Education school boards have v. Board of Since Brown 483, authority 1), 1954, Topeka (Brown the the breadth North- 347 U.S. 873; “policy” attempts v. 686, east School District Brown 74 S.Ct. 98 L.Ed. 1955, II), here, assert the constitutional stand- (Brown Board of Education 1083; entirely by prece- 753, 294, ards are not embraced 349 99 L.Ed. U.S. 75 S.Ct. clear, however, Bolling 497, au- Sharpe, 1954, 74 dent. It is U.S. v. 347 thority 884; Cooper v. the school board balance 693, S.Ct. 98 L.Ed. against 1401, Aaron, 1, discipline school First 1958, 78 358 U.S. S.Ct. forbidding punishing 19; Cooper, 5, 8 Amendment 3 v. L.Ed.2d Aaron off-campus activity 97; 1958, cannot exceed its Cir. F.2d Prince 261 v. Griffin authority 1964, punish on-eampus County Board, to forbid or Edward 377 School activity. 754, Therefore, 218, 1226, must ex- first U.S. 12 L.Ed.2d 84 S.Ct. authority amine of the school board cite a few Even edu cases.5 Plessy Ferguson, order the actions on progeny v. school cational grounds 1896, 537, 1138, within school hours. 41 163 16 U.S. S.Ct. 256, L.Ed. held that the in which manner certainly a a school While system operated public a state school ideas, just cer market-place it is must be review. constitutional place. The tainly educa not market g., See e. Missouri rel. v. Can ex Gaines milling, process is thwarted tional 232, 337, 1938, 83 ada, 59 U.S. S.Ct. 305 along mooing, haranguing, with Painter, 1950, 208; 339 L.Ed. v. Sweatt accompanies a aggressiveness that often 1114; L.Ed. 94 exchange of constitutionally-protected Regents, McLaurin Oklahoma State is, of There on street corner. ideas 94 course, difference between a substantive involving L.Ed. 1149. The recent cases in terms and the street schools corner “underground” newspapers or so-called weighing competing in the sometimes high expression in schools modes of other completely flow of free terests entirely to circum relate almost expression requirement and all with can a school board stances under Thus, discipline. that there order constitutionally limit give “care this court has endeavored See, premises. class hours and school recognition to differences be ful supra; g., Byars, Tinker e. Burnside v. restraints what tween are Community Independent v. Des Moines classroom and what are reasonable Dist., supra; v. Stamford School Eisner Ferrell restraints the street corner.” Board of Dist., Independent Dallas School 803; Educa F.2d Board of Scoville v. (Godbold, J., specially F.2d at 704-705 Twp., 7 Cir. Joliet concurring). high school stu Because Committee Riseman easily dents and teachers cannot disasso Quincy, Our F.2d 148. expressions 1 Cir. di ciate themselves property question rected towards them case on school involves less difficult unacceptable light agreed ple- refusal 5. The apparently court district systems. Although involving thora cases board. counsel ease, applicable citing A trial is sometimes confronted Burnside as to this court prospect applying laws from a the district court concluded: body legislative do hold court “The Court refuses four-square interpre- fit with its own Constitutional Courts Federal proper application power under intrude tations. But interfere is, systems public those circumstances to our understand- manner sovereign guiding respective ing, single important operated most orderly process principle of law and of States.” legal Anglo-Saxon Shanley back into our v. Northeast well heritage. Dist., W.D.Tex.1972, No. Case SA-72- [February 2, We find this 1972]. CA-48

ggg regulations during hours, because dis- ment that the rules and ciplinary problems school populated for not us in such a be reasonable. is must setting seriously sap such rules are to consider whether and concentrated processes, expedient merely and because but whether the high wise educational they administrators are a school teachers and compress- power responsibility of and discretion of school au- the vital the have ing subjects But, variety of of and activities thorities .... all a with mind, relatively period emphasize of time into a confined we must also rights ignore space, of of the exercise ex- school cannot ex- that pressions officials high schools, feelings pression in whether of with by others, They is to rea- not do wish to contend. cannot infringe right than sonable constraints more restrictive their students’ to normally expression limit those constraints that can free unrestricted guaranteed Amendment First freedoms.6 under the First them Constitution, Amendment where nothing is unconstitu There rights the exercise such in the that stu requirement per se in tional buildings school and schoolrooms do ad school materials dents submit materially substantially not inter- prior to distribution. ministration requirements appro- with the fere Board Eisner v. Stamford priate discipline operation in the discipline necessity supra. for Given the school.” schools, orderly processes in the Byars, Burnside v. at 748-749 require it at all unreasonable is not [emphasis added], approval cited for destined distribution materials Tinker v. Des Moines Com- to the school submitted to students be munity District, supra. As prior to distribution. administration long regulation prior approval constitutionality When operate to stifle content does not regulation questioned, it publication in unconstitu justifying settled law that burden unreasonably and is not tional manner regulation upon the school falls onerous, requirement of complex or Dis v. Des Moines School board. Tinker closely approval ap prior more would supra; Byars, supra; trict, Burnside regulation speech simply proximate Joliet v. Board Education Scoville Twp., prior is there and not a anything restraint. Nor curtailing supra.7 The test per in a rea unconstitutional se expression is wheth exercise of in-school ordering administrative sonable method or its er distributing place, time, and manner “materially and substantial of exercise premises materials on school ly” or dis activities interferes with the school hours: cipline Burnside v. of the school. See formulating including Byars, supra; regulations, In Moines v. Des “In Tinker Dist., dependent Community su pertaining discipline of those screening regu pra. children, purpose of school officials have theory, prevent lation, at is to latitude of But the least wide discretion. expression. always require- disruption and not to stifle bound alleged example, 6. For when doubt board a school unconstitutionally applied rath- board could been restrain the of in sort flammatory face: on its er than unconstitutional vitriolic exhortation that protected first, that as- Supreme it is the school since Court presumptively right Chicago, 1949, Terminiello curtail serts activity, protected bear should the board 93 L.Ed. why; establishing speaking engagement context the burden before presumably paying second, adults. led information essential activity toy be cur- had to We see reason to Tinker’s conclude placement burden on the school tailed. 970 class; disruptions no there were not Thus, does the school board jus- sort, off or in order to disturbances to meet difficult burden screening campus, related to the distribution of prior tify aof the existence “Awakening.” Shanley g., See v. Northeast See, Stamford e. Eisner rule. W.D.Tex.1972, However, Independent Dist., supra. School Education, Board 2, [February ipse dixit Case rely No. SA-72-CA-48 cannot the board impor Disruption an substan- in fact 1972]. the “material demonstrate evaluating discipline. reason tant element with school interference tial” screening or requires of a way, Tinker ableness Put another high expression. by punishing com In a protected presumably conduct by panion, prohibited Burnside, held case to this court cannot be school students presumptively-protected conduct unless there are “ by protected Burnside itself was not might reason- facts . . . First it accom Amendment when ably have led school authorities by disorderly panied and raucous dis disruption forecast substantial Issaquena Coun tribution. Blackwell v. ac- with school material interference ” ty supra. Board One week . . . tivities. Supreme after Tinker denied Court Independent Com- Des Moines Tinker v. certiorari in a that had involved case 514, munity Dist., at U.S. 393 by activity disruptive rather violent and 740, at 21 L.Ed.2d at 742. 89 S.Ct. college some The district students. First Amendment Under the court found that ex students had explication, con decisional and its privileges their ceeded constitutional high (1) expression that: clude expression, Hardway, free Barker v. S.D. prohibited alto- can school students be affirmed, W.Va.1968, 228, F.Supp. 283 substantially gether materially if it Hardway, 1968, Barker v. F.2d Cir. interferes with school activities or Supreme 638. In denial Court’s teachers, rights of other students review, Fortas, Mr. Justice who wrote dem- or if the school administration can majority Tinker, for the observed onstrate reasonable cause to believe petitioners concurrence that “the . expression engender ma- would such engaged aggressive in an and violent interference; (2) terial and substantial demonstration, peaceful and not in non- high expression can- school students disruptive expression,” Barker v. Hard prohibited solely not other be because way, 1969, 1009, teachers, students, administrators, 22 L.Ed.2d 217. disagree content; may parents expression efforts forecast” (3) The “reasonable may subjected prior ex disruption students result screening under reasonable difficult clear and a more ercise regulations; by high necessary (4) expression apply. standard school, may stay man- rea limited in that the ner, place, or time reason- dis means of “until exercise of restraint sonable equally-applied regulations. actually ruption

able and Dal Butts v. occur [s].” Dist., 5 Cir. las Accord Norton I. Discipline of East Tennessee Committee University, 6 419 F.2d Cir. State When Burnside/Tinker denied, case, cert. applied to this standards 562; Quarterman activity 26 L.Ed.2d beyond question serious Byrd, 4 54. Nor 453 F.2d approach punished, here does even specific require disruption the Constitution does and substantial” “material every regarding permutation of rule stu accompany ex that must administra dent conduct before a school pression, either fact or may prevent reasonably dis- act there were a factual matter forecast. As judgment of fore, Board ruption. Eisner v. Stamford deference to the boards, resolution refer ad hoc supra; Thurs school we Education, Richards v. of 1967, of comer of ton, 1281. The these issues to the neutral 424 F.2d 1 Cir. conclude, do how- made our “reasonableness.” We Northeast ever, of applying “reasonable that board’s burden Tinker's school task of since, demonstrating reasonableness becomes easier here test forecast” somewhat ap geometrically substance, not on decision be- does heavier its in gins upon of ma- peal suspensions on the basis focus the content to defend its obscene, potential disruptions, or actual. or libelous, terials that of either inflammatory. However, giving the benefit can be the board The best that ap in every of said concern for the administration’s of doubt in the instance rules, disciplinary topics plication in this mentioned one of its case that two of testimony “Awakening” in that there some are “controversial” we note hearing community. be axio- of the school board Yet should the record point believed nation’s his- school administration matic at our that this “Awakening” democracy tory “controversy” to of in a contents that Perhaps law, potentially disruptive.8 is, this nev- as a matter of constitutional pressed precisely point appeal on to stifle the was er sufficient and of itself fraught it is with constitutional views of citizen: because dangers. ex rel. v. Minnesota See Near vitality political in- civil and “The of 625, Olson, 283 U.S. 51 S.Ct. society depends stitutions our “Awakening” 75 L.Ed. 1357. The [I] . . . . discussion t free remotely that tains remarks could through only free debate and ex- free libelous, obscene, considered inflam- or government change of that ideas matory, protection and has been afforded responsive peo- of the mains to the will hortatory publications to than much more ple change peaceful effected. and Quarter- the one before this court. See right freely pro- speak Byrd, supra. man do not here We v. diversity programs is mote of ideas and categories delimit of materials therefore of chief distinctions one may high which a ,us apart from that sets totalitarian prior restraint regimes.” obscene, content those materials Chicago, 1949, Terminiello libelous, inflammatory, v. realize 93 L.Ed. 1134- problems require specific will in- Univ., also see Brooks v. Auburn specific judgments. dividual and There- high including may distribution 8. his One also exceed or her consti g., See, newspapers. expression e. v. Stam rights by adopting Eisner tutional Dist., supra; expression materially v. Joliet ford School Scoville method Dist., supra; Twp. v. substantially Sulivan School interferes with supra Dist., ; rights Houston with the others or conduct supra. parties Byrd, All See, g., Quarterman v. Blackwell v. school actvities. e. agree supra; ease that distribution Issaquena Board polite, orderly, “Awakening” Hardway, supra; Tate Barker v. non-disruptive. students Jonesboro, None Cir. of Education Board 1972, anyone; papers no one force tried to The more active the egress ingress attempted methodology expression, block more in were, fact, building; dis potential students interference. Al herent taking papers couraged onto the though passing newspapers is a more out grounds. The distributors the wear mode of than active newspapers “Awakening” merely Byars, handed ing buttons, see Burnside nothing them, who wished read to those supra; Des Inde Moines Tinker nothing supra, pendent Community Dist., whatsoever more. find disruptive greater followed these of distribution means therefore rights potential, is offensive to students the Tinker rationalization potentially disruptive in a ma others school dis Amendment the First way conduct applicable cipline terial substantial to vari held has been expression, activities. of school forms of active ous so-called aff’d, M.D.Ala.1969, F.Supp. 188, appears cussed. odd to us that an boggle 412 F.2d two educational 1171. The “con- institution would subjects “Awakening” “controversy” troversial” to such an extent advocating representation are a statement of mere review should regarding marijuana widely-publi- the laws and an- become informed of two cized, proffering significant widely-discussed, other statement information on, among things, citizenry other control.9 birth issues face the should allegedly outrageous prompt We find the board to stifle the content publication. Perhaps “controversial” nature of these two sub- newer jects Encouragements peculiar. rather educational theories have become vogue day, to become informed of social issues are since our but our recollection certainly “fighting learning process pur- not of of the words” is that pose Chaplinsky Hampshire, 1941, spread, not New of education is to stifle, 86 L.Ed. ideas in their and Ideas S.Ct. views. inherently only pure touching only prompt pristine words that divis- form, Indeed, disruption. children, iveness and the Pres- the minds and hearts of school Marijuana despotic dispensation ident’s Commission on has ad- must be freed from “Awakening” precisely men, they vocated what all robed as academicians judges advocate, is said Commission or citizen members of board stronger did so in of much terms. And education. librarian testified at hearing large of great number of the of One concerns our newspapers books and file for all stu- young people, time is that our disillu dents to read political deal with sioned our processes, are dis birth engaging control. We add a cas- political participation. glance any public ual at medium would important young is most our become even assure the most doubtful observer convinced that our Constitution liv is a general subjects marijuana ing reality, parchment preserved not un widely-dis- glass.10 and birth thirty ago control are rather years der Almost 10. The pressed San Antonio Free Clinic “For Marijuana Laws) marijuana all of them could “An estimated 23 million Americans have are. smoked college “Awakening” (National Organization Call D. E. F. A. G. B. Birth Control C. Food & Nutrition sk Drug Counseling assertedly objectionable parts Draft Psychological information & treatment of Y.D. General Medical Treatment ..........733-0383.” students. Under the concern at what marijuana ^[*] isn’t Washington, NORMAL Counseling read as follows: NORMAL ^[*] N For Aid including go Street Northwest.” issue, ^[*] information write for the Reform of it D. jail. believed existing C., unjust ^[*] 43% also Smoking sk of all to be laws laws ex- to “criticism” more any ramifications, compelled, enough good the criticism is irrational illuminate the issue most mode of tioned, ry, icism,” than with some constructive criticism at least not widely varying degrees whom beholder, ministration’s rationality, the school administration. is, and at the even that “negative” their credibility course, entirely then like public operation other sort of suffice justification effort actions. Without First Amendment has been criticism, “controversy,” pained criticism is surely in a students. As those to the sense to attach that much eye presumably is not a attitude of the to the criticized actors it democracy. became fixed since no discussion is the American citizen- assurance being private directed, explain overt and approach for say critique. of intention and far constitutionally questioned. the school ad- forbidding age, that aversion “Negativism” more criticism, a different we can expression. eye Of discussing newspaper will have serves to covert, upon ill-inten- But al- helpful course, bogey, “crit- say If argument Supreme But Court noted that boards of edu- or cause a disturbance. says our take must cation Constitution we ; history this says . our risk . . course, important, have, “. delicate, . . hazardous is this sort of highly discretionary func- openness freedom—this kind may they —that tions, per- but none that strength is the basis of our national Bill form within Rights. limits of vigor independence and of educating That are grow up live in Americans who young citizenship is reason relatively permissive, dis- often protection scrupulous of Constitutional putatious, society.” individual, if freedoms of the strangle free mind at Tinker not to Des Moines Com- munity youth im- to discount Dist., 737, source and teach at 508- government portant principles our at at 739.11 21 L.Ed.2d platitudes.” as mere Reasonable constitutionally preferable restraint: Virginia Board of Education West State Barnette, U.S. at speech under “[A] function free It is incredible 87 at 1637. L.Ed. government system our to invite is that the First Amendment to us 1972 dispute. may It serve its indeed best inapplicable deemed under these cir- was high purpose it condi- when induces a living students cumstances tion of creates dissatisfaction unrest, voting dying and for at threshold of they are, or even conditions country. their anger. people Speech stirs is often provocative challenging. may and potential We have discussed prejudices preconceptions strike at and deal, great for in disturbance substance unsettling profound effects designed discipline is that is what school presses acceptance itas for of an idea. prevent. However, empha we must though why speech, That freedom of in the case that even size reasonably context nevertheless absolute ... disruption per is not forecast protected against punish- censorship or prior justification se sequent punishment restraint sub for ment, likely produce a unless shown expression afford danger present clear of a serious ed to students First Amendment: above substantive evil that rises far appre- fear or “[U]ndifferentiated public inconvenience, annoyance, or enough hension of is not disturbance unrest, [citing There is cases]. right to overcome to freedom of room under our Constitution expression. Any departure from abso- more view.” restrictive regimentation may lute Any cause trouble. majority’s Chicago, variation from the at Terminiello v. 337 U.S. opinion may Any inspire word fear. S.Ct. at at see also 93 L.Ed. Tucker, class, spoken, lunchroom, or Shelton campus, on the that deviates from the L.Ed.2d 231. If the content may give person expression views of another start of a student’s could rise hair, protection length upon The First Amendment’s straint of students’ speech expression part Henry, the Bill Massie Bights precisely gov- because those for a different treatment of regulated right argument. However, erned should have the same Karr was responsibility commenting premised upon holding and even the the ma upon appointed jority long the actions of their in that hair in that governors regulators. constitutionally-protected elected mode stance expression within the contours Schmidt, supra, seriously Karr v. where First No Amendment. one But cf. majority questions newspaper pre possi is not a concluded that a bility expression sumptively-protected short-haired mode of Amendment, physically challenge long-haired students within the First acceptable prior was an reason ?. op- hold to amount to a disturbance from those who “material and substan- views, certainly posing disruption activity then within tial” of school or dis- power cipline. the regulate of the school administration time, place, and manner of Although urge the students greater even latitude distribution with necessary argument, we do not feel it of discretion. And attempt to hold that a school course, all reasonable should, of take regulate district conduct takes steps disturbances, to control however place ground off the school and outside generated. taking simply note We are pass school hours can never constitution here of the fact that disturbances them- Wright, al muster. See The Constitution wholly selves can be without reasonable on Campus, 22 This Vand.L.Rev. 1027. or rational those students basis, involving court has evaluated situations reasonably their free- who would off-campus activity required expression dom of should not be re- hearing instances, fair in such Dixon v. punishable strained at the threshold Alabama State Board su merely attempts of their pra, but we have never had occasion violent, small, perhaps because a vocal or propriety ap discuss contitutional differing group of views students with plying regulation directly a school to off-

might or does create a disturbance. campus Hous conduct. See Sullivan v. Dist., supra. realize that each situation We ton involving expression discipline will however, note, do it is not at all problems create its own of reasonable geographical unusual to allow the loca ness, not en and for that reason we do tion of the actor to determine the consti rules, protection deavor here to erect immovable tional afforded should be guidelines. only but to sketch We em example, to his her or acts. For the now- phasize, proverbial however, might must be that there “fire” be constitution give ally yelled corner, rise demonstrable factors that would on the but street any theater; the school reasonable forecast within the or a march down the ma protected and “substantial middle of a street be disruption hallway activity, terial” of school activities be while a march the down constitutionally expression may building might By fore of a not. same the great token, restrained. this court has While it is not at all unusual in our respect system ad for the abilities of intuitive that have different authorities ministrators, paramount responsibility only such freedoms for their own baili speech expression against authority sti and cannot be wicks. An offense one ground perpetrated jurisdic intuition. fled on the sole that within Thus, wholly disparage authority usually pun while we do not tion of another is High only by authority the comment of' the MacArthur ishable whose jurisdiction Thus, principal place. School assistant in this case took offense contrary opinion, could that the “attitude” of the school to the district court’s changed during might very the mini- somehow have the width of a street well engendered by assertedly crisis that was determine the breadth of the school appearance “Awakening,” authority. Students, any we (cid:127)the oth board’s citizens, subject feel certain that the school administra er civil appreciate must community, state, tion can the fact that we criminal laws viewpoint acting entirely it is substantiated unless and nation. A student objective support potentially some a rea property evidence to outside school sub disruption ject disturbing peace, sonable “forecast” laws disruption. simply inciting forth, riot, no actual There littering, and so potentially demonstable whatsoever that evidence whether or not he is surrounding regulation the dis that a school circumstances “Awakening” off-campus tribution of the amounted board wishes to extend to reasonably activity. to or could forecast In our case the distribution have been vague, entirely denial as a “Awakening” overbroad and also off-cam- was the pus procedural process. do only due so and of before was effected great regret. But was hesitation and distribution hours. after school disruption ac- do of the sound so in the interests we judicial orderly polite, no reasonably ease and fore- administration of this tually occurred Thus, might reasonably those that cases circumstances. under the seeable “policy” question. In exercise arise under here hold we case, fact, authority school board does board this school disciplinary arguments appeal primary “policy” was not base its aegis 5114.2 under upon potential disruption of prohibit and or actual unconstitutionally applied to Rather, First board activities. presumptively-protected punish place suspensions of took chooses assert that the Amendment simply “sub- these five are valid be- off-campus students entirely and without allegedly disruption violated cause the students and material” stantial regula- “policy” Especially if the activities, or reason- 5114.2. actual either school ably-foreseeable. punishment, tion is the sole rationale Therefore, the North- regulation en- the stitutionally must have a rationale District Independent School east entering upon the sufficient on face. zeros joined from Eisner supra. Board of five students Stamford of these permanent records suspen- the unlawful from resulted preventing from sions argues for the board Counsel making up missed work from appeal up- should be enjoin the decline to suspensions. We facially held inter- it could because prohibiting distribu- school board preted in a manner. Counsel “Awakening” under tion of proceeds to then advocate need see circumstances, we all interpretation thoroughly unrea- equitable bases the traditional under Passing sonable. over the that the fact injunction protective to issue remedies against appeal relied to this made weAs the board. degree upon conditional remarkable balancing ex- opinion, clear in “could,” simply it is verb note discipline is an pression and that dem- school board’s own actions judgment administrations for school regu- convincingly onstrate most that the boards, subject only to the consti- vague, and, lation therefore, both overbroad and requirement reasonableness tutional constitutionally infirm on decline We the circumstances. under attempt way, it face. Put another the school every conjure transcribe response in- board’s to the circumstances possible permutation of circumstances volved in the distribution the “Awak- “Awak- garding the distribution ening” that us counsel has convinced complete ening,” faith and we urging in students is correct admin- the school board and the school approach “policy” facial 5114.2 every to abide effort will make istration required of this court. by Constitution. regulation conclude that the We (1) purports is overbroad: because it II. prior any to establish a on restraint However, expression by under the circum and all means appeal, case and this part stances of the written word on compelled proceed any are further with school students time Recognizing “policy” place any reason; close (2) 5114.2. and for be as distinction between “unconstitutional it cause contains no standards whatso “facially applied” might guide principals unconstitutional ever which overbroad,” screenings com “peti arewe nevertheless their administrative pelled regulation ques printed any kind, to declare or tions documents of facially as both sort, type.” unconstitutional or absolutely broad, re There is no this is I up think it is left to a quirement “policy” good Principal’s judgment. 5114.2 that ap- For proscribed attempting pub proval, any activity of far publication, as “any printed lish or miles, feet, blocks, distribute docu time and or any way ment” interpreting relate in if this is you whatsoever what maintaining orderly up good judgment conduct of school it is left regulation question The activities. the school administrator.” facially does not lend limi itself hearing At the district court the school geog intent, time, tation in raphy terms superintendent generally agreed with this principal to what should be its scope policy. assessment sound concern—the administration of the repeat derogate dowe true, It is as the school school. board “good judgment of the school adminis- appeal, expres on that freedom of insists any way trator” whatsoever. But expres not an sion is absolute loosely Constitution in- can be more must, occasion, sion be balanced terpreted because the motivations be- against other constitutional considera infringement benign. may hind its insisting However, in tions. that ex part “policy” 'Becausethat 5114.2 that pression be “balanced” publication deals with the and distribu- neglects suggest what the ballast materials, tion of its terms and scales the other side the constitutional interpreta- the announced administrative The in Eisner should be. Circuit Second it, sweeps protected accorded tions activ- Education, supra, Board v. Stamford wholly ity context outside regulation regarding prior confronted a along proscribed activity, “pol- publications and restraints on student implied icy” facially overbroad unconstitu- there tional to that Koota, See Zwickler v. extent. matter on its face as a constitutional 88 S.Ct. regulation in But the overbreadth. 444; Thompson, 5 19 L.Ed.2d Hobbs v. school-oriented, Eisner was at least see also 448 F.2d life-away- “policy” whereas 5114.2 is Button, 1963, NAACP v. regulatory: from-home 328, 9 L.Ed.2d 405. policy “The any way does not [of Eisner] facially “policy” is also over- free- with students’ interfere there are no standards broad because ma- dom to disseminate and to receive may principal whatsoever property; nor terial outside of school publication accept reject a student interfere does threaten to appears that some or distribution. parents predominate responsibility of political petitions na- or documents of a for their children’s welfare.” ture, regarding pending school bond Board of Eisner v. Stamford at MacArthur election, were distributed [emphasis in If 440 F.2d at 808 text]. blessing High and even with the limiting language in there were some encouragement of the administration the “policy,” very in much the we would be absolute- We have and the school board. ly holding. pretermit clined to this Un discerning on what basis way no of limitation, fortunately there is no such accepted while documents were those and the school action here board’s “Awakening” why not, or a stu- was the regarding the confirmed our fears worst may pass Antonio the “San dent Light,” around interpretation that could of variations might of have number which regulation. questioned pervert the When stories or advocative informational hearing regarding the at the schoolboard control, marijuana or or on laws birth prin “policy,” scope assistant of the subject, but any “controversial” other High re cipal School of MacArthur “Awakening.” doubt do not not the sponded : existing con- any in manner good tinuing adminis- any publication the school faith of “I think attempt- in school board presented us and since and the be to tration should activity of ing discipline means administration school to enforce discipline. fact, prin- In “policy” our constitutional But assistant 5114.2. High cipal any permit MacArthur system does not interrogation administrator, ceded under hearing at the board well-inten- however or handing impera- Time tioned, that one student the unaccountable to be magazine can- without the to another student of our children. We tor the lives presump- permission principal to of the the Constitution not withdraw from training tively 5114.2, “policy” in violation of the intellectual the extent that agreed utterly escapes superintendent school-aged minds “policy” rights responsi- with that of the evaluation First Amendment hearing. po- court See Eisner district The mere bilities. statement contemplated Education, supra, for penumbral Stamford Board of tential invasion very vagueness discussion of a similar “policy” shudders conscience this problem. If the school board here can First Amendment of those to whom strength negated punish students on this It can benevo- sacred. regulation satraps passing though misguided, for out lent, perhaps blunderbuss any printed grounds, remedy matter, our In to off school schools. order any hours, overbreadth, the thrust outside school and without element of guide- disruptions whatsoever, why question then can- “policy” must include in punish stating cri- not clear demonstrable the school board also lines should student hands to another administrators who a Bible teria that school Saturday Sunday student on morn- materials submitted utilize to evaluate long good ing, in faith? prior and distribu- as it does so to them for clearance temptation prob- to In earlier We resist the answer. tion. We discussed regulate remedy policy attempts vagueness, its lems involved order guidelines sake, question in ing must include stat- for content’s content emphasize only relationship preven- point en- between the it at this courage to seek of “distribution” and board admin- or curtailment tion prob- prevention of these content of material and substan- istrative resolution disruption federal reach the lems before cases tial school activities remedy. “policy” Commit- courts. Riseman seeks See supra. Quincy, tee Finally, we must conclude addition, In we must conclude regulation question is unconstitu question is unconstitution- process. There tional as a matter due nor, vague 5114.2, ally prohibi- provision “policy” blanket because the against “attempts knowledge, our other “distributions” allowing regulation, appeal any rea- from the does reflect distribute” not sonable, principal decision of the school standards of constitutional specifying applied permit time or- First Amendment as distribution principal derly period ac- or the appellate language “policy” must make their deci 5114.2 tivities. The calling regarding exer The occasions is intended “distribu- sions. what speech protected cise of forms of men various tion” is such that reasonable clarity differed, fleeting, lack differ and have but can screening delay substantially implementation should differ danger regulations meaning. carry Connally Con- the inherent v. General speech Co., struction during Baggett altogether period its v. chilled see also L.Ed. 70 Imprecision delay importance. serve Bullitt, 84 S.Ct. U.S. intimation, con to underscore the fact There is 12 L.Ed.2d 377. petty any pro- ideal requirement, stitutional can be thwarted alone a let frustrating experience ways, de a must interfere scribed “distribution” regulation way mocracy. Any proposes a material and substantial publications discipline. to screen and to sift out The First Amendment can- un- distributable to school students not tolerate such intolerance. This case regulation purporting prevent entry der a is therefore reversed for or- of an disrup- opinion. substantial and der not inconsistent material with this clearly (1) state the means must: Reversed. pro- are to which students submit posed principal or school materials to the Judge CLARK, (specially Circuit administration; (2) state brief curring) : during period of reasonable time which Judge Goldberg’s I concur all of principal or administration must opinion except portion II Part clearly decisions; (3) make their state holding process requires that due appellate mechanism and its reasonable only provide school authorities not methodology; (4) state a brief decisionmaking prompt administrative appeal reasonable time process expres- Mary- Freedman v. must be decided. sion, but also that must create land, appellate administrative mechanism 649; see also v. L.Ed.2d Eisner Stam- part process. of such review Stacy supra; ford Board of Although agree I if school au- ap- (three-judge Williams, N.D.Miss.1969 v. provide thorities for administrative “pol- court), F.Supp. 963. Because peals, appeals prompt such must be icy” pro- 5114.2 contains none these decision and I procedure, safeguards, can cedural and because we agree do not appeal procedures that such administrative regulation in be- find the record no other constitutionally safeguards, fore us that contains such bound to exist. “policy” 5114.2 uncon- must be declared pur- on its it stitutional face insofar as

ports pro- restrain without timely appeal. vision for administrative

Tinker’s dam to school board abso dry

lutism does not leave the fields discipline. gone This court has a considerable distance with the school Harry re ESTATE A. In uphold disciplinary boards fiats TOULMIN, Jr. g., where See, e. reasonable. Blackwell TOULMIN, Executrix, Virginia Bernthal Issaquena Dist., supra; v. Karr cf. Plaintiff-Appellant, Schmidt, supra; Ferrell Dallas In dependent Dist., supra. Tinker America, UNITED STATES simply irrigates, floods, rather than Defendant-Appellee. discipline. fields of school It sets canals 71-1666, Nos. 71-1739. through and channels which school dis cipline possible flow'with the least Appeals, United States Court of damage priceless topsoil to the nation’s Sixth Circuit. Perhaps of the First Amendment. June would if be well those entrusted to ad teaching minister the of American his tory government to our students be gan by practicing their efforts the docu govern history ment on which that eighteen-year-olds ment are based. Our vote, juries,

can now serve on and be drafted; yet the board fears “awak

ening” of their intellects without rea upon

soned concern for its effect

Case Details

Case Name: Mark Stephen Shanley, by Next Friend v. Northeast Independent School District, Bexar County, Texas, Etc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 29, 1972

Citation: 462 F.2d 960

Docket Number: 72-1264

Court Abbreviation: 5th Cir.