Summary
upholding student suspensions for the use of profanity and vulgarity appearing in off-campus newspaper distributed just outside main campus gate given several instances of classroom disruption after distribution of newspaper
Summary of this case from Killion v. Franklin Regional School Dist.Opinion
No. 69-2327.
December 17, 1969.
John D. Maharg, County Counsel, James W. Briggs, Asst. County Counsel, and Elaine M. Grillo, Deputy County Counsel, Los Angeles, Cal., for defendants.
Joel R. Strote and Martin Z. N. Katz, Beverly Hills, Cal., for plaintiffs.
MEMORANDUM OPINION FOR USE IN PREPARATION OF PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT.
Norma J. Baker and Paul David Schaffner, as guardians ad litem for their minor sons, David Keith Baker and William Alan Schaffner, said minor sons hereafter referred to as plaintiffs, complain of violation of the civil rights of their sons and for injunctive and declaratory relief under Title 42, United States Code, §§ 1981 and 1983, and Title 28, United States Code, § 2201.
William Schaffner, then a senior, and student body president of Earl Warren High School, was, on November 10, 1969, suspended from school for ten school days for use of "profanity or vulgarity" (Pltfs' Ex. 5), appearing in an off campus newspaper published by the plaintiffs.
David Baker, at the time a senior, and president of the senior class, was likewise suspended from school for ten school days on November 10, 1969, for the same reason. [Pltf's Ex. 6.]
Both boys were also removed from their school offices.
The reports on the suspensions given to the plaintiffs gave the reason for their suspensions and were issued in compliance with the Education Code of California, Sections 10602-10609. These reports on the suspensions (Exs. 5 and 6) were forms completed by the principal, Mr. A.H. Shiney, who testified that the said forms had been drafted and in use prior to his becoming principal some two years ago.
The plaintiffs and their parents were advised by the school authorities that the boys were removed from their student offices because of their failure to comply with their oath of office.
I solemnly promise that I will do my best to fulfill the requirements of the office to which I have been elected by the students of Warren Senior High School, that I will uphold and support the rules and regulations of the student body and the school, and I will set an example in scholarship and leadership which will be a pattern for conduct among the students and do everything within my power to uphold the highest standards of the school.
Since November, 1968, the plaintiffs had jointly written, published and distributed to the students of Warren High School an off-campus newspaper entitled "Oink". Twelve issues were so published and distributed, nine of said issues before the controversial issue (Ex. 4), which, as the other issues, was distributed to students entering the campus for morning classes during the period from about 7:30 A.M. until the first class convened at 8:00 A.M. The distribution of all issues of Oink was made by plaintiffs by handing copies to students just outside the main gate to the campus. On November 5, 1969, copies of Exhibit 4 were being handed to students in that location by plaintiff Schaffner. Plaintiff Baker was standing nearby but inside the gate. Some 450 copies of Oink were given to students as they entered the campus on the morning of November 5, 1969. Copy of Exhibit 4 appears as an appendix hereto.
Warren High School has an enrollment of about 2300 students with a faculty of 95 teachers. Dr. Finch, with many years experience in the field of education, is the Superintendent of the Downey Unified School District in which Warren High School is located. Mr. A.H. Shiney, also an experienced educator, has been principal of Warren High School for approximately two years. He has had some nineteen years experience in the School District. Mr. Thomas H. Robinson, in his eighth year at Warren High School, is the Assistant Principal. The ages of the students range from 13 to 19 years.
The plaintiffs contend that they were illegally suspended for the following reasons: (1) violation of their rights to free speech under the First Amendment of the United States Constitution, (2) without due process of law, (3) that the suspensions were for "habitual" profanity or vulgarity under the provisions of Section 10602, California Education Code, whereas, if it be assumed, arguendo, that their constitutional rights to free speech were not violated, any profanity and vulgarity on their part was not "habitual" and that the said Code section sets forth the exclusive grounds for suspension for profanity or vulgarity, (4) that the plaintiffs did not violate their oath of office and their removal from office was not justified, and (5) there was no distribution of Oink on campus.
§ 10602. Continued willful disobedience, habitual profanity or vulgarity, * * * at any time or place shall constitute good cause for suspension or expulsion from school; however, no pupil shall be suspended or expelled unless the conduct for which he is to be disciplined is related to school activity or school attendance. * * *.
Defendants urge (a) that the November 5, 1969, issue of Oink (Ex. 4) contained profane and vulgar words in the Farber article appearing on the third and fourth pages, as well as in the advertisement on the second page, and vulgar retouching of what appears to be a photograph of President Nixon, a part of said advertisement, by the adding and positioning of a finger, (b) that the suspensions were not in violation of the plaintiffs' right to free speech but were within the authority of the High School administrators in performance of their obligation and duty to maintain a proper educational program with the necessary control and discipline of students to assure its success and to insure the careful supervision of the moral conditions in their school, as required by paragraph 24, Title 5, California Administrative Code, (c) that the due process prescribed by Section 10607 is sufficient in the circumstances and that no other proceedings, such as a hearing prior to effecting suspension, are required to conform to the due process rights of plaintiffs, (d) that the plaintiffs rights to free speech were not violated, and (e) the plaintiffs, and each of them failed to uphold the rules and regulations of the student body and school and to set an example in leadership which would be a pattern for conduct among the students and failed to uphold the highest standards of the school, all as required by the terms of their oath of office. [Student by-laws, Article 4, Section 2, Defts.' Ex. I.]
24. Moral Supervision. Principals and teachers shall exercise careful supervision over the moral conditions in their respective schools. Gambling, immorality, profanity, frequenting public pool rooms, the use of tobacco, narcotics and intoxicating liquors on the school grounds, or elsewhere on the part of pupils shall not be tolerated.
§ 10607. No pupil shall be suspended from an elementary school for more than two consecutive weeks.
* * * * *
On or before the third consecutive school day of any given period of suspension, the parent or guardian of the pupil involved shall be asked to attend a meeting with school officials, at which time the causes, the duration, the school policy involved, and other matters pertinent to the suspension, shall be discussed. If the parent or guardian fails to join in such a conference, the school officials shall send him by mail a letter stating the fact that suspension has been implemented and setting forth all other data pertinent to the action.
Free Speech
In support of their position that their constitutional rights to free speech have been violated, plaintiffs argue that the November 5, 1969, issue of Oink (Ex. 4) did not cause disruption or interference with the normal educational program at Warren High School and that they were merely expressing their views and opinions, which they had every right to do although such expression might be unpopular with some.
Zucker v. Panitz, 299 F. Supp. 102, 105 (S.D.N.Y., 1969), on which plaintiffs rely, involved the publishing in a school paper of a paid advertisement opposing the Vietnam war. The District Court held that the paper was open to the free expression of ideas and that the students were entitled to publish the advertisement on freedom of speech grounds.
Plaintiffs also cite Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), which case concerned the rights of a few high school students to wear black arm bands to protest the war in Vietnam. Five students were suspended. The Supreme Court held that the wearing of the arm bands was akin to free speech and that First Amendment rights were available to teachers and students, subject to application in light of the special characteristics of the school environment. The Court went on to say that a student may express his opinions on campus, even on controversial subjects, "* * * if he does so without `materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others. Burnside v. Byars, supra, [5 Cir.] 363 F.2d [744] at 749." [Page 513, 89 S.Ct. page 740.]
What appears to be the test is set forth at page 509 of the opinion at page 738 of 89 S.Ct.:
"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, 363 F.2d at 749."
The Court then goes on to say:
"In the present case, the District Court made no such finding,3 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.
"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" [Pages 509-510, 89 S.Ct. page 738.] [Emphasis added.]
In the case of Burnside v. Byars, 363 F.2d 744, 748 (5 C.A. 1966), cited by the Supreme Court, supra, the Court states:
"The interest of the state in maintaining an educational system is a compelling one, giving rise to a balancing of First Amendment rights with the duty of the state to further and protect the public school system. The establishment of an educational program requires the formulation of rules and regulations necessary for the maintenance of an orderly program of classroom learning. In formulating regulations, including those pertaining to the discipline of school children, school officials have a wide latitude of discretion."
The Court also says that it is not for the court to consider whether such rules are wise or expedient but merely whether they are a reasonable exercise of the power and discretion of the school authorities.
In the instant case, Dr. Finch, the Superintendent of Schools, testified at length relative to his several conferences with the principal, Mr. Shiney, on November 5th, 6th and 7th, following distribution of Exhibit 4, as to what action should be taken against plaintiffs and as to his opinion that Exhibit 4 threatened the educational program of the school and would diminish control and discipline and as to his apprehension that unless action was taken promptly to discipline the plaintiffs there would be further disruption of and interference with the educational program.
Mr. Shiney testified that he had reached similar conclusions. He also testified as to the disruption and interference with classroom study and teaching following the distribution of Exhibit 4 on November 5th. A few teachers testified that there were disruptions in their classes and some testified to the contrary. On cross-examination, Mr. Shiney stated that some 25 to 30 teachers had told him of their classes being interrupted and of failure in attention on the part of students due to their reading of and talking about Oink during class. Mr. Robinson concurred.
Due Process
Section 10607 of the Education Code, supra, provides, in part, that the parent of a pupil suspended shall, before the third school day of the period of suspension, be asked to attend a meeting with school officials at which time the causes, the duration, the school policy involved, and other matters pertinent to the suspension, shall be discussed.
No specific request was made of the plaintiffs' parents to attend a meeting with school officials but Mrs. Baker, mother of David Baker, called on Dr. Finch on November 12th and he discussed with her the items mentioned in Section 10607. On November 12th, Mr. Schaffner, father of Bill Schaffner, talked to Dr. Finch in his office about the same matters, as well as the reason for Bill's removal from school office. Dr. Finch also showed both Mrs. Baker and Mr. Schaffner the pertinent sections of the California Education Code and provisions of the School Board policy adopted by the Downey Unified School District, which were relied on in suspending their sons. He also talked to Mrs. Schaffner, mother of Bill, on the telephone concerning the suspension.
Mr. Shiney talked to Mr. Schaffner, the father, about Exhibit 4 and other aspects of the suspension, and conferred with Mrs. Baker about one and one-half hours about the suspensions, the reasons and authority therefor, and the policy of the school involved, on November 12th.
The Court concludes that the intent and purpose of the provisions of Section 10607 of the Education Code, supra, as to required procedure, were fulfilled.
Plaintiffs further contend that their rights to procedural due process required that they be given specifications of charges, notice of hearing, and a hearing, prior to the suspensions.
Judge Moore, in Madera v. Board of Education, etc., 386 F.2d 778, 789 (2 C.A. 1967), states:
"Law and order in the classroom should be the responsibility of our respective educational systems. The courts should not usurp this function and turn disciplinary problems, involving suspension, into criminal adversary proceedings — which they definitely are not."
That case concerned the right of the student to an attorney in a District Superintendent's Guidance Conference.
Due process is not a fixed, inflexible procedure which must be accorded in every situation. It varies with the circumstances involved. In the instant case, the school officials were charged with the conduct of the educational program and if the temporary suspension of a high school student could not be accomplished without first preparing specifications of charges, giving notice of hearing, and holding a hearing, or any combination of these procedures, the discipline and ordered conduct of the educational program and the moral atmosphere required by good educational standards, would be difficult to maintain.
It appears to the Court that, having in mind all of the facts and circumstances here involved, the plaintiffs' administrative procedural rights were accorded them by the school officials and the applicable principles of due process were satisfied.
What would constitute procedural due process before a student be expelled, as distinguished from temporary suspension, is not before the Court.
In the case of Soglin v. Kauffman, 295 F. Supp. 978 (W.D.Wis. 1968), relied on by plaintiffs, the District Court speaks of students expelled or suspended:
"* * * for a period of time substantial enough to prevent one from obtaining academic credit for a particular term. * * *." [Page 988.]
The complaint alleged that two defendants had been expelled and others threatened with "* * * suspension, expulsion or other denial of matriculation * * * for alleged violation of the doctrine of `misconduct' and by reason of the application of the doctrine of `misconduct'."2
We are not here concerned with the drastic disciplinary action taken or proposed to be taken in the Soglin case, and the procedural due process indicated as being requisite in that case would, therefore, not be necessary in the case at bar.
The Soglin case, supra, also held that sanctions for "misconduct" would fall as the term is unconstitutionally vague. Plaintiffs seek to apply the same rule as to "profane" and "vulgar". They state, in their supplemental memorandum, that "profane" means irreverence or contempt for God, unholy, heathen and, in its broader sense and usage, " common" or " vulgar".
A state law, rule or regulation, governing the conduct of high school students must be sufficiently definite to provide notice to reasonable students that they must conform their conduct to its requirements and may not be so vague that persons of common intelligence must guess at its meaning but the requirement for reasonable certainty in the school laws and regulations does not preclude the use of ordinary terms which find adequate interpretation in common usage and understanding. Budd v. Madigan, 9 C.A. 1969, 418 F.2d 1032. In that case the court ruled on the alleged vagueness of California Penal Code, Section 647(f).
"Profane" and "vulgar" fall within the rule as stated in Budd v. Madigan, supra, and the cases cited therein.
Grounds for Suspension
Defendants deny that Section 106022 of the Education Code states the only grounds for temporary suspension of a statute and assert that the suspensions in the instant matter were not based on that Section although it is cited as one of those relied on in the "Report of Suspension" (Exs. 5 6) given to each of the plaintiffs by Mr. Shiney on November 5, 1969.
The Attorney General of California has rendered an opinion covering the issue as to the exclusiveness of Section 10602, Education Code, with respect to the grounds for the expelling of a student. 48 Opinions, Attorney General, California, page 4, 7 (1966). The question discussed was whether a student could be legally expelled for conduct away from the school premises which involved a morals charge. In answering in the affirmative, the Attorney General says:
"Misconduct on the way to and from school subjects pupils to suspension or expulsion. See section 13557, * * *."
Section 24 of Title 5 of the California Administrative Code3 is then cited and quoted in part:
"Principals and teachers shall exercise careful supervision over the moral conditions in their respective schools * * *."
Thereafter the Attorney General says:
"These references clearly show that the grounds for discipline listed in section 10602 are not exclusive.
"Historically the governing board of a school district has had the power to discipline a pupil for conduct `which has a direct and immediate tendency to influence the conduct of other pupils while in the schoolroom, to set at naught the proper discipline of the school, to impair the authority of the teachers, and to bring them into ridicule and contempt. Such power [to discipline for conduct occurring outside of school] is essential to the preservation of order, decency, decorum, and good government in the public schools.' State ex rel. Dresser v. District Board ([135] Wis. [619]), 116 N.W. 232, 235, [16 L.R.A., N.S., 730] (1908)." [Emphasis added.]
Dr. Finch testified that the suspensions were made on the authority of Education Code Sections 10604, 10607.5, 10609 and 13557, School Board Policies 2410 (Ex. E), 2412 (Ex. Q), 2430 (Ex. F), and his administrative statement dated August 25, 1969 (defts' Ex. R). These authorities are cited in Dr. Finch's memorandum to Mr. Shiney dated November 7, Exhibit D, which was issued before the suspensions were effected. The date, November 12, second line, first paragraph, should be November 5.
§ 10604. Membership in secret clubs prohibited.
* * * * *
The governing board of any school district may make and enforce all rules and regulations needful for the government and discipline of the schools under its charge. Any governing board shall enforce the provisions of this section by suspending, or, if necessary, expelling a pupil in any elementary or secondary school who refuses or neglects to obey any such rules or regulations.
§ 10609. All pupils shall comply with the regulations, pursue the required course of study, and submit to the authority of the teachers of the schools.
§ 13557. Every teacher in the public schools shall hold pupils to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess. * * *.
Mr. Shiney stated that he, too, relied on the above cited authority, less Exhibit R. He also considered Board Policy 2320 (Exhibit H), which makes the principal responsible for the activities of secondary student bodies.
Board Policy 2410 (Exhibit E) provides that the Board of Education expects students to maintain high standards of personal conduct reflecting respect and responsibility for themselves and others. Policy 2410, under "Areas of Responsibility", states that the Board expects students to maintain high standards of personal conduct and that students may be denied the right to attend school for violation of laws and reasonable rules and regulations. The Policy further states:
"As Education Code 7851 states: `Each teacher shall endeavor to impress upon the minds of the pupils the principles of morality, truth, justice, and patriotism, to teach them to avoid idleness, profanity, and falsehood, to instruct them in the principles of free government, and to train them up to a true comprehension of the rights, duties, and dignity of American citizenship.' Punishment, administered as the ultimate phase of school district policy, is intended to reform the wrongdoer and to serve as a deterrent to others." [Exhibit E, 3rd page.]
Board Policy 2412, (Exhibit Q) specifies areas of responsibility of administrative personnel, teachers, students and parents With respect to school principals, it states, in part:
"Each school principal shall be responsible to the Superintendent for student control in his school and for all personnel within his jurisdiction. He shall have the responsibility and authority to carry out school district policies and regulations."
As to students:
"All students shall comply with the regulations, pursue the required course of study, and submit to the authority of the teachers and staff of the school. (E.C. 10609) They shall also be expected to conform to the laws of the community, state, and nation. They shall be encouraged, through student government and other types of student activities appropriate to their levels of maturity, to assume responsibility for controlling their own conduct (self-discipline)."
The authority of the principal is further bolstered by Sections 243 and 62 of Title 5, California Administrative Code. Said Section 62 requires pupils to "* * * refrain entirely from the use of profane and vulgar language." [Emphasis added.]
62. Pupil Shall Attend Regularly. Every pupil must attend school punctually and regularly; conform to the regulations of the school; obey promptly all the directions of his teacher and others in authority; observe good order and propriety of deportment; be diligent in study; respectful to his teacher and others in authority; kind and obliging to schoolmates; and refrain entirely from the use of profane and vulgar language.
In measuring the reasonableness of the suspensions, the Court must give credence to the role and purpose of the schools and the means available to school administrators to deal with their problems.
The Court finds that there is ample authority to support the temporary suspensions here involved and that the grounds for discipline listed in Section 10602, supra, are not exclusive. The Court further finds that the action taken was a reasonable exercise of the power and discretion of the secondary school authorities in the maintaining of an atmosphere conducive to an orderly program of classroom study and learning and respect for legitimate and necessary administrative rules and State laws. Goldberg v. Regents of the University of California, 248 Cal.App.2d 867 (1967), 57 Cal.Rptr. 463, 472 (involved suspension and expulsion of students as a result of use of "profane and obscene" language); Scoville v. Board of Education, etc., 286 F. Supp. 988, 991-992 (N.D.Ill. 1968); and Schwartz v. Schuker, 298 F. Supp. 238, 240-242 (E.D.N.Y. 1969).
The Schwartz case involved distribution, off school grounds but near the property of the high school, of Issue No. 5 of a newspaper entitled "High School Free Press." The paper criticized the school principal and other members of the administration. In denying a preliminary injunction to mandate the reinstatement of the plaintiff, who was expelled, the Court pertinently observes:
"A special note should be taken that the activities of high school students do not always fall within the same category as the conduct of college students, the former being in a much more adolescent and immature stage of life and less able to screen fact from propaganda." [Page 242.]
Grounds for Removal From Student Office.
The publication and distribution of Exhibit 4, with its multiple vulgarisms, would appear to be sufficient to evidence the violation of the student officers' oath.1 However, there was other conduct on the part of the plaintiffs in derivation of their obligation to set an example in leadership which would be a pattern for conduct among the students and their obligation to do everything to uphold the highest standards of the school. In this regard, both plaintiffs had been previously threatened with suspension, plaintiff Baker for failing to comply with the standards of student grooming with respect to his sideburns (Ex. S, pg. 14) after being twice warned, over a period of two weeks, to do so, and plaintiff Schaffner, after warning, had to be sent home to remain until he conformed to the student dress code (Ex. S, pg. 14).Plaintiffs were frank in stating that they insisted on publishing Oink because they wanted a platform for uninhibited criticism of the administration and for a forum available to students to present their ideas which, plaintiffs knew, would not be allowed to appear in the school paper, "Justice".
The negative attitude of Oink was discussed by Mr. Shiney with plaintiffs, also their failure to be constructive in their criticism of the administration and their lack of a positive program, but no disciplinary action was taken until Exhibit 4 was distributed. All members of the student council, including plaintiffs, had, on more than one occasion, been cautioned to remember that all of their acts reflected on the school and the student body.
Following distribution of Exhibit 4 and prior to the suspensions, there were numerous inquiries by parents in the school district, students, teachers, and at least one public official, as to what the school officials were going to do about the vulgarities in Exhibit 4, and some students were taking the position that if the plaintiffs were not to be restrained that there was no reason why they could not use the same manner of expression on campus.
It appears there was ample evidence to justify the removal of plaintiffs from their student offices although whether such removal poses a violation of constitutional rights is questionable.
Plaintiffs' insistence that Oink was not distributed on campus is of little aid to their case. First, the fact the distribution was technically not on campus because the paper was handed to students just outside the main gate does not mitigate against the fact that plaintiffs knew the students were entering the campus for class and also knew and intended that Oink would be well distributed on campus. Secondly, for the reasons stated hereinabove and the authorities referred to, the fact the acts which resulted in the distribution on campus were not actually performed on campus is of no consequence. The school authorities are responsible for the morals of the students while going to and from school, as well as during the time they are on campus.
Plaintiff Schaffner stated to one or more fellow students that plaintiffs' November 5th issue of Oink included the objectionale Farber article, advertisement, poem and nude, because they wanted to see how far they could go with the administration. Testing of authority is as old as human relations and is not limited to young people. However, when the bounds of decency are violated in publications distributed to high school students, whether on campus or off campus, the offenders become subject to discipline.
The Supreme Court of the United States recently observed, in Ginsberg v. New York, 390 U.S. 629, 638, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195 (1967):
"* * * we have recognized that even where there is an invasion of protected freedoms `the power of the state to control the conduct of children reaches beyond the scope of its authority over adults * * *.' Prince v. Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 88 L.Ed. 645.6"
Pornography — Not an Issue.
We are not here confronted with the issue of whether the controversial forms of expression in Exhibit 4 are pornographic. If such were the case, it could well be argued that the plaintiffs would be justifiably confused by incomprehensible legalese. The meanings of "vulgar" and "profanity" do not prompt such confusion.Neither "pornography" nor "obscenity", as defined by law, need be established to constitute a violation of the rules against profanity or vulgarity, or as a reason for interference with discipline, or to justify the apprehension of experienced school administrators as to the impairment of the school's educational process in the instant case. Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, supra.
Referring again to the First Amendment, freedom of speech is not the right to say anything one may please in any manner or place. The rule that the constitutional right to free speech and assembly may be infringed by the State, if there are compelling reasons to do so, must also be considered.
"The interest of the state in maintaining an effective and efficient school system is of paramount importance. That which so interferes or hinders the state in providing the best education possible for its people, must be eliminated or circumscribed as needed. This is true even when that which is condemned is the exercise of a constitutionally protected right." Ferrell v. Dallas Independent School District, 5 Cir., 392 F.2d 697, 703. [Emphasis added.]
The plaintiffs urge that the words in the Farber article, which they adopted by their acts and writings, (Exhibit P, page 2), are not profane or vulgar unless considered out of context. Several of the words used in the Farber article, as identified by Dr. Finch, were obviously profane and vulgar in context as well as out. There were also vulgarities in the advertisement on the second page of Exhibit 4, which were mentioned hereinabove. It appears to the Court that the School administrators were amply justified in their conclusion that Exhibit 4 contained profane and vulgar expressions. The instant case is to be distinguished from Tinker v. Des Moines Independent Community School District, Zucker v. Panitz, and Burnside v. Byars, all supra. In those cases, profanity and vulgarity were not involved, only the right to espouse a cause, political or otherwise, which did not disrupt the educational program of the school involved. In our case, plaintiffs were not disciplined for the criticism of the school administrators and the faculty, or of the Vietnam war, but because of the profane and vulgar manner in which they expressed their views and ideas. Several of the prior issues of Oink, all of which are in evidence, contained articles critical of the school administration, but no disciplinary action was taken until Exhibit 4 was distributed.
Having in mind all of the facts and circumstances in this case, the Court determines that the plaintiffs' First Amendment rights to free speech do not require the suspension of decency in the expression of their views and ideas. The right to criticize and to dissent is protected to high school students but they may be more strictly curtailed in the mode of their expression and in other manners of conduct than college students or adults. The education process must be protected and educational programs properly administered.
The evidence in this case discloses the good scholarship records of the plaintiffs and their leadership abilities. They will soon be in college and then take their place in the adult world. Regardless of how this litigation may ultimately terminate, should appeal be perfected, it would surely be a source of great satisfaction to all concerned if David Baker and Bill Schaffner could, during the last semester in high school, bring themselves to directing their abilities to the interest of Earl Warren High School within the rules which are required to effect its educational program in a good moral environment. They could well graduate with honors for their efforts in the school's behalf rather than be remembered as leaders who finished high school contesting the rights of the administration to encourage and enforce good moral standards for the members of the student body, both on and off campus.
The Court decides that the school officials took such action as in their discretion the situation required and in a conscientious endeavor to fulfill their duty to the State and the members of the student body, that the action was appropriate in the circumstances and supported by the authorities.
Plaintiffs are not entitled to the injunctive or declaratory relief sought by their complaint.
Defendants' counsel is requested to prepare, serve and lodge Findings of Fact, Conclusions of Law and Judgment, in accordance with the provisions of Rule 7, Local Rules of this Court.