Guzick v. Drebus

• Citation: 431 F.2d 594
• Decision Date: 16 September 1970
• Docket Number: No. 19681.,19681.
• Parties: Thomas GUZICK, Jr., a minor, by his next friend and father, Thomas Guzick, Plaintiff-Appellant, v. Donald L. DREBUS et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

431 F.2d 594 (1970)

Thomas GUZICK, Jr., a minor, by his next friend and father, Thomas Guzick, Plaintiff-Appellant, v. Donald L. DREBUS et al., Defendants-Appellees.

No. 19681.

United States Court of Appeals, Sixth Circuit.

September 16, 1970.

Jerry Gordon, Cleveland, Ohio, for appellant Benjamin B. Sheerer, Rudd, Miller, Sheerer & Lybarger, Cleveland, Ohio, on brief.

Charles F. Clarke, Cleveland, Ohio, for appellees, William C. Hartman, George W. Pring, Cleveland, Ohio, on brief, Squire, Sanders & Dempsey, Richard F. Stevens, Cleveland, Ohio, of counsel.

Before WEICK, Circuit Judge, and McALLISTER and O'SULLIVAN, Senior Circuit Judges.

O'SULLIVAN, Senior Circuit Judge.

Plaintiff-Appellant, Thomas Guzick, Jr., — prosecuting this action by his father and next friend, Thomas Guzick — appeals from dismissal of his complaint in the United States District Court for the Northern District of Ohio, Eastern Division. Plaintiff's complaint sought an injunction and other relief against defendant Drebus, the principal of Shaw High School in East Cleveland, Ohio, as well as against the Superintendent and Board of Education for the schools of said city. Plaintiff also asked for declaratory relief and damages.

The complaint charged that Thomas Guzick, Jr., a seventeen year old, eleventh grade student at Shaw High School, had been denied the right of free speech guaranteed to him by the United States Constitution's First Amendment. He asserted that this right had been denied him when he was suspended for refusing to remove, while in the classrooms and the school premises, a button which solicited participation in an anti-war demonstration that was to take place in Chicago on April 5. The legend of the button was:

"April 5 Chicago GI — Civilian Anti-War Demonstration Student Mobilization Committee"

With the currency of reliance on the First Amendment as support for so many and so varied claims for relief in the federal courts, it would be well to remind ourselves of that Amendment's exact language.

"ART. 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

On March 11, 1969, young Guzick and another student Havens, appeared at the office of defendant Drebus, principal of the high school, bringing with them a supply of pamphlets which advocated attendance at the same planned Chicago anti-war demonstration as was identified by the button. The boys were denied permission to distribute the pamphlets, and were also told to remove the buttons which both were then wearing. Guzick said that his lawyer, counsel for him in this litigation, told him that a United States Supreme Court decision entitled him to wear the button in school. Principal Drebus directed that he remove it and desist from wearing it in the school. Being told by Guzick that he would not obey, the principal suspended him and advised that such suspension would continue until Guzick obeyed. The other young man complied, and returned to school. Guzick did not, and has made no effort to return to school. This lawsuit promptly followed on March 17. The complaint prayed that the school authorities be required to allow Guzick to attend school wearing the button, that it be declared that Guzick had a constitutional right to do so, and that damages of $1,000 be assessed for each day of school missed by Guzick as a result of the principal's order.

The District Judge denied plaintiff's application for a preliminary injunction, and after a plenary evidentiary hearing, which was concluded on March 26, 1969, the complaint was dismissed. The opinion and judgment of the District Judge were filed and entered on April 2, 1969. The case is reported as Guzick v. Drebus, 305 F.Supp. 472 (N.D.Ohio 1969).

We affirm.

Plaintiff insists that the facts of this case bring it within the rule of Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). We are at once aware that unless Tinker can be distinguished, reversal is required. We consider that the facts of this case clearly provide such distinction.

The rule applied to appellant Guzick was of long standing — forbidding all wearing of buttons, badges, scarves and other means whereby the wearers identify themselves as supporters of a cause or bearing messages unrelated to their education. Such things as support the high school athletic teams or advertise a school play are not forbidden. The rule had its genesis in the days when fraternities were competing for the favor of the students and it has been uniformly enforced. The rule has continued as one of universal application and usefulness. While controversial buttons appeared from time to time, they were required to be removed as soon as the school authorities could get to them.

Reciting the history of the no button or symbol rule, and the fact that the current student population of Shaw High School is 70% black and 30% white, the District Judge observed:

"The rule was created in response to a problem which Shaw has had over a period of many years. At the time high school fraternities were in vogue, the various fraternities at Shaw were a divisive and disruptive influence on the school. They carved out portions of the school cafeteria in which only members of a particular fraternity were permitted to sit. The fraternities were competitive and engaged in activities which disrupted the educational process at Shaw. There were fights between members of the individual fraternities and often strong feelings between the members.

"The same problem was encountered with the informal clubs, which replaced high school fraternities and sororities. The problem again exists as a result of the racial mixture at Shaw. Buttons, pins, and other emblems have been used as identifying `badges.\' They have portrayed and defined the divisions among students in the school. They have fostered an undesirable form of competition, division and dislike. The presence of these emblems, badges and buttons are taken to represent, define and depict the actual division of the students in various groups.

"The buttons also encourage division among the students, for they portray and identify the wearer as a member of a particular group or the advocate of a particular cause. This sets the wearer apart from other students wearing different buttons or without buttons. It magnifies the differences between students, encourages emphasis on these differences, and tends to polarize the students into separate, distinct, and unfriendly groups. In addition, there have been instances in which students have attempted to force other students to wear a particular manner of dress or to wear their particular insignia or expressive button. For these reasons Shaw High officials have enforced the anti-button rule and have prohibited the wearing of such indicia.

"The rule has acquired a particular importance in recent years. Students have attempted to wear buttons and badges expressing inflammatory messages, which, if permitted, and as the evidence indicates, would lead to substantial racial disorders at Shaw. Students have attempted to wear buttons with the following messages inscribed thereon. `White is right\'; `Say it loud, Black and Proud\'; `Black Power.\' Other buttons have depicted a mailed black fist, commonly taken to be the symbol of black power.

"There have been occasions when the wearing of such insignia has led to disruptions at Shaw and at Kirk Junior High. A fight resulted in the cafeteria when a white student wore a button which read `Happy Easter, Dr. King.\' (Dr. Martin Luther King was assassinated in the Easter season.)" 305 F.Supp. at 476-477.

From the total evidence, including that of educators, school administrators and others having special relevant qualifications, the District Judge concluded that abrogation of the rule would inevitably result in collisions and disruptions which would seriously subvert Shaw High School as a place of education for its students, black and white.¹

1. The Rule of Tinker.

Contrasting with the admitted long standing and uniform enforcement of Shaw's no symbol rule, the majority opinion in Tinker was careful to point out,

"It is also relevant that the school authorities in Tinker 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." 393 U.S. at 510-511, 89 S.Ct. at 738-739.

The armband demonstration in Tinker was a one time affair, with a date for its ending fixed in its original plan. Plaintiff here argues that Shaw's no symbol rule should be abrogated to accommodate his wish to be relieved from obeying it. The majority in Tinker emphasized that it was following what had been "the unmistakable holding of this Court for almost 50 years." 393 U.S. at 506, 89 S.Ct. at 736. Opinions of Mr. Justice McReynolds in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) and Bartels v. Iowa, 262 U.S. 404, 43 S.Ct. 628, 67 L.Ed. 1047 (1923), were referred to as announcing the long standing rule that the United States Constitution must be respected by those who operate our public schools. West Virginia State Bd. of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) was cited to emphasize the relevancy of the First Amendment in public school administration. However, Meyer and Bartels struck down state statutes which forbade the teaching of a...