Banks v. Board of Public Instruction of Dade County

• Decision Date: 26 June 1970
• Docket Number: No. 70-197-Civ-TC,70-241-Civ-TC,70-248-Civ-TC.,70-197-Civ-TC
• Parties: Andrew Robert BANKS, Plaintiff, v. BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY, a body corporate, Defendant. Robin MOBLEY, by her mother and next friend, Francine Mobley, etc., Plaintiff, v. G. Holmes BRADDOCK, Chairman of the Board of Public Instruction, Dade County, Florida, et al., Defendants. Michael HILL, by his father and next friend, Richard Hill, Plaintiff, v. The BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY, FLORIDA, etc., et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

314 F. Supp. 285

Andrew Robert BANKS, Plaintiff, v. BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY, a body corporate, Defendant.

Robin MOBLEY, by her mother and next friend, Francine Mobley, etc., Plaintiff, v. G. Holmes BRADDOCK, Chairman of the Board of Public Instruction, Dade County, Florida, et al., Defendants.

Michael HILL, by his father and next friend, Richard Hill, Plaintiff, v. The BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY, FLORIDA, etc., et al., Defendants.

Nos. 70-197-Civ-TC, 70-241-Civ-TC, 70-248-Civ-TC.

United States District Court, S. D. Florida.

June 26, 1970.

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Beverly Gurevitz, Miami, Fla., for plaintiff Banks.

C. Michael Abbott and Bruce S. Rogow, Miami, Fla., for plaintiff Mobley.

Tobias Simon, Miami, Fla., for plaintiff Hill.

George C. Bolles, and Robert A. Ware, Bolles, Goodwin, Ryskamp & Ware, Miami, Fla., for defendants.

Before SIMPSON, Circuit Judge, and MEHRTENS and CABOT, District Judges.

MEMORANDUM OPINION AND FINAL JUDGMENT

CABOT, District Judge:

Final hearing in these consolidated cases was held on May 25, 1970, before the three-judge court convened pursuant to the provisions of 28 U.S.C. §§ 2281 and 2284. The cases all involve the common question of the facial constitutionality of Florida Statute 232.26, F.S.A.,¹ which provides for suspension of public school children for misbehavior. They also present the issue of the validity of School Board Policy-Regulation 5114² which was enacted under the statute, as well as other issues not common to all three cases. The backgrounds of the separate cases follow.

Banks v. Board of Public Instruction of Dade County

Plaintiff, Andrew Robert Banks, a senior at Coral Gables High School, filed his amended complaint by his guardian ad litem alleging he was suspended from school as a result of his refusal to stand during the pledge of allegiance. The complaint seeks class relief and a declaration pursuant to 28 U.S.C. §§ 2201 and 2202 that Florida Statute 232.26, F. S.A. and School Board Policy-Regulation 5114, issued thereunder, are unconstitutional on their face as being vague, overbroad, and indefinite, and for failure to provide prior notice and hearing so as to comport with procedural due process of law. The plaintiff also challenges the constitutionality of School Board Policy-Regulation 6122, entitled "Guidelines for Instruction Pertaining to the Flag, Pledge of Allegiance, and National Anthem,"³ asserting that the regulation violates the free speech and expression guarantee of the First Amendment as applied to the states through the Fourteenth Amendment to the United States Constitution.

The constitutional application of the statute and the policy-regulations are also challenged, and in this regard the parties have stipulated that the transcript of testimony taken at the earlier hearing on the application for temporary injunction to restore plaintiff to school attendance (which was granted) may be received in evidence. Finally, at the time of final hearing, defendants' motion to dismiss the cause as a class action was pending for determination by the full court.

Mobley v. Braddock; Hill v. Board of Public Instruction of Dade County

On February 25, 1970, Robin Mobley, a student at Drew Junior High School, was suspended for walking through Drew Elementary School, a facility on the same school compound, during school hours without permission. On February 27, 1970, Michael Hill, a student at Parkway Junior High School, was suspended for possession of marbles. Both acts were contrary to established rules of which the suspended students had knowledge. The complaints in these suits were filed by the minors' legal guardians and seek a declaration pursuant to 28 U.S.C. §§ 2201 and 2202 that Florida Statute 232.26, F.S.A. and School Board Policy-Regulation 5114, issued thereunder, are unconstitutional on their face as being vague, overbroad, and indefinite, and for failure to provide prior notice and hearing so as to comport with procedural due process of law. The constitutional application of the statute and the policy-regulation are challenged in both cases, and in this regard the parties have stipulated that the transcript of testimony taken at the earlier hearings on applications for temporary injunction to restore the plaintiffs to school attendance (which were denied) may be received in evidence. At the time for final hearing no motions were pending for consideration by the court in Hill, but in Mobley there awaits for determination by this panel the defendant's motion to dismiss the cause as a class suit.

We turn now to a discussion of the issues:

Class Action Relief

The complaints in Banks and in Mobley alleged that the suits are being brought on behalf of the named plaintiffs and on behalf of all others similarly situated who have been or will be threatened with suspensions from schools in Dade County, Florida, pursuant to the authority vested in the county's school principals by Florida Statute 232.26 and Policy-Regulation 5114. Additionally, in Banks the class was alleged to consist of those students in the Dade County school system who are subject to the provisions of School Board Policy-Regulation 6122. The defendants in these two cases have filed motions to dismiss alleging that class relief is not appropriate to these cases.

Rule 23(a) of the Federal Rules of Civil Procedure provides that one or more members of a class may sue or be sued as representative parties on behalf of all only if there are questions of law or fact common to the class and the remaining requirements of subsections (a) and (b) are satisfied.

In both Mobley and Banks, the complaints fail to show the existence of a question of law or fact common to the class of persons alleged to be subject to the statute and Regulation 5114.

The reasons for which students may be lawfully suspended from school are limited only by the varieties of misbehavior which their ingenuity can devise. They are so numerous as to defy listing.

If the statute is facially unconstitutional the judgment so declaring will apply throughout the state without the necessity for class relief. On the other hand, in considering the constitutionality af the statute as applied, a different set of facts surrounds each suspension. The constitutional issue, therefore, is variable, one of mixed law and fact, and precludes the finding of a question of law or fact common to the class as described. The defendants' motion striking this aspect of the class relief will be granted.

Banks, however, also challenges the constitutionality of Policy-Regulation 6122 and alleges this to be a matter appropriate for class relief, with the class consisting of all those Dade County public school students who refuse to stand during the pledge of allegiance ceremony, but merely sit in their seats, and therefore have been suspended or are subject to suspension. Thus, there is a question of law common to the members of this class.

Moreover, the court finds that the plaintiff will fairly and adequately protect the interests of the class and that the party opposing the class has acted on grounds generally applicable to the class. See Frain v. Baron, infra, for a similar result. Class relief is appropriate in Banks and the defendants' motion will be denied.

Facial Constitutionality of Florida Statute 232.26

Florida Statute 232.26 F.S.A. provides in pertinent part as follows:

Authority of Principal. * * *

The principal may suspend a pupil for wilful disobedience, for open defiance of authority of a member of his staff, for use of profane or obscene language, for other serious misconduct, and for repeated misconduct of a less serious nature; provided, that each such suspension with the reasons therefor shall be reported immediately in writing to the parent and to the county superintendent. * * *

The plaintiffs in these consolidated cases assert that the statute is unconstitutional on its face as being vague, overbroad, and indefinite, and for its failure to provide for prior notice and hearing so as to comport with procedural due process of law.

Vagueness—Overbreadth. Plaintiffs assert that the statutory language is vague because "* * * men of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Construction Co., 1926, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322. They point out that the "void for vagueness doctrine" applies to civil as well as criminal actions, Boutilier v. Immigration and Naturalization Serv., 1967, 387 U.S. 118, 87 S.Ct. 1563, 18 L.Ed.2d 661, and that the doctrine has been applied in reviewing both university, Soglin v. Kauffman, W. D.Wis.1968, 295 F.Supp. 978, aff'd 7 Cir. 1969, 418 F.2d 163, and high school sanctions, Sullivan v. Houston Independent School District, S.D.Tex.1969, 307 F.Supp. 1328. Analyzing each phrase separately, the plaintiffs have attempted to show that the language of the statute does nothing more than allow school administrators unfettered discretion in meting out suspensions. We disagree.

In order to resolve the question of whether or not the plaintiffs were denied their constitutional rights it is important to weigh and contrast the gravity of those rights with the interest of the state in maintaining discipline in the educational system. It has alwas been within the province of school authorities to provide by regulation for the prohibition and punishment of acts calculated to undermine the school routine. Obviously, such authority is necessary and proper. Blackwell v. Issaquena County Board of Education, 5 Cir. 1966, 363 F.2d 749, 753.

The Supreme Court has on several occasions "* * * emphasized the need for affirming the comprehensive authority of the states and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools." Tinker v. Des Moines Independent Community School District, 1969, 393 U.S. 503, 89 S.Ct. 733,...