Blackwell v. Issaquena County Board of Education, 22712.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation363 F.2d 749
Docket NumberNo. 22712.,22712.
PartiesJeremiah BLACKWELL, Jr., et al., Appellants, v. ISSAQUENA COUNTY BOARD OF EDUCATION, et al., Appellees.
Decision Date21 July 1966

363 F.2d 749 (1966)

Jeremiah BLACKWELL, Jr., et al., Appellants,

No. 22712.

United States Court of Appeals Fifth Circuit.

July 21, 1966.

363 F.2d 750

Melvyn Zarr, Derrick A. Bell, Jr., New York City, Henry M. Aronson, Jackson, Miss., Carsie A. Hall, Jack H. Young, Jackson, Miss., Jack Greenberg, New York City, for appellants.

Will S. Wells, Asst. Atty. Gen., Jackson, Miss., J. Wesley Miller, Herman C. Glazier, Jr., Rolling Fork, Miss., for appellees.

Before GEWIN and THORNBERRY, Circuit Judges, and WEST, District Judge.

GEWIN, Circuit Judge.

The appellants filed a civil rights action under 42 U.S.C. § 1983 to enjoin pursuant to 28 U.S.C. § 1343 school officials from enforcing a regulation forbidding school children from wearing "freedom buttons" as a denial of First and Fourteenth Amendment rights under the United States Constitution.1 The United States District Court for the Southern District of Mississippi refused to grant a preliminary injunction.

On Friday, January 29, 1965, approximately 30 pupils at the all-Negro Henry Weathers High School wore "freedom buttons" to class. The buttons were about an inch in diameter depicting a black and white hand joined together with "SNCC" inscribed in the margin. It was reported to the principal, Mr. O. E. Jordan, that some of these students were

363 F.2d 751
creating a disturbance by noisily talking in the hall when they were scheduled to be in class and three students were brought to the principal's office where they were told that no one could be permitted to create a disturbance and that they would have to remove their buttons

The following Monday, February 1, 1965, approximately 150 pupils came to school wearing the buttons. These students distributed buttons to students in the corridor of the school building and accosted other students by pinning the buttons on them even though they did not ask for one.2 One of the students tried to put a button on a younger child who began crying. This activity created a state of confusion, disrupted class instruction, and resulted in a general breakdown of orderly discipline, causing the principal to assemble the students in the cafeteria and inform them that they were forbidden to wear the buttons at school. At the assembly and also during conferences with the students immediately thereafter, several students conducted themselves discourteously and displayed an attitude of hostility.3

The next day, February 2, 1965, close to 200 students appeared wearing buttons. The students were assembled in the gymnasium where they were told that the rule forbidding them from wearing freedom buttons was necessary in order to maintain decorum and to keep from disturbing classrooms and other students; and if they returned to school again wearing buttons, they would be suspended.

The following day, February 3, 1965, the students returned to school wearing the buttons whereupon the principal immediately sent them home. As the students gathered their books to go home, classes were generally disturbed by students' comments inviting others to join

363 F.2d 752
them. One of the suspended students entered a classroom while class was in session, ignored the teacher and without permission importuned another student to leave class.4 Before the students left, a bus driver, Charles Cole, entered the school building with a cardboard box full of buttons, and began distributing them and even entered a classroom without permission, offering buttons to the students. Also, some students after boarding the busses, re-entered the school building with buttons, trying to pin them on anyone walking in the hall, and some threw buttons into the building through the windows.5

More children were suspended during the week for button wearing. Parents of the suspended children met several times with the Superintendent, Mr. H. G. Fenton, and Mr. Jordan but no agreement was ever reached. Those children who continued to remain at home after a period of 20 days, approximately 300 from various elementary and high schools in the school district, were suspended for the balance of the school year.

On April 1, 1965, a mandatory preliminary injunction was sought to compel school officials to re-admit the suspended pupils and to allow them to wear freedom buttons so long as no disturbance resulted therefrom. The motion for preliminary injunction was noticed for hearing on April 23, but the hearing was not conducted until May 10 because the District Judge was engaged in holding court elsewhere. Relief was denied on May 17. It is asserted in appellees' brief that the school term was scheduled to end the latter part of May or the early part of June.

The issue presented on this appeal, whether the school regulation forbidding the wearing of "freedom buttons" is a reasonable rule necessary for the maintenance of school discipline or an unreasonable rule which infringes on the students' right to freedom of speech guaranteed by the First Amendment of the United States Constitution, is identical to that in Burnside et al. v. Byars et al., 363 F.2d 744 (5 Cir. 1966), decided simultaneously with this case. In that case we recognized that the right of students to express and communicate an idea, by wearing a freedom button inscribed with "One Man One Vote", was protected by the First Amendment guarantee of freedom of speech; but we also recognized that reasonable regulations, necessary for keeping orderly conduct during school session, could infringe upon such First Amendment rights. We held in Burnside that a school regulation

363 F.2d 753
forbidding the wearing of freedom buttons was unreasonable in that the presence of such buttons on school grounds did not cause a disturbance of classroom activities nor was such a rule necessary for the maintenance of order and discipline within the school under the facts and in the circumstances of that case. Therefore, we found such regulation to be an infringement upon students' protected right of free expression

In the case now before us, the affidavits and testimony from the District Court present quite a different picture from the record in Burnside where no disruption of classes or school routine...

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    ...of freedom of speech. 393 U.S. 503, 513, 89 S.Ct. 733, 740, citing Blackwell v. Issaquena County Board of Education (CCA 5 1966), 363 F.2d 749. This court has discussed, supra, the failure of plaintiffs to pitch their case on expression of support of any idea or ideology. The case, therefor......
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    ...serious constitutional questions[,]" for "[a] valuable constitutional right is involved." Blackwell v. Issaquena County Bd. of Educ., 363 F.2d 749, 753 (5th Cir. 1966). A First Amendment problem arises when students in a public school, in the exercise of their First Amendment rights, collid......
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    ...requirements of appropriate discipline in the operation of the school," the prohibition cannot be sustained. Burnside v. Byars, supra , 363 F.2d at 749.In the present case, the District Court made no such finding [that allowing the speech would "materially and substantially interfere with t......
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