Burnside v. Byars, No. 22681.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtGEWIN and THORNBERRY, Circuit , and WEST
Citation363 F.2d 744
PartiesMrs. Margaret BURNSIDE et al., Appellants, v. James BYARS et al., Appellees.
Decision Date21 July 1966
Docket NumberNo. 22681.

363 F.2d 744 (1966)

Mrs. Margaret BURNSIDE et al., Appellants,
v.
James BYARS et al., Appellees.

No. 22681.

United States Court of Appeals Fifth Circuit.

July 21, 1966.


363 F.2d 745
COPYRIGHT MATERIAL OMITTED
363 F.2d 746
Henry M. Aronson, Jackson, Miss., Melvyn L. Wulf, New York City, Anthony G. Amsterdam, Philadelphia, Pa., of counsel, for appellants

Will S. Wells, Asst. Atty. Gen., Jackson, Miss., J. Wesley Miller, Special Counsel, Rolling Fork, Miss., Herman C. Glazier, Jr., Special Counsel, Rolling Fork, Miss., Joe T. Patterson, Atty. Gen. of State of Mississippi, James E. Rankin, Sp. Asst. Atty. Gen. of State of Mississippi, Jackson, Miss., for appellees.

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

GEWIN, Circuit Judge:

Plaintiffs brought a civil rights action under 42 U.S.C. § 1983 for a preliminary injunction pursuant to 28 U.S.C. § 1343 against officials of the Booker T. Washington High School of Philadelphia, Mississippi. It was alleged that plaintiffs' children's rights under the First and Fourteenth Amendments of the United States Constitution were breached by school officials in that they denied to the children the right to wear "freedom buttons" while attending school.1 Plaintiffs appeal from the order of the United States District Court for the Southern District of Mississippi denying a preliminary injunction.

Several days prior to September 21, 1964, Mr. Montgomery Moore, Principal of the Booker T. Washington High School of Philadelphia, Mississippi, learned that a number of his students were wearing "freedom buttons" obtained from the headquarters of the COFO1a organization which had been established in Philadelphia, Mississippi. The buttons were circular, approximately 1½ inches in diameter, containing the wording "One Man One Vote" around the perimeter with "SNCC" inscribed in the center. Thereupon he announced to the entire student body that they were not permitted to wear such buttons in the school house or in their various classes. Mr. Moore testified that this disciplinary regulation2 was promulgated because the buttons "didn't have any bearing

363 F.2d 747
on their education," "would cause commotion," and would be disturbing to the school program by taking up time trying to get order, passing them around and discussing them in the classroom and explaining to the next child why they are wearing them." Despite Mr. Moore's announcement, on September 21, 1964, three or four children appeared at school wearing the buttons. All were given an opportunity to remove the buttons and remain in school but three of the children elected to keep them and return home. The following day all the children returned to school without their buttons. On the morning of September 24, 1964, Mr. Moore was summoned to the school by one of the teachers who reported that 30 or 40 children were displaying the buttons and that it was causing a commotion.3 Mr. Moore then assembled the children in his office, reminded them of his previous announcement, and gave them the choice of removing their buttons or being sent home. The great majority elected to return home and Mr. Moore thereupon suspended them for a period of one week. Mr. Moore then delivered a letter4 to each parent concerning the suspension, and all parents agreed to cooperate in the matter except Mrs. Burnside, Mrs. English and Mrs. Morris, whereupon injunctive proceedings were instituted against the school officials to enjoin them from enforcing the regulation

Appellants contend that the school regulation forbidding "freedom buttons" on school property is an unreasonable rule which abridges their children's First and Fourteenth Amendment freedom of speech. It is the contention of the appellees that the regulation imposed by the principal is reasonable in maintaining proper discipline in the school and the District Court did not abuse its discretion in declining to issue a preliminary injunction.

The Negro school children who attended an all Negro high school wore the "freedom buttons" as a means of silently communicating an idea and to encourage the members of their community to exercise their civil rights.5 The right to communicate a matter of vital public concern is embraced in the First Amendment right to freedom of speech and therefore is clearly protected against infringement by state officials. Thornhill v. State of Alabama, 310 U.S. 88, 101, 60 S.Ct. 736, 84 L.Ed. 1093, 1102. Particularly, the Fourteenth Amendment protects the First Amendment rights of school children against unreasonable

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rules and regulations imposed by school authorities
"The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures — Boards of Education not excepted."

West Virginia State Board of Education v. Barnette, 319 U.S. 624, 637, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628, 1637.

But the liberty of expression guaranteed by the First Amendment can be abridged by state officials if their protection of legitimate state interests necessitates an invasion of free speech. Dennis v. United States, 341 U.S. 494, 510, 71 S.Ct. 857, 95 L.Ed. 1137, 1153; Whitney v. People of State of California, 274 U.S. 357, 376, 47 S.Ct. 641, 71 L.Ed. 1095, 1106. The interest of the state in maintaining an...

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228 practice notes
  • Law Students Civil Rights Research Coun., Inc. v. Wadmond, 68 Civ. 2917
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 17 Febrero 1969
    ...v. Greenville Airport Commission, 284 F.2d 631 (4th Cir. 1960); United States v. Beaty, 288 F.2d 653 (6th Cir. 1961); Burnside v. Byars, 363 F.2d 744 (5th Cir. II. The First Statute On the merits of the questions which the court finds dispositive of this case, plaintiffs must prevail.16 If ......
  • J.C. A Minor By v. Beverly Hills Unified Sch. Dist., No. CV 08-03824 SVW (CWx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 6 Mayo 2010
    ...discipline in the operation of the school” or “collid[e] with the rights of others.” Id. at 513, 89 S.Ct. 733 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir.1966)). Conversely, school discipline is appropriate where the facts “reasonably [lead] school authorities to forecast substan......
  • Bell v. Itawamba Cnty. Sch. Bd., No. 12–60264.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 12 Diciembre 2014
    ...in the operation of the school’ and without colliding with the rights of others.” Id. at 513, 89 S.Ct. 733 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir.1966) ). However, speech by the student that “materially disrupts classwork or involves substantial disorder or invasion of the r......
  • Jacobs v. Clark County School Dist., No. 05-16434.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 12 Mayo 2008
    ...substantially interfere with the requirements of appropriate discipline in the operation of the school.'" Id. (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)). Although Tinker did not equate its "substantial interference" test with the "strict scrutiny test" that is now common......
  • Request a trial to view additional results
228 cases
  • Law Students Civil Rights Research Coun., Inc. v. Wadmond, 68 Civ. 2917
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 17 Febrero 1969
    ...v. Greenville Airport Commission, 284 F.2d 631 (4th Cir. 1960); United States v. Beaty, 288 F.2d 653 (6th Cir. 1961); Burnside v. Byars, 363 F.2d 744 (5th Cir. II. The First Statute On the merits of the questions which the court finds dispositive of this case, plaintiffs must prevail.16 If ......
  • J.C. A Minor By v. Beverly Hills Unified Sch. Dist., No. CV 08-03824 SVW (CWx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 6 Mayo 2010
    ...discipline in the operation of the school” or “collid[e] with the rights of others.” Id. at 513, 89 S.Ct. 733 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir.1966)). Conversely, school discipline is appropriate where the facts “reasonably [lead] school authorities to forecast substan......
  • Bell v. Itawamba Cnty. Sch. Bd., No. 12–60264.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 12 Diciembre 2014
    ...in the operation of the school’ and without colliding with the rights of others.” Id. at 513, 89 S.Ct. 733 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir.1966) ). However, speech by the student that “materially disrupts classwork or involves substantial disorder or invasion of the r......
  • Jacobs v. Clark County School Dist., No. 05-16434.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 12 Mayo 2008
    ...substantially interfere with the requirements of appropriate discipline in the operation of the school.'" Id. (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)). Although Tinker did not equate its "substantial interference" test with the "strict scrutiny test" that is now common......
  • Request a trial to view additional results

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