Burnside v. Byars

Decision Date21 July 1966
Docket NumberNo. 22681.,22681.
Citation363 F.2d 744
PartiesMrs. Margaret BURNSIDE et al., Appellants, v. James BYARS et al., Appellees.
CourtU.S. Court of Appeals — Fifth Circuit


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 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 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 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. But the school is always bound by the requirement that the rules and regulations must be reasonable. It is not for us 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.

Regulations which are essential in maintaining order and discipline on school property are reasonable. Thus school rules which assign students to a particular class, forbid unnecessary discussion in the classroom and prohibit the exchange of conversation between students are reasonable even though these regulations infringe on such basic rights as freedom of speech and association, because they are necessary for the orderly presentation of classroom activities. Therefore, a reasonable regulation is one which measurably contributes to the maintenance of order and decorum within the educational system.

The regulation which is before us now prohibits the wearing of "freedom buttons" on school property. The record indicates only a showing of mild curiosity on the part of the other school children over the presence of some 30 or 40 children wearing such insignia. Even the principal testified that the children were expelled not for causing a commotion or disrupting classes but for violating the school regulation. Thus it appears that the presence of "freedom buttons" did not hamper the school in carrying on its regular schedule of activities; nor would it seem likely that the simple wearing of buttons unaccompanied by improper conduct would ever do so. Wearing buttons on collars or shirt fronts is certainly not in the class of those activities which inherently distract students and break down the regimentation of the classroom such as carrying banners, scattering leaflets, and speechmaking, all of...

To continue reading

Request your trial
228 cases
  • J.C. A Minor By v. Beverly Hills Unified Sch. Dist.
    • United States
    • U.S. District Court — Central District of California
    • May 6, 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......
  • Gillman v. School Bd. for Holmes Cnty., Fl, No. 5:08CV34-RS-MD.
    • United States
    • U.S. District Court — Northern District of Florida
    • July 24, 2008
    ...of the school" or "collid[e] with the rights of others." Tinker, 393 U.S. at 509, 513, 89 S.Ct. at 738, 740 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir.1966)) (internal quotations Applying its test, Tinker held that a public school district's regulation prohibiting students from ......
  • Doe v. Perry Community School Dist.
    • United States
    • U.S. District Court — Southern District of Iowa
    • April 29, 2004
    ...requirements of appropriate discipline in the operation of the school." Tinker, 393 U.S. at 511, 89 S.Ct. 733 (citing Burnside v. Byars, 363 F.2d 744, 749 (5th Cir.1966)). Courts have recognized that the constitutional rights of students in public schools are not automatically coextensive w......
  • Kay, In re
    • United States
    • California Supreme Court
    • January 30, 1970
    ...75 L.Ed. 1117) hand-held signs (University Committee to End War in Vietnam v. Gunn, supra, 289 F.Supp. 469), topical buttons (Burnside v. Byars (1966) 363 F.2d 744), and leafletting (see Fowler v. State (1956) 93 Ga.App. 883, 93 S.E.2d 183) cannot be prohibited, and if any audience particip......
  • Request a trial to view additional results
28 books & journal articles
  • Challenges facing LGBTQ youth
    • United States
    • Georgetown Journal of Gender and the Law No. XXIV-2, January 2023
    • January 1, 2023
    ...244. Henkle, 150 F. Supp. 2d at 1074–75 (quoting Chandler v. McMinnville Sch. Dist., 978 F.2d 524 (9th Cir. 1992) and Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)). 245. 20 U.S.C.A. § 4071 (West, Westlaw through Pub. L. No. 117-262). 246. Historic Ruling in ACLU Lawsuit: Abstinence-......
  • Rehabilitating Tinker: A Modest Proposal To Protect Public-School Students' First Amendment Free Expression Rights in the Digital Age
    • United States
    • Iowa Law Review No. 98-3, March 2013
    • March 1, 2013
    ...41. Chemerinsky, supra note 7, at 544–46. 42. Tinker , 393 U.S. at 506. 43. Id. at 504. 44. Id. at 509 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)). The Court, perhaps due to the fact that the students were punished for engaging in “silent, passive expression of opinion,” ......
  • Challenges facing LGBTQ youth
    • United States
    • Georgetown Journal of Gender and the Law No. XXIII-2, January 2022
    • January 1, 2022
    ...249. Henkle, 150 F. Supp. 2d at 1074–75 (quoting Chandler v. McMinnville Sch. Dist., 978 F.2d 524 (9th Cir. 1992) and Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)). 250. 20 U.S.C.S. § 4071 (through Pub. Law 117-52, approved Dec. 27, 2021). 251. 252. WALTER FRANK, LAW AND THE GAY RIG......
  • Freedom of Speech in School and Prison
    • United States
    • University of Whashington School of Law University of Washington Law Review No. 85-1, September 2015
    • Invalid date
    ...F. Supp. 971, 972 (S.D. Iowa 1966). 54. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969) (quoting Burnside v. Byars, 363 F.2d 744, 749 (1966)). For a more thorough discussion of the Tinker standard, see Aaron H. Caplan, Public School Discipline for Creating Uncensored ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT