Butts v. Dallas Independent School District

• Decision Date: 14 January 1971
• Docket Number: No. 29281.,29281.
• Citation: 436 F.2d 728
• Parties: Ruth J. BUTTS et al., Plaintiffs-Appellants, v. DALLAS INDEPENDENT SCHOOL DISTRICT and Nolan Estes, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

436 F.2d 728 (1971)

Ruth J. BUTTS et al., Plaintiffs-Appellants, v. DALLAS INDEPENDENT SCHOOL DISTRICT and Nolan Estes, Defendants-Appellees.

No. 29281.

United States Court of Appeals, Fifth Circuit.

January 14, 1971.

Marvin Menaker, W. D. Masterson, Atty., Robert Goodfriend, Dallas, Tex., for plaintiffs-appellants.

Franklin E. Spafford, Warren Whitham, Dallas, Tex., for defendants-appellees.

Before RIVES and SIMPSON, Circuit Judges, and NICHOLS, Judge of the Court of Claims.^*

NICHOLS, Judge:

Plaintiffs, minors, brought this action by their next friends in the United States District Court for the Northern District of Texas, and appeal from its final judgment dismissing their complaint. We reverse.

The defendants are the Dallas Independent School District, in whose schools plaintiffs were enrolled, and Dr. Nolan Estes, the Superintendent. The action was said to arise under the Fourteenth Amendment and 42 U.S.C. § 1983, which reads as follows:

* * * * * *

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. * * *

The alleged wrong was in defendant's refusal to allow plaintiffs to wear black armbands in school on October 15, 1969, and their anticipated continued refusal on later dates. Plaintiffs sought an injunction, a declaratory judgment, and nominal damages of $1.00. The District Judge conducted a hearing and took testimony on a prayer for a temporary injunction, but by stipulation the parties agreed that the hearing and his opinion should be "disposition on merits."

Defendants urge that the School District is immune from suit under § 1983, but this circuit has recently held that such immunity exists only with respect to money damages and not as to equitable relief. Harkless v. Sweeney Independent School District, 427 F.2d 319 (5th Cir. 1970). See also Mayhue v. City of Plantation, Florida, 375 F.2d 447-451 (5th Cir. 1967). We treat the claim for $1.00 damages as waived. No evidence was offered to show pecuniary injury in any amount.

Defendants also say that plaintiffs do not belong to the class protected by § 1983 because the alleged wrong was not inflicted because of race. The absence of a racial question has been ignored in many cases under § 1983, e. g., Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Trister v. University of Mississippi, 420 F. 2d 499 (5th Cir. 1969), and is expressly rejected by this circuit in construing the closely related criminal provisions of 18 U.S.C. § 242. Miller v. United States, 404 F. 2d 611, 612 (5th Cir. 1968).

Plaintiffs wish to secure a declaratory judgment condemning part of a regulation of the School Board as unconstitutionally vague and overbroad. Identified as Regulation 5133(1) (a) (10), it reads as follows:

(10) Wearing at school any special garb, haircuts, or unusually distracting insignia designed to distinguish members in an excessive way from other students.

The Regulation as a whole is written to implement a Texas statute which undertakes to drive "social clubs," i.e., fraternities, sororities and secret societies from the public schools. It defines certain acts the Board believes to be prohibited, among others those in the paragraph above quoted. The "members" are obviously members of social clubs. The record here reflects that the plaintiffs wished to wear black armbands to show their opposition to United States involvement in the Vietnam hostilities. An organization based in Washington called the National Moratorium Committee had suggested that they do this, and in a loose way they were its supporters, but there is nothing to show it had members in the ordinary sense, as a social club does. In any event, its purposes were political, not social. A separate section of Regulation 5133, not attacked, deals with participation of students in political organizations. Both sides in this litigation, for different purposes of their own, no doubt, seem to agree that paragraph 10 has something to do with this case. Nevertheless, it is an effort to deal with issues wholly distinct from those involved here, and we think it would be improper for us to make any pronouncement upon it. We are not bound by counsels interpretation of this document. Pitcairn v. American Refrigerator Transit Co., 101 F.2d 929 (8th Cir.), cert. denied, 308 U.S. 566, 60 S.Ct. 78, 84 L.Ed. 475 (1939).

The underbrush cleared away, the main issue of the case emerges. The Supreme Court held in Tinker v. Des Moines Independent Community School District, supra, 393 U.S. at 505, 89 S.Ct. 733, that wearing black armbands in school to protest the Vietnam involvement was "closely akin to pure speech" protected by the First Amendment and could not be prohibited when it did not cause disruption of school discipline or decorum. The Court refers with apparent approval to companion cases in this court: Burnside v. Byars, 363 F.2d 744 (5 Cir., 1966); and Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (5 Cir., 1966). Both involved prohibition against wearing SNCC buttons, by the school authorities. In Burnside there was no disruption and the authorities were enjoined. In Blackwell there was (in the form of button-wearing students trying to force buttons on the others) and the complaint was dismissed. The duty of the courts in future cases of the same kind therefore seems clear enough, and the trial judge properly proceeded to examine in detail the alleged disruptions and threats of disruption that were considered by the Dallas School Officials on and just before October 15, 1969. To this we now turn.

The Vietnam moratorium of October 15, 1969, may end up as a footnote to history but it was tremendous in anticipation. The focal event was to be a mass peaceful demonstration of young people, about the White House in Washington, D. C., but the sponsors issued a manifesto to high school children elsewhere, among others, calling on them to boycott their classes that day, or attend them wearing black armbands as symbols of protest. Someone published a local mimeographed flyer to the same effect. These found their way into the hands of the defendants' school authorities, who concluded that October 15 probably would be a day of disruption in their schools. A former pupil of the District, not directly connected with the Committee or its supporters, threatened to bomb one of the defendants' schools. As the day approached, disruptive sit-ins did occur in the schools of a nearby community, not under defendants' jurisdiction. The organizers of this effort failed, however, to influence defendants' pupils.

The morning of October 15, a Dallas police officer called on school officials to advise that his department expected trouble and to offer what help he could. A group of students massed across the street from one of the schools displaying a large banner reading "Try Peace." A youth of contrary mind snatched this banner and ran away with it. Apparently, however, the schools opened and classes were attended as usual, though perhaps not with full efficiency.

Not all students supported the protest. Besides the one mentioned above, others wore white armbands. None of them testified nor were any manifestos offered, which were attributed to them, and their precise position thus is not in the record, except that they opposed what the black armbands favored. There was also a clique who evidently went further, revering the memory of Adolf Hitler and seeking to establish (or re-establish) white supremacy in this country. One of these soon after October 15, appeared at school wearing a large "swastika" necklace and a like symbol emblazoned on his jacket. He was, of course, speedily removed from the scene.

On learning of the plan to wear black armbands in school, Dr. Estes decided, as he testified, that it was disruptive and contrary to long standing school policy. In support of the long standing of this policy, however, he proffered Regulation 5133, which, as indicated above, fails to show it. The trial court's finding as to the long standing of the policy appears to lack support of substantial evidence. If it makes any difference, it would seem the policy was improvised ad hoc for the occasion. Other "peace symbols" until then had adorned the garments of students without evoking any administration concern. Indication that the policy was new appears also in the fact that the principals of some individual schools were slow in getting the word, with the result that in their schools black armbands...