Quarterman v. Byrd

• Citation: 453 F.2d 54
• Decision Date: 26 November 1971
• Docket Number: No. 71-1282.,71-1282.
• Parties: Mary E. QUARTERMAN, as Next Friend of her minor son, Charles C. Quarterman, Appellant, v. F. D. BYRD, individually and as Superintendent of the Cumberland County Schools and his successors, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

453 F.2d 54 (1971)

Mary E. QUARTERMAN, as Next Friend of her minor son, Charles C. Quarterman, Appellant, v. F. D. BYRD, individually and as Superintendent of the Cumberland County Schools and his successors, et al., Appellees.

No. 71-1282.

United States Court of Appeals, Fourth Circuit.

Argued October 6, 1971.

Decided November 26, 1971.

James E. Keenan, Durham, N. C. (Paul & Keenan, Durham, N. C., on brief), for appellant.

Cyrus Faircloth, Fayetteville, N. C., of counsel (Lester G. Carter, Jr., of Carter & Faircloth, of counsel, and James R. Nance, Sr., and Nance, Collier, Singleton, Kirkman & Herndon, Fayetteville, N. C., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, and WINTER and RUSSELL, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

At the time of the commencement of this action, the plaintiff was a tenth-grade high school student at Pine Forest High School near Southern Pines, North Carolina.

Among the regulations of Pine Forest High School were the following, designated as General School Rules 7 and 8:

"7. Each pupil is specifically prohibited from distributing, while under school jurisdiction, any advertisements, pamphlets, printed material, written material, announcements or other paraphernalia without the express permission of the principal of the school.

"8. All students shall be subject to suspension or dismissal by the principal, who willfully and persistently violate the rules of the school, or who may be guilty of immoral or disreputable conduct, during school term or out of school term whether on school property or not, or who may be a menace to the school as by law provided."

Authority to punish under such rules was authorized under North Carolina General Statute, Sections 115-147.¹

On November 19, 1970, the plaintiff violated Rule 7, as quoted supra, by distributing in school an "underground" newspaper. For such infraction, he was suspended for ten school days and placed on probation. Some two months later, on January 29, 1971, he again distributed without permission, in violation of the school rule, an "underground" paper in which one of the articles concluded in large capital letters with this statement:

". . . WE HAVE TO BE PREPARED TO FIGHT IN THE HALLS AND IN THE CLASSROOMS, OUT IN THE STREETS BECAUSE THE SCHOOLS BELONG

TO THE PEOPLE. IF WE HAVE TO—WE\'LL BURN THE BUILDINGS OF OUR SCHOOLS DOWN TO SHOW THESE PIGS THAT WE WANT AN EDUCATION THAT WON\'T BRAINWASH US INTO BEING RACIST. AND THAT WE WANT AN EDUCATION THAT WILL TEACH US TO KNOW THE REAL TRUTH ABOUT THINGS WE NEED TO KNOW, SO WE CAN BETTER SERVE THE PEOPLE!!!"

On account of this second violation, he was again suspended for ten school days.

At this point, the plaintiff, suing both individually and as a representative of a class, began this action, seeking both a declaratory judgment that Rule 7 was violative of his First Amendment rights and a temporary and permanent injunction against the enforcement of his suspension and any other punishment for his violation of such rule, as well as damages. Following the filing of this action, he applied to the District Court for temporary injunctive relief pending the disposition of the cause. The District Court denied the application and proceeded to stay the action until there had been an exhaustion of State administrative and judicial remedies by the plaintiff. From this order, the plaintiff has appealed to this Court. Incident to such appeal, he applied to Honorable J. Braxton Craven, Jr., Circuit Judge, under Rule 8, for injunctive relief pending the appeal. Judge Craven granted such relief, but added:

"Provided, however, that nothing contained herein shall be construed to prevent school authorities from enforcing discipline and preventing disruption of classes and other school activities, and to implement such purposes school authorities may, if so advised, prevent distribution of printed material during classes and at other times and places where such distribution is reasonably thought to be disruptive of normal school activity."

We vacate the stay of proceedings entered by the District Court, grant declaratory judgment and sustain injunctive relief as against the application of Rule 7 as presently drafted.

I.

The contention that this action, primarily for a declaratory judgment of the unconstitutionality of the school rule, should be stayed pending exhaustion of State remedies is without merit. Were the issue simply a matter of discretionary school discipline, we might, recognizing that "Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint",² appropriately defer to the "expertise" of the school authorities and remand the plaintiff to his administrative remedies within the school hierarchy. Press v. Pasadena Independent School District (D.C. Tex.1971) 326 F.Supp. 550, 565. Even if the issue were whether the content of the challenged publication justified a judgment of "disruptive potential" sufficient to remove First Amendment protection against prior restraint, we would be inclined to give great, though not final, weight to the opinion of the school authorities. This is so because it is not the policy of Federal Courts to "intervene in the resolution of conflicts which arise in the daily operation of the school systems and which do not directly and sharply implicate basic constitutional values." Epperson v. Arkansas, supra (393 U.S. at p. 104, 89 S.Ct. at p. 270). Actually, Tinker v. Des Moines School Dist. (1969) 393 U.S. 503, 507, 89 S.Ct. 733, 737, 21 L.Ed.2d 731, the leading case on student constitutional rights, "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." And in prescribing general conduct within the school, the school authorities must "have a wide latitude of discretion, subject only to the restriction of reasonableness." Davis v. Ann Arbor Public Schools (D.C.Mich.1970) 313 F. Supp. 1217, 1226; Barker v. Hardway (D.C.W.Va.1968) 283 F.Supp. 228, 235, aff. 4 Cir., 399 F.2d 638, cert. den. 394 U.S. 905, 89 S.Ct. 1009, 22 L.Ed.2d 217. But the issue posed by the plaintiff in this case as to the validity of the rule is not a simple matter of school discipline; it is not related to any question of state law; it deals "directly" and "sharply" with a fundamental constitutional right under the First Amendment. That constitutional claim under the Federal Constitution, as Judge Craven observed in his order granting injunctive relief pending appeal, is properly justiciable in the federal courts. School administrative procedures provide no satisfactory alternative for the resolution of such federal constitutional claim and the plaintiff's choice of a federal forum instead of the state forum in a suit filed under Section 1983, U.S.C. is to be respected. The District Court accordingly erred in staying this action and requiring an exhaustion of State remedies, preliminary to any right to vindicate federal constitutional claims in a federal court. Section 1983, 42 U.S.C.; Monroe v. Pape (1961) 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492; McNeese v. Board of Education (1963) 373 U.S. 668, 671-674, 83 S.Ct. 1433, 10 L.Ed.2d 622; Lewis v. Kugler (3d Cir. 1971) 446 F.2d 1343, 1346.

II.

Though it might well be argued that the language in the publication distributed by the plaintiff on January 29, 1971, as quoted supra, was inflammatory and potentially disruptive,³ the plaintiff was not disciplined because of the content of the publication but because he had violated the regulation prohibiting the distribution of printed material without permission.⁴ We are, therefore, not called upon in this appeal to assess the content of the publication; we are concerned only at this point with the constitutional validity of the regulation, for violation of which the plaintiff was disciplined.⁵

III.

The regulation, assailed by plaintiff, is facially invalid. Its basic vice does not lie in the requirement of prior permission for the distribution of printed material, though such requirement is manifestly a form of prior restraint of censorship. Free speech under the First Amendment, though available to juveniles and high school students, as well as to adults, is not absolute and the extent of its application may properly take into consideration the age or maturity of those to whom it is addressed. Thus, publications may be protected when directed to adults but not when made available to minors,⁶ or, as Justice Stewart emphasized it in his concurring opinion in Tinker, First Amendment rights of children are not "co-extensive with those of adults". Similarly, a difference may exist between the rights of free speech attaching to publications distributed in a secondary school and those in a college or university.⁷ It is generally held that the constitutional right to free speech of public secondary school students may be modified or curtailed by school regulations "reasonably designed to adjust these rights to the needs of the school environment." Antonelli v. Hammond (D.C.Mass.1970) 308 F.Supp. 1329, 1336.⁸ Specifically, school authorities may by appropriate regulation, exercise prior restraint upon publications distributed on school premises during school hours in those special circumstances where they can "reasonably `forecast substantial disruption of or material interference with school activities'" on account of the distribution of such printed material.⁹ If a reasonable basis for such a forecast exists, it is not necessary that the school stay its hand in exercising a power of prior restraint "until disruption actually occurred." Butts v. Dallas Independent School District (5th Cir. 1971) 436 F.2d 728, 731; Norton v. Discipline Committee of East Tenn. State Univ., supra, 419 F.2d at p. 199. The school authorities are not required to "wait...