Shanley v. Northeast Ind. Sch. Dist., Bexar County, Tex.

• Decision Date: 29 June 1972
• Docket Number: No. 72-1264.,72-1264.
• Parties: Mark Stephen SHANLEY, by Next Friend, et al., Plaintiffs-Appellants, v. NORTHEAST INDEPENDENT SCHOOL DISTRICT, BEXAR COUNTY, TEXAS, etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

462 F.2d 960 (1972)

Mark Stephen SHANLEY, by Next Friend, et al., Plaintiffs-Appellants, v. NORTHEAST INDEPENDENT SCHOOL DISTRICT, BEXAR COUNTY, TEXAS, etc., et al., Defendants-Appellees.

No. 72-1264.

United States Court of Appeals, Fifth Circuit.

June 9, 1972.

Rehearing Denied June 29, 1972.

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Gerald H. Goldstein, San Antonio, Tex., Leonard J. Schwartz, ACLU of Ohio, Columbus, Ohio, for San Antonio Civil Liberties Union.

Maury Maverick, Jr., San Antonio, Tex., for Texas Civil Liberties Union.

Emerson Banack, Jr., San Antonio, Tex., for defendants-appellees; Foster, Lewis, Langley, Gardner & Banack, San Antonio, Tex., of counsel.

Before WISDOM, GOLDBERG and CLARK, Circuit Judges.

GOLDBERG, Circuit Judge:

It should have come as a shock to the parents of five high school seniors in the Northeast Independent School District of San Antonio, Texas, that their elected school board had assumed suzerainty over their children before and after school, off school grounds, and with regard to their children's rights of expressing their thoughts. We trust that it will come as no shock whatsoever to the school board that their assumption of authority is an unconstitutional usurpation of the First Amendment.

Appellants, Mark S. Shanley, Clyde A. Coe, Jr., William E. Jolly, John A. Alford, and John Graham, were seniors at MacArthur High School in the Northeast Independent School District of San Antonio. At least they were students there save for a period of three days during which they were suspended for violating a school board "policy." Each of the students here was considered a "good" or "excellent" student. All were in the process of applying for highly competitive slots in colleges or for scholarships. The three days of zeros that resulted from the suspensions substantially affected their grade averages at a critical time of their educational careers.

The occasion of the suspension was the publication and distribution of a so-called "underground" newspaper entitled "Awakening." The newspaper was authored entirely by the students, during out-of-school hours, and without using any materials or facilities owned or operated by the school system. The students distributed the papers themselves during one afternoon after school hours and one morning before school hours. At all times distribution was carried on near but outside the school premises on the sidewalk of an adjoining street, separated from the school by a parking lot. The students neither distributed nor encouraged any distribution of the papers during school hours or on school property, although some of the newspapers did turn up there. There was absolutely no disruption of class that resulted from distribution of the newspaper, nor were there any disturbances whatsoever attributable to the distribution. It was acknowledged by all concerned with this case that the students who passed out the newspapers did so politely and in orderly fashion.

The "Awakening" contains absolutely no material that could remotely be considered libelous, obscene, or inflammatory. In fact, the content of this so-called "underground" paper is such that it could easily surface, flower-like, from its "underground" abode. As so-called "underground" newspapers go, this is probably one of the most vanilla-flavored ever to reach a federal court.

The five students were suspended by the principal for violation of school board "policy" 5114.2 which reads in pertinent part:

"Be it further resolved that any attempt to avoid the school\'s established procedure for administrative approval of activities such as the production for distribution and/or distribution of petitions or printed documents of any kind, sort, or type without the specific approval of the principal shall be cause for suspension and, if in the judgment of the principal, there is justification, for referral to the office of the Superintendent with a recommendation for expulsion . . ."

Northeast Independent School District "policy" 5114.2 at 2-3, adopted November 20, 1969 emphasis added.¹

The students requested a hearing before the full school board, which was transcribed by a court reporter at the students' request and expense. Counsel for the students and the school board were present at the hearing. The students argued before the board that, after consulting with an attorney and a professor at a local law school, they had concluded that the regulation in question simply did not apply to conduct exercised entirely outside school hours and off school premises.²

The school board affirmed the suspensions one day later.

Objecting to the school board's bootstrap transmogrification into Super-Parent, the parents of the five affected students sought both temporary and permanent injunctive relief as next-friends in the federal courts, requesting that the school board be enjoined from entering the zeros into the students' permanent records and from prohibiting the distribution of the "Awakening" off campus and outside school hours. The district court denied all relief, dismissing the case on its own motion as "wholly without merit."³ The district court also denied the students' request for an injunction pending appeal to this court, F.R.Civ.Pro. 62(c), and the students immediately appealed. On an emergency basis this court expedited the appeal and enjoined the school board from entering the zeros that resulted from the suspensions into the students' records and from refusing to afford the students a reasonable opportunity to complete and submit for academic credit the work that they had missed as a result of the suspensions, pending this appeal. F.R.App.Pro. 8; F.R.Civ.Pro. 62(g).⁴

That courts should not interfere with the day-to-day operations of schools is a platitudinous but eminently sound maxim which this court has reaffirmed on many occasions. See e. g., Burnside v. Byars, 5 Cir. 1966, 363 F.2d 744; Blackwell v. Issaquena County Board of Education, supra; Ferrell v. Dallas Independent School District, 5 Cir. 1968, 392 F.2d 697, cert. denied, 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125; Karr v. Schmidt, 5 Cir. 1972 (en banc), 451 F.2d 1023. This court laid to rest more than a decade ago the notion that state authorities could subject students at public-supported educational institutions to whatever conditions the state wished. Dixon v. Alabama State Board of Education, 5 Cir. 1961, 294 F.2d 150, cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193. And of paramount importance is the constitutional imperative that school boards abide constitutional precepts:

"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, 1943, 319 U.S. 624, 637, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628, 1637. The school board insists that "policy" 5114.2 is constitutional both "on its face" and "as applied" to the suspensions meted out under the circumstances of this case.

This case is anomalous in several respects, a sort of judicial believe-it-or-not. Essentially, the school board has submitted a constitutional fossil, exhumed and respired to stalk the First Amendment once again long after its substance had been laid to rest. Counsel for the school board insists vigorously that education is constitutionally embraced solely by the Tenth Amendment, leaving education entirely without the protective perimeters of the rest of the Constitution. We find this a rather quaint approach to the constitutional setting of education in light of West Virginia State Board of Education v. Barnette, supra; Tinker v. Des Moines Independent Community School Dist., 1969, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731; Brown v. Board of Education of Topeka (Brown I), 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Brown v. Board of Education (Brown II), 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083; Bolling v. Sharpe, 1954, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884; Cooper v. Aaron, 1958, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, 19; Aaron v. Cooper, 8 Cir. 1958, 261 F.2d 97; Griffin v. Prince Edward County School Board, 1964, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 754, to cite only a few cases.⁵ Even the educational progeny of Plessy v. Ferguson, 1896, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, held that the manner in which a state operated its public school system must be subject to constitutional review. See e. g., Missouri ex rel. Gaines v. Canada, 1938, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; Sweatt v. Painter, 1950, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114; McLaurin v. Oklahoma State Regents, 1950, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149. The recent cases involving so-called "underground" newspapers or other modes of expression in high schools relate almost entirely to the circumstances under which a school board can constitutionally limit expression during class hours and on school premises. See, e. g., Burnside v. Byars, supra; Tinker v. Des Moines Independent Community School Dist., supra; Eisner v. Stamford Board of Education, 2 Cir. 1971, 440 F.2d 803; Scoville v. Board of Education of Joliet Twp., 7 Cir. 1970, 425 F.2d 10; Riseman v. School Committee of Quincy, 1 Cir. 1971, 439 F.2d 148. Our case involves the less difficult question of conduct that is removed from the school milieu in exercise and in effect. Since school boards have rarely asserted the breadth of authority that the Northeast School District "policy" attempts to assert here, the constitutional standards are not entirely embraced by precedent. It is clear, however, that the authority of the school board to balance school discipline against the First Amendment by forbidding or punishing off-campus activity cannot exceed its authority to forbid or punish on-campus activity. Therefore, we must first examine the authority of the school board to order the...