Full opinion text
MEMORANDUM OPINION SEALS, District Judge. This action was instituted on behalf of two Houston high school students who were expelled from Sharpstown Junior/Senior High School for the remainder of the 1968-1969 term because of their involvement in the production and distribution of a “newspaper” called the Pflashlyte (see appendix A.) which criticized school officials. The complaint was filed pursuant to 42 U.S.C.A. § 1983 and 28 U.S.C.A. § 1343(3) and it prayed for an injunctive order reinstating the two students and also for declaratory and injunctive relief in an attack against the regulations of the Houston Independent School District pursuant to the Declaratory Judgment Act, 28 U.S. C.A. § 2201, and Rule 23 of the Federal Rules of Civil Procedure governing class actions. I. Sharpstown Junior/Senior High School is one of Houston’s newest schools having opened only a year ago. Sharpstown is a large school with age levels varying from the seventh to the twelfth grade. This first year for Sharpstown was also the first experience for Mr. Coy P. Stewart as principal of a senior high school; he had just completed three years as principal of McReynolds Junior High when Sharpstown opened. Dan Sullivan and Mike Fischer were seniors at Sharpstown during this first year — the 1968-1969 school term. Dan had attended Bellaire High School the previous year and Mike had gone to Lee High School. Both were “B” students. Their conduct records reflect a few minor infractions but neither student appears to have been a discipline problem. In fact, their conduct grade was “good.” Their school records and their actions before this court point to the conclusion that Dan and Mike are rather typical young American men of high moral character. After their first several months at Sharpstown, Dan and Mike along with some other students became concerned with the absence of any express school regulations governing student conduct. The complaint was, in essence, that a student never knew when he was violating “regulations” since no rules had ever been written down and distributed. Dan, for instance, was told that wearing a neckerchief around his neck violated “school regulations.” Confusion also existed concerning the use of a park across from the school before classes began in the morning. Sometimes it was prohibited and sometimes it was not. Concern for this problem led to the organization of a “rally” after school one day in a nearby park. Students and teachers were present and they all sat on the grass and listened to speeches by students who used the chance to air some grievances. The discussion was interrupted by the physical interference of certain Sharpstown High athletic coaches who threw books around the park, ripped up students’ notebooks and accused students of being Communists and Fascists. There were other incidents of harassment by gym coaches which added to the list of student complaints. On one occasion, Dan Sullivan was called into a coach’s office and subjected to strong verbal abuse. When Dan stepped aside as someone entered the office door so that he had to lean against one of the coach’s desks, the coach ordered him to get off that desk or he would get his “block knocked off.” In addition, it appears that some of the students in Mike Fischer’s gym class who attended the rally were given “grade cuts.” Mike’s gym instructor later informed him that because of the present lawsuit Mike would receive an “F” in the course if the instructor could “get away with it.” After the incident at the “rally,” some of the students decided to wear small American flags in their shirt lapels as a show of patriotism. Dan Sullivan had called the Houston office of the Federal Bureau of Investigation to ask if this was an acceptable way to display the flag and upon being assured that it was proper, he wore a flag to school. Dan was informed by a coach to remove the flag on penalty of suspension from school. The flag, the coach said, “was disruptive.” Another incident concerned solicitations for various fund-raising projects during school hours. Dan, Mike and a friend named Larry Craven approached Mr. Stewart about sponsoring a Red Cross drive for the starving people of Biafra. Dan had called the American Red Cross and they had expressed enthusiasm for the project. Mr. Stewart told the boys that such a program could not be allowed because it was explicitedly prohibited by the downtown office to have any kind of solicitation from students during school time. The boys suggested small unobtrusive cans with slots to be placed on lunch tables. Stewart said this too was against “regulations.” Dan later called the downtown office and was told that it was up to the principal to decide which fund drives should be allowed within the school. Several weeks later, Mr. Stewart announced that as part of the senior project the school was to have a fund drive to collect $500.00 for the purchase of tropical plants, to be placed in a large planter box. Each student was expected to contribute twenty-five cents. Dan was asked by his physics teacher to make his contribution, not only during class time, but while an exam was in progress. When he refused to contribute saying it seemed somewhat hypocritical, Dan was lectured by the teacher and was told that his mind was being taken over by Communists. Some time after these incidents, Mike and Dan decided they would put together a “newspaper” to voice their dissatisfactions and beliefs. Both were acquainted with one Walter Spinks who had attended Lee High School the year before and was then a freshman at the University of Houston. Spinks said it would be possible to have the printing done at the University’s print shop. Only campus-approved organizations had access to the print shop but Spinks knew some people who were members of the Students for a Democratic Society (SDS), which was a University approved organization, who would let them use the SDS name on a University work order so that the campus print shop would do the printing. Dan drafted the first “newspaper” which was more of a short introductory issue for the forthcoming first edition of the Pflashlyte; it set out the aims and goals of the editors. The boys took the stencil and money for the printing to the University of Houston and while there Mike and Dan attended a meeting of the SDS not only out of curiosity but also to be sure the printing would be done. The meeting was held in the World Affairs room of the student center and Mike and Dan soon found that SDS was very much against their beliefs. They attended three other meetings but only to insure that their “newspaper” would be printed. When the copies of the introductory issue were received from the printer, the boys found that the letters SDS had been printed at the bottom of each page. Since they wanted no connection with this organization, they cut off the bottom portion of each of the 125 sheets so as to remove the SDS initials. The stencil for the second “newspaper”, the first one bearing the name Pflashlyte, was delivered to the printer soon after the first one. The boys were able to pick up these copies the day after they received the copies of the first issue and so only a few copies of the “introductory” edition were ever distributed. When the second edition was finished Mike and Dan found that it had been printed on both sides of legal size paper instead of on two sheets. They had ordered 2,000 sheets thinking they would get 1,000 copies but now they had 2,000 copies. Also, the name “Students for a Democratic Society” was printed on the back side in a position high enough on the page so that it could not be cut off without removing a portion of the printing on the front side. On the third edition, the letters SDS were in the middle of the reverse side. The second edition was written rather . hurriedly and since the boys wanted to try to produce something with a higher standard of quality, they spent more time on the third edition. Several books on constitutional law and American government were obtained from a local public library and Mike and Dan included research from these books in their “newspaper.” One such book was Mr. Justice Douglas’ The Living Bill of Rights. Others included a classroom textbook entitled American Government by Cloudner; the Bill of Rights Reader by Konvitz; and a third called Leading Constitutional Cases. Their research efforts were in the evenings and were not part of any school courses. Mike and Dan began distribution of the introductory paper on February 27, 1969 and then continued on the 28th. The second edition was ready by the 28th so the students’ efforts were directed at distributing it on that day, which was a Friday, and then again during the early part of the following week. Several other students helped Mike and Dan distribute the “newspaper” and they were instructed to not hand out the paper on school grounds or during school hours. They were also asked by Mike and Dan to tell students not to take the paper into the school with them but if they had to do so, to keep it in a notebook so that it would be out of sight. Distribution began in Landsdale Park just across the street from Sharpstown High. As students passed by on their way to classes they were given copies. Issues were later handed out at Sharps-town Shopping Center and at various shops where students were known to congregate. About 1,000 copies of the second edition were eventually distributed. Most students did as Mike and Dan requested but others did not. In one boys’ restroom, a stack of papers was found with a sign above it saying “take one.” Copies were also placed in a paper towel dispenser and some were found inside sewing machines in a girls' homemaking class. It also appears that some copies were found in classrooms during school hours. Teacher Don Ellisor found a student reading the Pflashlyte during class when she should have been working on an assignment. He took up the paper without disrupting the class. An English instructor, Mrs. Jeannine Wallace, had to take up papers from two students who were reading it during class. One student had laughed out-loud as she read and the teacher felt the need to take the paper from her. Mrs. Wallace had in the past taken up copies of the school-sponsored newspaper, The Torch, which students read in class. Mrs. Wallace also noticed somewhat more congestion in the halls as students made their way from one class to another. Mrs. Woodie Kendall, a seventh grade teacher at Sharpstown, took up a copy of the “newspaper” from five boys who were reading it before class began for their homeroom period. She also noticed more congestion in the halls and added that movement through the school had been a problem since the school had opened because the halls were rather narrow. Mrs. Cyril Hosley, a typing instructor, observed an unusually large number of students tardy in arriving for class on February 28, 1969 and the following week, but she did not know a specific reason for the tardiness. Mrs. Hosley did see copies of the Pflashlyte in her room but did not take them up as they had not created any disturbance. Math instructor Sidney Johnson was interrupted during a lecture by a student who twisted around in his seat to get a look at a copy of the paper held by the student behind him. Johnson immediately confiscated the copy, and sent both boys to the principal’s office. Another of Johnson’s classes was interrupted when a student tried to ask a question about the newspaper. Charles Smith, also a math teacher at Sharpstown, was interrupted during his class lectures. Students wanted to talk about the Pflashlyte as often as twice a day for two or three days and then only once a day thereafter. Assistant Principal Jackson attempted to summarize the disruptive effect on the school which resulted from the distribution of the Pflashlyte: Q. During that one-week period was there any disruption of the ordinary routine of the school or operations of the school which you believe is attributable to the fact that this paper was being circulated in the school ? * * * THE WITNESS: Sir, it will be virtually impossible for me to pinpoint a single incident. It would be my interpretation of the general attitude of the student body, which I couldn’t say that at such-and-such a time that happened. I work with it every day. THE COURT: You have a feeling for it? THE WITNESS: Yes, sir, I do. THE COURT: You have a feeling that the students’ attitude was a certain way ? THE WITNESS: There seemed to be a difference in the attitude is the way I would say it, a marked difference. Q. (By Mr. Cook) In what way was it different from the ordinary attitude ? A. Well— Q. Was it better or worse: A. Indifferent. I couldn’t describe it as being better. There seemed to be, the attitude seemed to be, I don’t know if its going to say what I, more concerned with something else. I wanted to say that you often see a group in the hall standing together and talking in between classes, passing time. You might see a group, a large group gathering at a lunch table. This in itself may or may not be attributed to something like this. It’s difficult to say. There seemed to be, if I might describe it this way, there seemed to be something of concern that was generally among the student body. Q. Would you say that there prevailed an attitude of preoccupation of something that doesn’t ordinarily go on in the school building? * * * THE COURT: Do you know a synonym for preoccupied? THE WITNESS: I would say that they had been, let me think a minute. They had something on their minds that was causing them to be of great concern. That’s my own choice of words. Tr. at 550-53. Sharpstown’s principal, Mr. Coy P. Stewart, first learned of the presence of the Pflashlyte in the school building on Friday, February 28, 1969, the first day of large scale distribution. He received a copy of the short “introductory” issue in the mail and soon after classes began a teacher brought in a copy of the second edition which had been taken from a student. As more and more copies came to the administrative office, not only from teachers but from students, he became quite anxious about the situation and resolved that the students responsible would be expelled immediately. Stewart launched an investigation into the matter and he and other administrative personnel questioned students throughout the school trying to learn the identity of Pflashlyte’s editors and distributors. He soon learned that two boys had been handing out the “newspaper” in Landsdale Park before school started in the morning. Stewart obtained descriptions of the boys as his investigation continued into the following week. By the middle of the week Stewart began to suspect Dan S.ullivan and Mike Fischer. On Wednesday, March 5, 1969, Dan was called in by Mr. Stewart who began asking him random questions about his family, his teachers and about a theme paper Dan had written for an English class. It later developed that other Sharpstown students at the direction of administrative personnel had quietly filed past the open door of Stewart’s office so that Dan could be viewed and identified as one of those who had distributed the Pflashlyte. Mr. Stewart made no mention of the “newspaper” to Dan. On that Friday, March 7, 1969, Dan and Mike were called in separately to talk with Mr. Stewart and Assistant Principal Jackson. Both boys admitted that they had distributed the paper. Stewart advised them that their actions were serious violations of “school regulations” especially because of their involvement in a “secret organization.” However, neither boy was informed of what disciplinary action, if any, would be taken nor were they offered the opportunity to cease their actions so as to mitigate their punishment. The next contact Mike had with the administration was Wednesday, March 12, 1969. He came to the principal’s office and found that his father was already conferring with Mr. Stewart. Mike was told he was being expelled for the remainder of his senior year. Dan was told the following day that he too, was expelled. Stewart phoned Dan’s mother who came to the school for a conference. She asked if Dan could stay in school if the paper were discontinued but Stewart said this was too serious. Mike Fischer spoke to Mr. Stewart again on Thursday, the 13th, and offered to cease all activities concerning the “newspaper” but Stewart refused saying Mike’s “attitude” was bad. It was clearly established that both boys were expelled solely for their involvement with the Pflashlyte and not for any previous misconduct as the defendants have argued. Mr. Stewart did indicate to both boys that he would try to help them obtain admittance to another Houston High School. Mrs. Fischer went to see the principal at Lee High School the day after Mike was suspended but was told by the Assistant Principal that the principal was out of town and that he had left instructions to admit no new students except those who had just moved into the district. She also called Bellaire High School but was unable to contact the principal. St. Thomas High School refused acceptance of a transfer because it was too late in the school year and Marion High School gave Mrs. Fischer the same answer. Mrs. Fischer also telephoned Mr. Myrl Johnson, Assistant Superintendent for Secondary Schools, in an effort to get Mike back in school. She learned nothing more than did Mike and Dan when they went downtown to see Mr. Johnson. He told them that he affirmed Mr. Stewart’s action and that the only recourse for the boys was to try to obtain admittance to another school. Johnson said that both the sending and receiving principal had to approve a transfer and that Mike and Dan should just work hard at seeing principals until they found one that would accept them. Johnson suggested that they try Davis High School and Madison High School, even though both schools are on the other side of town from Sharpstown. Johnson also offered to try and help the boys in their effort to find a principal who would accept them but that he could not help them in any other way even though he had the authority to overrule Mr. Stewart’s action. Johnson admitted to Mike and Dan that he was afraid their chances of getting into another school were' slim. II. Plaintiffs’ complaint charged that these students were expelled from school in violation of their rights to freedom of speech and to due process of law as provided for in the First and Fourteenth Amendments to the United States Constitution. Plaintiffs also prayed for the entry of a judgment declaring unconstitutional the rules and regulations of the Houston Independent School District which were employed to suspend these students on the grounds that they are vague and overbroad. The defendants responded by arguing that their actions were justified in that the “newspaper” created such “disruption” to the school’s daily operation that the result was “complete turmoil” among students. Further, defendants contend that the contents of the “newspaper” amounted to an immediate advocacy of and incitement to disregard school administrative procedures and policies and that the paper was calculated to encourage insubordination to school authority on the part of other students. Defendants assert that their actions were justified in light of information that had been received to the effect that two so-called radical organizations, the Students for a Democratic Society and its high school affiliate, the Student Union for Democratic Schools, were attempting to “infiltrate” Houston high schools. Shortly after this suit was filed, this court entered a Temporary Restraining Order which required that the students be reinstated in school until a hearing could be held and the factual circumstances surrounding the expulsion explored. On April 9, 1969 hearing began to consider the plaintiffs’ application for entry of a preliminary injunction. At that time an Order was entered pursuant to Rule 65(a) (2), Federal Rules of Civil Procedure, that the action on the merits be advanced and consolidated with the hearing on the application for a preliminary injunction in an effort to expedite the final determination of the case. Before testimony began, defendants presented its motion to dismiss in whole or in part and its plea in abatement. Both motions were carried along with the case. After five days of trial, this court entered its informal Findings of Fact and granted a Preliminary In junetion to the effect that the two minor plaintiffs were to remain in school without the imposition of disciplinary action regarding the publication and distribution of the “newspaper.” Further, defendants were enjoined from disciplining the minor plaintiffs for the publication or distribution of other written materials away from school premises, (see Appendix B.) The court has also considered defendants’ motion to abate this action until plaintiffs have exhausted all available administrative remedies. Defendants’ motion is overruled on two grounds: (1) The doctrine of exhaustion of administrative remedies is not applicable to an action under Section 1983, Title 42, United States Code. Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). See also General Order of Student Discipline, 45 F.R.D. 133-143-144 (W.D.Mo. 1968); (2) It also appears that the two minor plaintiffs did in fact avail themselves of all the administrative remedies available to them. Assistant Superintendent Johnson testified that the boys’ only recourse after their suspension was to attempt to persuade a high school principal to accept their transfer. The evidence is clear that the minor plaintiffs and their parents made reasonable attempts but were unsuccessful. Johnson had said he thought their chances were slim and apparently he was correct. It does not appear that an appeal to the central administrative office was a procedure available to plaintiffs. But since Johnson informed Mike and Dan that he concurred in Mr. Stewart’s ruling, it appears that such a procedure would probably have been fruitless. Action was deferred by the court on defendants’ motion to dismiss. The first ground urged in support of this motion is that this court has no jurisdiction over that part of the case dealing with the alleged deprivation of procedural due process in the absence of any denial of substantive constitutional rights by defendants. The only authority presented by defendants is the recent decision of the United States Court of Appeals for the Eighth Circuit in Freeman v. Gould Special School District, 405 F.2d 1153 (8th Cir. 1969). That case concerned the due process claims of certain teachers who were dismissed from their jobs without having received minimal standards of procedural due process. The instant case involves the dismissal of students from school — an entirely different matter. A school board’s employment practices are irrelevant considerations in an analysis of its relationship with its students. Since this court is aware of no other reason why plaintiffs may not properly assert a lack of due process in the procedure followed in dismissing these students from school, the defendants’ motion to dismiss that part of the complaint is denied. See, e. g. Kelley v. Metropolitan Bd. of Education, 293 F.Supp. 485 (M.D.Tenn. 1968). Defendants have also moved to dismiss that part of the complaint which has been designated a class action. Plaintiffs have requested that they be allowed to maintain this suit as a class action pursuant to Rule 23, Federal Rules of Civil Procedure. Plaintiffs have designated a class composed of all the students presently enrolled in the secondary schools of the Houston Independent School District. Defendants contend that this designation is not proper under Rule 23 because the majority of Houston secondary students are not in sympathy with the views or methods of these plaintiffs and are, therefore, not “similarly situated.” This contention misses the point. All of the members of this class are subject to the same regulations of the Houston School District which have been alleged to be unconstitutional on their face and as applied. It is irrelevant to speculate how many students might need to invoke the first amendment as protection from official sanctions; the fact that each member is subject to the same specific sort of deprivation of constitutional rights as the representative parties is enough. This case is clearly maintainable as a class action pursuant to Sections (a) and (b) (2) of Rule 23. See generally Wright, Class Actions, 47 F.R.D. 169 (1969). During the period allowed to counsel for both parties for preparation of formal briefs on plaintiffs’ claim for permanent injunctive relief, defendants filed a second motion to dismiss. Counsel argues in this new motion that since the minor plaintiffs did return to Sharpstown High School as a result of this court’s orders and since both did graduate from that school at the end of the Spring term of 1969, that their causes of action are now moot. Further, defendants argue that inasmuch as the “representative parties” of the class action no longer have a justiciable dispute with defendants, these minor plaintiffs can no longer continue to properly represent this class within the meaning of Rule 23. This court does not agree that the minor plaintiffs’ causes are moot. The complaint in this cause expressly requested that the defendants be enjoined from maintaining any formal or informal record reflecting that disciplinary action was ever taken against these students for the acts in question. This question has not been resolved nor was action on it appropriate until the case became ripe for determination of the other prayers for permanent relief. A closely analogous case is Carafas v. La Vallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) in which the Supreme Court considered the contention that a petition for habeas corpus became moot when the petitioner was unconditionally released from prison: It is clear that petitioner’s cause is not moot. In consequence of his conviction, he cannot engage in certain businesses; he cannot serve as an official of a labor union for a specified period of time; he cannot vote in any election held in New York State; he cannot serve as a juror. Because of these “disabilities or burdens [which] may flow from” petitioner’s conviction, he has “a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him.” Fiswick v. United States, 329 U.S. 211, 222, 67 S.Ct. 224, 230, 91 L.Ed. 196 [203] (1946): On account of these “collateral consequences,” the case is not moot. Ginsberg v. New York, 390 U.S. 629, 633-634, n. 2, 88 S.Ct. 1274, 1277-1278, 20 L.Ed.2d 195 [200] (1968). Id. at 237, 88 S.Ct. at 1559. These minor plaintiffs may well suffer “collateral consequences” unless it is resolved by the final judgment of this court that they were wrongfully expelled. One specific example of such consequences would be the increased difficulty in obtaining admission to a college or university that these students might well encounter. The severe disciplinary action taken against these students amounts to a blot on their scholastic records that might well haunt them for years to come. Plaintiffs are entitled to a judgment one way or the other on the propriety of their conduct and at the same time the court is obliged to evaluate the actions of school officials. This evaluation directly involves the designated class as a whole and this court considers these minor plaintiffs to be proper and adequate representatives. Defendants’ second motion to dismiss is overruled. III. In February of this year, the Supreme Court clarified the constitutional principles governing the rights of school pupils to register dissenting opinions at school and the need for maintaining standards of discipline in public schools. In Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 505, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) the Court reversed the expulsion of a group of high school and junior high students who wore black armbands to class as a silent protest to this Nation’s involvement in the war in Vietnam. The majority opinion makes it abundantly clear that students do not shed their constitutional rights when they enter the high school campus: In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. As Judge Gewin, speaking for the Fifth Circuit said, school officials cannot suppress “expression of feelings with which they do not wish to contend.” Burnside v. Byars, supra, 363 F.2d at 749. Id. at 511, 89 S.Ct. at 739. Tinker very clearly applies the first amendment in its full force to the high school campus: In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Id. at 509, 89 S.Ct. at 738. However, as has always been the Court’s view of the first amendment, see Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), under Tinker, speech and assembly are subject to reasonable restrictions as to time, place, manner and duration: The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only an inevitable part of the process of attending school. It is also an important part of the educational process. A student’s rights therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions,even on controversial subjects like the conflict in Vietnam, if he does so “without materially and substantially interfer[ ing] with appropriate discipline in the operation of the school” and without colliding with the rights of others. Burnside v. Byars, supra, 363 F.2d at 749. But conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior —materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guaranty of freedom of speech. Id. at 512-513, 89 S.Ct. at 739-740. These limitations are closely analogous to the limitations that have been placed on demonstrations and pickets. Though they are exercising first amendment rights, demonstrators will not be allowed to interfere with normal automobile or pedestrian traffic on public streets or sidewalks because it is also a fundamental right of every citizen to travel free from unreasonable physical interference by others. Traffic is properly regulated by the police because it is said to be a legitimate interest of the public as a whole. See Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968); Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). The schools, then, should be able to control those activities which relate to or affect education. As the judges of the Western District of Missouri put it their General Order On School Discipline, 45 F.R.D. 133, 145 (1968): “In the field of discipline, scholastic and behavioral, an institution may establish any standards reasonably relevant to the lawful missions, processes, and functions of the institution.” Clearly then, freedom of speech, which includes publication and distribution of newspapers, may be exercised to its fullest potential on school premises so long as it does not unreasonably interfere with normal school activities. Administration can properly regulate the times and places within the school building at which papers may be distributed. Obviously, the first amendment does not require that students be allowed to read newspapers during class periods. Nor should loud speeches or discussion be tolerated in the halls during class time. A proper regulation as to “place” might reasonably prohibit all discussion in the school library. Administration may not, however, apply regulations as to “time” or “place” or “manner” in a discriminatory fashion. In Tinker, the school authorities did not prohibit the students from wearing all symbols of controversial significance, but only arm bands, while allowing such things as political buttons. One student even wore a Nazi Iron Cross and was not reprimanded. The Court said: Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible. 393 U.S. at 511, 89 S.Ct. at 739. It is also clear that if a student complies with reasonable rules as to times and places for distribution within the school, and does so in an orderly, non-disruptive manner, then he should not suffer if other students, who are lacking in self-control, tend to over-react thereby becoming a disruptive influence. Mr. Justice Douglas’ famous quote from Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1948) is particularly important to this issue: A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, [citation omitted] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. So, a student has the right to express himself while on school premises in a non-disruptive manner, subject to reasonable limitations concerning “time,” “place,” “manner” and “duration.” But what of off-campus activities? It is not clear whether the law allows a school to discipline a student for his behavior during free time away from the campus. Compare, Linde, Campus Law: Berkeley Viewed From Eugene, 54 Calif.L.Rev. 40, 50-51 (1966), with, General Order on Student Discipline, 45 F.R.D. 133, 145 (W.D.Mo.1968). In this court’s judgment, it makes little sense to extend the influence of school administration to off-campus activity under the theory that such activity might interfere with the function of education. School officials may not judge a student’s behavior while he is in his home with his family nor does it seem to this court that they should have jurisdiction over his acts on a public street corner. A student is subject to the same criminal laws and owes the same civil duties as other citizens, and his status as a student should not alter his obligations to others during his private life away from the campus. Arguably, misconduct by students during non-school hours and away from school premises could, in certain situations, have such a lasting effect on other students that disruption could result during the next school day. Perhaps then administrators should be able to exercise some degree of influence over off-campus conduct. This court considers even this power to be questionable. However, under any circumstances, the school certainly may not exercise more control over off-campus behavior than over on-campus conduct. Serious disciplinary action concerning first amendment activity on or off campus must be based on the standard of substantial interference with the normal operations of the school. These principles apply directly to this case. There is no question that these minor plaintiffs were engaged in acts of expression protected by the first amendment; indeed, excepting only oral expression, the publication of a “newspaper” is first amendment activity in its purest form. The crucial issue, then, is a factual question: did these two students materially and substantially interfere with the requirements of appropriate discipline in the operation of Sharpstown Junior/Senior High School? After hearing all the evidence, this court concluded that the distribution of the Pflashlyte had no such effect. Since then, a careful examination of the transcript of the testimony and of the briefs of counsel has not changed that opinion. The interruptions of class periods caused by the “newspaper” were minor and relatively few in number. It is of special significance to note that during the nine school days between the first appearance of the Pflashlyte and the expulsion of Mike and Dan, only one student “discipline card” was filled out at Sharpstown High which was in any way related to the “newspaper.” Moreover that one student was also being reprimanded for several other infractions as well as possession of a Pflashlyte. So called “underground” newspapers have sprung up in high schools all over the United States during the past year. Many have used harsh language and have advocated violence. The Pflashlyte was primarily intended as a discussion and comment upon problems affecting student-administrator relations. (see Appendix A.) The writers are generally critical of school policy but the criticism is on a mature and intelligent level. In the introductory issue, it is argued that improvement in the students’ relationship with school administrators can be accomplished only through the “sincere cooperation of all factions.” “Confrontation” it is stated, “would result in regression rather than progression.” These are not the words of one who is calculating to “incite insubordination.” Defendants’ objections are strongest toward a paragraph in the first issue entitled Pflashlyte which is captioñed “Edmund’s Thoughts.” Plaintiffs testified that this was intended to be a sarcastic “speech” by a hypothetical administrator. Although it does appear to hold school officials up to ridicule, its content does not even approach the “fighting words” of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), which are not protected by the first amendment since they are said to inflict injury by their very utterance. These two young men are subject to laws governing libel, slander and obscenity but it can hardly be concluded that his paragraph amounts to libel or that it is obscene. It is surely no more obscene than the sign hanging in the office of the school athletic coaches which in substance stated [p]ut your heart in this country or get your ass out of it” by use of small pictures of a heart and a donkey substituted for the words they symbolized. The contents of all three issues of the Pflashlyte are plainly the sort of speech protected by the first amendment. The manner in which the paper was distributed by these two students could by no stretch of the imagination be said to have created a state of “turmoil.” Both boys were off-campus, they did not hand out papers during school time and they even went so far as to encourage students not to take the paper into the school building and to keep it out of sight if they did so. If it was the disruption of classes and normal school activities that concerned school officials after the Pflashlyte was distributed, then why were those not disciplined who were disruptive? Apparently those unknown persons who placed issues in sewing machines and in paper towel dispensers have gone unnoticed. It is their misconduct in the manner in which they distributed the paper which should have been stopped, not the idea of printing newspapers itself. Defendants attempt to justify their actions by arguing that an organized student movement is attempting to “overthrow” the Houston school system and that the elimination of this “newspaper” and these students was necessary to prevent further “infiltration.” The court will resist the temptation to comment upon this position. At their very best, these considerations are irrelevant. These two boys have not advocated the overthrow of the United States Government or of the Houston school district. Indeed, their most subversive thoughts were about potted plants. It appears that Mike and Dan were disciplined because school officials disliked the Pflashlyte’s contents. The Constitution prohibits such action.' IV. Plaintiffs also contend that the procedure employed by Stewart in expelling Mike Fischer and Dan Sullivan does not meet minimal standards of procedural due process of law. In the important case of Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), cert. denied, 385 U.S. 930, 82 S.Ct. 368, 7 L. Ed.2d 193 (1961), the United States Court of Appeals for the Fifth Circuit held that school officials are clothed with governmental authority and that if their disciplinary actions can substantially injure an individual, such acts must comply with minimal procedural requirements of due process of law. The court outlined these requirements: We are confident that precedent as well as a most fundamental constitutional principle support our holding that due process requires notice and some opportunity for hearing before a student at a tax-supported college is expelled for misconduct. * * * They should, we think, comply with the following standards. The notice should contain a statement of the specific charges and grounds which, if proven, would justify expulsion under the regulations of the Board of Education. The nature of the hearing should vary depending on the circumstances of the particular case. The case before us requires something more than an informal interview with an administrative authority of the college. By its nature, a charge of misconduct, as opposed to a failure to meet the scholastic standards of the college, depends upon a collection of the facts concerning the charged misconduct, easily colored by the point of view of the witnesses. In such circumstances, a hearing which gives the Board or the administrative authorities of the college an opportunity to hear both sides in considerable detail is best suited to protect the rights of all involved. This is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses, is required. * * * Nevertheless, the rudiments of an adversary proceeding may be preserved without encroaching upon the interests of the college. Id. at 158-159. See Kelley v. Metropolitan County Bd. of Education, 293 F. Supp. 485 (M.D.Tenn.1968); Esteban v. Central Missouri State College, 277 F. Supp. 649 (W.D.Mo.1967); Knight v. State Bd. of Education, 200 F.Supp. 174 (M.D.Tenn.1961); General Order on Student Discipline, 45 F.R.D. 133 (1968). The high school student perhaps even more than the university student needs careful adherence to concepts of procedural fairness and reasonableness by school officials. See Kelley v. Metropolitan Bd. of Education, supra. As minors they occupy a different status under the law and often are too inexperienced or immature to know how to protect themselves against charges of misconduct. Parents or guardians have legal obligations to children of high school age and common sense dictates that they should be included in any disciplinary action against their children which could result in severe punishment. Indeed it may be even more crucial that proper written notice of charges be provided to parents for often they do not know what has transpired at school. When severe discipline is contemplated —either expulsion or suspension for a substantial time — the student and his parents should be given ample time before the hearing to examine the charges, prepare a defense and gather evidence and witnesses. And, it goes without saying that the disciplining official should endeavor to maintain a neutral position until he has heard all of the facts. Mr. Stewart testified that in his judgment the presence of the “newspaper” was not “in the best interests of the school” under any circumstances. He also said that he resolved to expel the students who were responsible as soon as possible. In the face of such a predetermination, it appears that Stewart saw no real need to afford the students and their parents a chance to present a defense. Mike Fischer’s mother was informed over the phone that Mike was being expelled before Mike himself was ever advised that any disciplinary action would be taken. This was the first notice from the school to either Mr. or Mrs. Fischer that Mike was in trouble. Mrs. Sullivan was asked to come to Mr. Stewart’s office for a conference and at that' time she was advised that Dan was to be expelled. The purpose of the conference appears to have been only to inform Mrs. Sullivan of the punishment. Both boys were called in for a conference with the principal and assistant principal on the Friday before their expulsion. However,, neither was advised that disciplinary action would be taken nor was it made clear exactly why the “newspaper” violated “school regulations.” The suspension of these students provides a practical illustration of the unfairness so often accompanying the imposition of sanctions without adherence to reasonable standards of procedural due process. If Stewart had inquired into the boys’ motives and reasons for publishing a critical newspaper then perhaps he would not have acted so hastily. But for some reason the lines of communication were closed. This court, however, considers it the duty of school officials to create and maintain these lines through reasonable and fair procedures whenever severe disciplinary action is considered appropriate. In light of this court’s conclusions that defendants have deprived plaintiffs of their rights under the first amendment and have denied plaintiffs due process of law, plaintiffs are entitled to judgment that they were wrongfully expelled from Sharpstown High School. V. Finally, plaintiffs allege that certain regulations of the Houston Independent School District are unconstitutional under the Supreme Court’s “void-for-vagueness” doctrine. This prayer is presented as a class action on behalf of all secondary students of the Houston Independent School District. Plaintiffs seek declaratory relief and injunctive enforcement of their judgment. The Supreme Court’s “void-for-vagueness” doctrine has developed two distinct concepts. A statute is scrutinized first to determine if it is “over-broad”; could a reasonable application of its sanctions include conduct protected by the Constitution? See Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1941). See generally, Amsterdam, The Void for Vagueness Doctrine, 109 Pa.L.Rev. 67 (1960). A statute must also satisfy the “vagueness” standard of Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926): [A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process * * *. See Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). In their General Order on Student Discipline, 45 F.R.D. 133, 146-47 (W.D. Mo.1968), the judges of the Western District of Missouri adopted the following view on this issue: Outstanding educational authorities in the field of higher education believe, on the basis of experience, that detailed codes of prohibited student conduct are provocative and should not be employed in higher education. For this reason, general affirmative statements of what is expected of a student may in some areas be preferable in higher education. Such affirmative standards may be employed, and discipline of students based thereon. The legal doctrine that a prohibitory statute is void if it is overly broad or unconstitutionally broad does not, in the absence of exceptional circumstances, apply to standards of student conduct. The validity of the form of standards of student conduct, relevant to the lawful missions of higher education, ordinarily should be determined by recognized educational standards. However, in the case of Soglin v. Kauffman, 295 F.Supp. 978, 990 (W.D. Wis.1968) the court expressly rejected this view: “I cannot agree that university students should be deprived of these significant constitutional protections on so slender a showing.” The court concluded that: The constitutional doctrines of vagueness and overbreadth are applicable, in some measure, to the standard or standards to be applied by the university in disciplining its students, and that a regime in which the term “misconduct” serves as the sole standard violates the due process clause of the Fourteenth Amendment by reason of its vagueness, or, in the alternative, violates the First Amendment as embodied in the Fourteenth by reason of its vagueness and overbreadth. Id. at 991. This court is persuaded by the Soglin decision: And in this court’s judgment, these fundamental concepts of constitutional law must be applied “in some measure” even to high schools. The “measure” should reach only to rules the violation of which could result in expulsion or suspension for a substantial period of time. When faced with such drastic consequences, a high school student has no less a right to a clear, specific normative statement which does not infringe on free expression than does a university student or possibly even the accused in a criminal case. If the punishment could be this severe, there is no question but that a high school student as well as a university student might well suffer more injury than one convicted of a criminal offense. School rules probably do not need to be as narrow as criminal statutes but if school officials contemplate severe punishment they must do so on the basis of a rule which is drawn so as to reasonably inform the student what specific conduct is prescribed. Basie notions of justice and fair play require that no person shall be made to suffer for a breach unless standards of behavior have first been announced, for who is to decide what has been breached ? It is also clear that severe punishment may not be based on a rule which could reasonably be construed to embrace conduct protected by the first amendment. In Tinker the Court stated: Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom. 393 U.S. at 513, 89 S.Ct. at 740. At the conclusion of the evidentiary hearing in this case the parties entered the following stipulation: The only written rule or regulation of the Houston Independent School District concerning the private publication and distribution of written material by students in secondary schools newspapers which are not published in the name of the school and which do not purport to be published under the auspices of any school is as follows: The school principal may make such rules and regulations that may be necessary in the administration of the school and in promoting its best interests. He may enforce obedience to any reasonable and lawful command. It was further stipulated by the parties that Mr. Stewart had not made or announced any rule concerning the private publication or distribution of newspapers at Sharpstown Junior/Senior High School before the facts in question arose. Lastly, the following was stipulated: [T]he rule * * * [quoted above] is construed by responsible officials of the Houston Independent School District to prohibit the type of publication and distribution engaged in by Michael Fischer and Dan Sullivan in February and March of 1969. Since Mr. Stewart had not announced any rules regarding the private publication and distribution of newspapers and since he testified that he based his disciplinary action upon the rule quoted above, it must be assumed that this was the only standard available to students by which they could guide their conduct. The rule is, therefore, a proper subject for evaluation as to its vagueness and overbreadth. Little can be said of a standard so grossly overbroad as “in the best interests of the school.” Soglin v. Kauffman, 295 F.Supp. 978, 991 (W.D.Wis. 1968). It cannot be contended that it supplies objective standards by which a student may measure his behavior or by which an administrator may make a specific ruling in evaluation of behavior. Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965). It patently “sweeps within its broad scope activities that are constitutionally protected free speech and assembly.” Cox v. Louisiana, 379 U.S. 536, 552, 85 S.Ct. 453, 463, 13 L.Ed.2d 471 (1965). This is not meant in criticism of defendants. Generalities such as this one have been accepted for years as the proper sort of standard for our “unique educational environment.” However, Tinker has tolled the beginnings of change. As Judge James Doyle wrote in Soglin v. Kauffman, 295 F.Supp. 978, 988 (W.D.Wisc.1968): I take notice that in the present day, expulsion from an institution of higher learning, or suspension for a period of time substantial enough to prevent one from obtaining academic credit for a particular term, may well be, and often is in fact, a more severe sanction than a monetary fine or a relatively brief confinement imposed by a court in a criminal proceeding. The world is much with the modern state university. Some find this regrettable, mourning the passing of what is said to have been the old order. I do not share this view. The high school too is changing and generalities can no longer serve as standards of behavior when the right to obtain an education hangs in the balance. This regulation is unconstitutional for both “vagueness” and “over-breadth” and plaintiffs are entitled to a declaratory judgment to that effect. See generally the article by Professor Charles Alan Wright entitled The Constitution On the Campus, 22 Vand.L.Rev. 1027 (1969). Having concluded that defendants’ regulation is overbroad, it falls upon the court to determine what equitable relief is proper protection for plaintiffs and their class. The determination of overbreadth coupled with the threat of further improper enforcement in the future clearly tends to “chill” the exercise of first amendment freedoms by students in Houston schools. Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L.Ed.2d 22 (1965); NAACP v. Button, 371 U.S. 415, 83 S. Ct. 328, 9 L.Ed.2d 405 (1963). Such further improper enforcement will result in immediate and irreparable injury to plaintiffs’ class, and they will be without an adequate remedy at law. The class is entitled to permanent injunctive relief preventing the use of the void regulation by defendants in the future. In this court’s judgment, further equitable relief is required by the facts of this case so as to provide adequate protection for plaintiffs’ class. A permanent injunction will issue prohibiting the defendants from imposing serious disciplinary sanctions, in the absence of precise and narrowly drawn regulations, upon students who write, print, distribute or otherwise engage in the publication of newspapers either on or off of school premises during either school hours or non-school hours unless such activities materially and substantially disrupt the normal operations of the school. 42 U.S.C.A. § 1983; 28 U. S.C.A. § 1343(3). Defendants will also be permanently enjoined from expelling or suspending for a substantial period of time secondary school students in the Houston school district who are guilty of any misconduct without compliance with minimal standards of procedural due process: (1) formal written notice of the charges and of the evidence against him must be provided to the student and his parents or guardian, (2) formal hearing affording both sides ample opportunity to present their cases by way of witnesses or other evidence, and (3) imposition of sanctions only on the basis of substantial evidence. In 1943, Mr. Justice Jackson provided the principles which sustain this Court’s decision today: 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. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 637, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943). Counsel for plaintiffs will submit a proposed judgment and injunction immediately. It will be submitted to counsel for defendants for approval as to form. APPENDIX A The Christmas holidays have just passed us by and, for most people, the expression can be taken literally. As in one of the current tunes, it was the time of the season for loving. During Christmas most people put on their masks of peace and good will toward men, and after struggling find they can almost be tolerant of one another. The problem is that too many restrict their efforts to a minimum. They find that they can appease their puny minds by talking about equality, justice, tolerance, and love of fellow men. If they would make a sincere effort to practice the ideology of the democracy that they supposedly hold so dear they might find that refreshing and productive relationships are possible. People are able to meet on common ground and establish a productive rapport providing that all parties make a sincere effort. They can overcome their differences and search for solutions to common problems and means to reach common ends. It is well known that the relationships between school administrators, faculty members, and students have been more