Monday, March 21, 2011


419 U.S. 565
January 22, 1975, Decided

MR. JUSTICE WHITE delivered the opinion of the Court.
This appeal by various administrators of the Columbus, Ohio, Public School System (CPSS) challenges the judgment of a three-judge federal court, declaring that appellees -- various high school students in the CPSS -- were denied due process of law contrary to the command of the Fourteenth Amendment in that they were temporarily suspended from their high schools without a hearing either prior to suspension or within a reasonable time thereafter, and enjoining the administrators to remove all references to such suspensions from the students' records.
Ohio law provides for free education to all children between the ages of six and 21. Section 3313.66 of the Code empowers the principal of an Ohio public school to suspend a pupil for misconduct for up to 10 days or to expel him. In either case, he must notify the student's parents within 24 hours and state the reasons for his action. A pupil who is expelled, or his parents, may appeal the decision to the Board of Education and in connection therewith shall be permitted to be heard at the board meeting. The Board may reinstate the pupil following the hearing. No similar procedure is provided in § 3313.66 or any other provision of state law for a suspended student. Aside from a regulation tracking the statute, at the time of the imposition of the suspensions in this case the CPSS itself had not issued any written procedure applicable to suspensions. Nor, so far as the record reflects, had any of the individual high schools involved in this case.  Each, however, had formally or informally described the conduct for which suspension could be imposed.
The nine named appellees, each of whom alleged that he or she had been suspended from public high school in Columbus for up to 10 days without a hearing pursuant to § 3313.66, filed an action under 42 U. S. C. § 1983 against the Columbus Board of Education and various administrators of the CPSS. The complaint sought a declaration that § 3313.66 was unconstitutional in that it permitted public school administrators to deprive plaintiffs of their rights to an education without a hearing of any kind, in violation of the procedural due process component of the Fourteenth Amendment. It also sought to enjoin the public school officials from issuing future suspensions pursuant to § 3313.66 and to require them to remove references to the past suspensions from the records of the students in question.
The proof below established that the suspensions arose out of a period of widespread student unrest in the CPSS during February and March 1971. Six of the named plaintiffs, Rudolph Sutton, Tyrone Washington, Susan Cooper, Deborah Fox, Clarence Byars, and Bruce Harris, were students at the Marion-Franklin High School and were each suspended for 10 days  on account  of disruptive or disobedient conduct committed in the presence of the school administrator who ordered the suspension. One of these, Tyrone Washington, was among a group of students demonstrating in the school auditorium while a class was being conducted there. He was ordered by the school principal to leave, refused to do so, and was suspended. Rudolph Sutton, in the presence of the principal, physically attacked a police officer who was attempting to remove Tyrone Washington from the auditorium. He was immediately suspended. The other four Marion-Franklin students were suspended for similar conduct. None was given a hearing to determine the operative facts underlying the suspension, but each, together with his or her parents, was offered the opportunity to attend a conference, subsequent to the effective date of the suspension, to discuss the student's future.
Two named plaintiffs, Dwight Lopez and Betty Crome, were students at the Central High School and McGuffey Junior High School, respectively. The former was suspended in connection with a disturbance in the lunchroom which involved some physical damage to school property.  Lopez testified that at least 75 other students were suspended from his school on the same day. He also testified below that he was not a party to the destructive conduct but was instead an innocent bystander. Because no one from the school testified with regard to this incident, there is no evidence in the record indicating the official basis for concluding otherwise. Lopez never had a hearing.
Betty Crome was present at a demonstration at a high school other than the one she was attending. There she was arrested together with others, taken to the police station, and released without being formally charged. Before she went to school on the following day, she was notified that she had been suspended for a 10-day period. Because no one from the school testified with respect to this incident, the record does not disclose how the McGuffey Junior High School principal went about making the decision to suspend Crome, nor does it disclose on what information the decision was based. It is clear from the record that no hearing was ever held.
At the outset, appellants contend that because there is no constitutional right to an education at public expense, the Due Process Clause does not protect against expulsions from the public school system. This position misconceives the nature of the issue and is refuted by prior decisions. The Fourteenth Amendment forbids the State to deprive any person of life, liberty, or property without due process of law. Protected interests in property are normally "not created by the Constitution. Rather, they are created and their dimensions are defined" by an independent source such as state statutes or rules entitling the citizen to certain benefits. Board of Regents v. Roth, 408 U.S. 564 (1972). Accordingly, a state employee who under state law, or rules promulgated by state officials, has a legitimate claim of entitlement to continued employment absent sufficient cause for discharge may demand the procedural protections of due process.  So may welfare recipients who have statutory rights to welfare as long as they maintain the specified qualifications. Goldberg v. Kelly, 397 U.S. 254 (1970). Morrissey v. Brewer, 408 U.S. 471 (1972), applied the limitations of the Due Process Clause to governmental decisions to revoke parole, although a parolee has no constitutional right to that status.  Here, on the basis of state law, appellees plainly had legitimate claims of entitlement to a public education. Ohio Rev. Code Ann. §§ 3313.48 and 3313.64 direct local authorities to provide a free education to all residents between five and 21 years of age, and a compulsory-attendance law requires attendance for a school year of not less than 32 weeks.  It is true that § 3313.66 of the Code permits school principals to suspend students for up to 10 days; but suspensions may not be imposed without any grounds whatsoever. All of the schools had their own rules specifying the grounds for expulsion or suspension. Having chosen to extend the right to an education to people of appellees' class generally, Ohio may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred.  Although Ohio may not be constitutionally obligated to establish and maintain a public school system, it has nevertheless done so and has required its children to attend. Those young people do not "shed their constitutional rights" at the schoolhouse door. . "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."  The authority possessed by the State to prescribe and enforce standards of conduct in its schools although concededly very broad, must be exercised consistently with constitutional safeguards.
Among other things, the State is constrained to recognize a student's legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause. The Due Process Clause also forbids arbitrary deprivations of liberty. "Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him," the minimal requirements of the Clause must be satisfied. School authorities here suspended appellees from school for periods of up to 10 days  based on charges of misconduct. If sustained and recorded, those charges could seriously damage the students' standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment. It is apparent that the claimed right of the State to determine unilaterally and without process whether that misconduct has occurred immediately collides with the requirements of the Constitution.
Appellants proceed to argue that even if there is a right to a public education protected by the Due Process Clause generally, the Clause comes into play only when the State subjects a student to a "severe detriment or grievous loss." The loss of 10 days, it is said, is neither severe nor grievous and the Due Process Clause is therefore of no relevance. Appellants' argument is again refuted by our prior decisions; for in determining "whether due process requirements apply in the first place, we must look not to the 'weight' but to the nature of the interest at stake." Appellees were excluded from school only temporarily, it is true, but the length and consequent severity of a deprivation, while another factor to weigh in determining the appropriate form of hearing, "is not decisive of the basic right" to a hearing of some kind.  A 10-day suspension from school is not de minimis in our view and may not be imposed in complete disregard of the Due Process Clause. A short suspension is, of course, a far milder deprivation than expulsion. But, "education is perhaps the most important function of state and local governments," and the total exclusion from the educational process for more than a trivial period, and certainly if the suspension is for 10 days, is a serious event in the life of the suspended child. Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary.
"Once it is determined that due process applies, the question remains what process is due."  We turn to that question, fully realizing as our cases regularly do that the interpretation and application of the Due Process Clause are intensely practical matters and that "[the] very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation."  We are also mindful of our own admonition: "Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. . . . By and large, public education in our Nation is committed to the control of state and local authorities."  "The fundamental requisite of due process of law is the opportunity to be heard," a right that "has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to . . . contest."  At the very minimum, therefore, students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing. "Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified."  It also appears from our cases that the timing and content of the notice and the nature of the hearing will depend on appropriate accommodation of the competing interests involved.  The student's interest is to avoid unfair or mistaken exclusion from the educational process, with all of its unfortunate consequences. The Due Process Clause will not shield him from suspensions properly imposed, but it disserves both his interest and the interest of the State if his suspension is in fact unwarranted. The concern would be mostly academic if the disciplinary process were a totally accurate, unerring process, never mistaken and never unfair. Unfortunately, that is not the case, and no one suggests that it is. Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process. The difficulty is that our schools are vast and complex. Some modicum of discipline and order is essential if the educational function is to be performed. Events calling for discipline are frequent occurrences and sometimes require immediate, effective action. Suspension is considered not only to be a necessary tool to maintain order but a valuable educational device. The prospect of imposing elaborate hearing requirements in every suspension case is viewed with great concern, and many school authorities may well prefer the untrammeled power to act unilaterally, unhampered by rules about notice and hearing. But it would be a strange disciplinary system in an educational institution if no communication was sought by the disciplinarian with the student in an effort to inform him of his dereliction and to let him tell his side of the story in order to make sure that an injustice is not done. "[Fairness] can rarely be obtained by secret, one-sided determination of facts decisive of rights. . . ." "Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it."
We do not believe that school authorities must be totally free from notice and hearing requirements if their schools are to operate with acceptable efficiency. Students facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. The Clause requires at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school.
There need be no delay between the time "notice" is given and the time of the hearing. In the great majority of cases the disciplinarian may informally discuss the alleged misconduct with the student minutes after it has occurred. We hold only that, in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is accused of doing and what the basis of the accusation is.  Since the hearing may occur almost immediately following the misconduct, it follows that as a general rule notice and hearing should precede removal of the student from school. We agree with the District Court, however, that there are recurring situations in which prior notice and hearing cannot be insisted upon. Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school. In such cases, the necessary notice and rudimentary hearing should follow as soon as practicable, as the District Court indicated.
In holding as we do, we do not believe that we have imposed procedures on school disciplinarians which are inappropriate in a classroom setting. Instead we have imposed requirements which are, if anything, less than a fair-minded school principal would impose upon himself in order to avoid unfair suspensions.
We stop short of construing the Due Process Clause to require, countrywide, that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident. Brief disciplinary suspensions are almost countless. To impose in each such case even truncated trial-type procedures might well overwhelm administrative facilities in many places and, by diverting resources, cost more than it would save in educational effectiveness. Moreover, further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the teaching process.
On the other hand, requiring effective notice and informal hearing permitting the student to give his version of the events will provide a meaningful hedge against erroneous action. At least the disciplinarian will be alerted to the existence of disputes about facts and arguments about cause and effect. He may then determine himself to summon the accuser, permit cross-examination, and allow the student to present his own witnesses. In more difficult cases, he may permit counsel. In any event, his discretion will be more informed and we think the risk of error substantially reduced.
We should also make it clear that we have addressed ourselves solely to the short suspension, not exceeding 10 days. Longer suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures. Nor do we put aside the possibility that in unusual situations, although involving only a short suspension, something more than the rudimentary procedures will be required.
The Court today invalidates an Ohio statute that permits student suspensions from school without a hearing "for not more than ten days." The decision unnecessarily opens avenues for judicial intervention in the operation of our public schools that may affect adversely the quality of education. The Court holds for the first time that the federal courts, rather than educational officials and state legislatures, have the authority to determine the rules applicable to routine classroom discipline of children and teenagers in the public schools. It justifies this unprecedented intrusion into the process of elementary and secondary education by identifying a new constitutional right: the right of a student not to be suspended for as much as a single day without notice and a due process hearing either before or promptly following the suspension.
The Court's decision rests on the premise that, under Ohio law, education is a property interest protected by the Fourteenth Amendment's Due Process Clause and therefore that any suspension requires notice and a hearing.  In my view, a student's interest in education is not infringed by a suspension within the limited period prescribed by Ohio law. Moreover, to the extent that there may be some arguable infringement, it is too speculative, transitory, and insubstantial to justify imposition of a constitutional rule....


U.S. Supreme Court

TINKER v. DES MOINES SCHOOL DIST., 393 U.S. 503 (1969)

393 U.S. 503
No. 21.
Argued November 12, 1968.
Decided February 24, 1969.
Petitioners, three public school pupils in Des Moines, Iowa, were suspended from school for wearing black armbands to protest the Government's policy in Vietnam. They sought nominal damages and an injunction against a regulation that the respondents had promulgated banning the wearing of armbands. The District Court dismissed the complaint on the ground that the regulation was within the Board's power, despite the absence of any finding of substantial interference with the conduct of school activities. The Court of Appeals, sitting en banc, affirmed by an equally divided court. Held:
1. In wearing armbands, the petitioners were quiet and passive. They were not disruptive and did not impinge upon the rights of others. In these circumstances, their conduct was within the protection of the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth. Pp. 505-506.
2. First Amendment rights are available to teachers and students, subject to application in light of the special characteristics of the school environment. Pp. 506-507.
3. A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments. Pp. 507-514.
383 F.2d 988, reversed and remanded.
Dan L. Johnston argued the cause for petitioners. With him on the brief were Melvin L. Wulf and David N. Ellenhorn.
Allan A. Herrick argued the cause for respondents. With him on the brief were Herschel G. Langdon and David W. Belin.
Charles Morgan, Jr., filed a brief for the United States National Student Association, as amicus curiae, urging reversal. [393 U.S. 503, 504]  
MR. JUSTICE FORTAS delivered the opinion of the Court.
Petitioner John F. Tinker, 15 years old, and petitioner Christopher Eckhardt, 16 years old, attended high schools in Des Moines, Iowa. Petitioner Mary Beth Tinker, John's sister, was a 13-year-old student in junior high school.
In December 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt home. The group determined to publicize their objections to the hostilities in Vietnam and their support for a truce by wearing black armbands during the holiday season and by fasting on December 16 and New Year's Eve. Petitioners and their parents had previously engaged in similar activities, and they decided to participate in the program.
The principals of the Des Moines schools became aware of the plan to wear armbands. On December 14, 1965, they met and adopted a policy that any student wearing an armband to school would be asked to remove it, and if he refused he would be suspended until he returned without the armband. Petitioners were aware of the regulation that the school authorities adopted.
On December 16, Mary Beth and Christopher wore black armbands to their schools. John Tinker wore his armband the next day. They were all sent home and suspended from school until they would come back without their armbands. They did not return to school until after the planned period for wearing armbands had expired - that is, until after New Year's Day.
This complaint was filed in the United States District Court by petitioners, through their fathers, under 1983 of Title 42 of the United States Code. It prayed for an injunction restraining the respondent school officials and the respondent members of the board of directors of the school district from disciplining the petitioners, and it sought nominal damages. After an evidentiary hearing the District Court dismissed the complaint. It upheld [393 U.S. 503, 505]   the constitutionality of the school authorities' action on the ground that it was reasonable in order to prevent disturbance of school discipline. 258 F. Supp. 971 (1966). The court referred to but expressly declined to follow the Fifth Circuit's holding in a similar case that the wearing of symbols like the armbands cannot be prohibited unless it "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school." Burnside v. Byars, 363 F.2d 744, 749 (1966). 1  
On appeal, the Court of Appeals for the Eighth Circuit considered the case en banc. The court was equally divided, and the District Court's decision was accordingly affirmed, without opinion. 383 F.2d 988 (1967). We granted certiorari. 390 U.S. 942 (1968).


The District Court recognized that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment. See West Virginia v. Barnette, 319 U.S. 624 (1943); Stromberg v. California, 283 U.S. 359 (1931). Cf. Thornhill v. Alabama, 310 U.S. 88 (1940); Edwards v. South Carolina, 372 U.S. 229 (1963); Brown v. Louisiana, 383 U.S. 131 (1966). As we shall discuss, the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to "pure speech" [393 U.S. 503, 506]   which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. Cf. Cox v. Louisiana, 379 U.S. 536, 555 (1965); Adderley v. Florida, 385 U.S. 39 (1966).
First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years. In Meyer v. Nebraska, 262 U.S. 390 (1923), and Bartels v. Iowa, 262 U.S. 404 (1923), this Court, in opinions by Mr. Justice McReynolds, held that the Due Process Clause of the Fourteenth Amendment prevents States from forbidding the teaching of a foreign language to young students. Statutes to this effect, the Court held, unconstitutionally interfere with the liberty of teacher, student, and parent. 2 See also Pierce v. Society of Sisters, [393 U.S. 503, 507]   268 U.S. 510 (1925); West Virginia v. Barnette, 319 U.S. 624 (1943); McCollum v. Board of Education, 333 U.S. 203 (1948); Wieman v. Updegraff, 344 U.S. 183, 195 (1952) (concurring opinion); Sweezy v. New Hampshire, 354 U.S. 234 (1957); Shelton v. Tucker, 364 U.S. 479, 487 (1960); Engel v. Vitale, 370 U.S. 421 (1962); Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967); Epperson v. Arkansas, ante, p. 97 (1968).
In West Virginia v. Barnette, supra, this Court held that under the First Amendment, the student in public school may not be compelled to salute the flag. Speaking through Mr. Justice Jackson, the Court said:
"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." 319 U.S., at 637 .
On the other hand, the Court has repeatedly 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. See Epperson v. Arkansas, supra, at 104; Meyer v. Nebraska, supra, at 402. Our problem lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities.


The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, [393 U.S. 503, 508]   to hair style, or deportment. Cf. Ferrell v. Dallas Independent School District, 392 F.2d 697 (1968); Pugsley v. Sellmeyer, 158 Ark. 247, 250 S. W. 538 (1923). It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment rights akin to "pure speech."
The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners' interference, actual or nascent, with the schools' work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.
Only a few of the 18,000 students in the school system wore the black armbands. Only five students were suspended for wearing them. There is no indication that the work of the schools or any class was disrupted. Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises.
The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1 (1949); and our history says that it is this sort of hazardous freedom - this kind of openness - that is [393 U.S. 503, 509]   the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.
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. Certainly where there is no finding and no showing that engaging in the forbidden conduct would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," the prohibition cannot be sustained. Burnside v. Byars, supra, at 749.
In the present case, the District Court made no such finding, and our independent examination of the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students. Even an official memorandum prepared after the suspension that listed the reasons for the ban on wearing the armbands made no reference to the anticipation of such disruption. 3   [393 U.S. 503, 510]  
On the contrary, the action of the school authorities appears to have been based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this Nation's part in the conflagration in Vietnam. 4 It is revealing, in this respect, that the meeting at which the school principals decided to issue the contested regulation was called in response to a student's statement to the journalism teacher in one of the schools that he wanted to write an article on Vietnam and have it published in the school paper. (The student was dissuaded. 5 )
It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a particular symbol - black armbands worn to exhibit opposition to this Nation's involvement [393 U.S. 503, 511]   in Vietnam - was singled out for prohibition. 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.
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 "expressions of feelings with which they do not wish to contend." Burnside v. Byars, supra, at 749.
In Meyer v. Nebraska, supra, at 402, Mr. Justice McReynolds expressed this Nation's repudiation of the principle that a State might so conduct its schools as to "foster a homogeneous people." He said:
"In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a [393 U.S. 503, 512]   State without doing violence to both letter and spirit of the Constitution."
This principle has been repeated by this Court on numerous occasions during the intervening years. In Keyishian v. Board of Regents, 385 U.S. 589, 603 , MR. JUSTICE BRENNAN, speaking for the Court, said:
"`The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.' Shelton v. Tucker, [ 364 U.S. 479 ,] at 487. The classroom is peculiarly the `marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth `out of a multitude of tongues, [rather] than through any kind of authoritative selection.'"
The principle of these cases is not confined to the supervised and ordained discussion which takes place in the classroom. 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. 6 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 [393 U.S. 503, 513]   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 the requirements of appropriate discipline in the operation of the school" and without colliding with the rights of others. Burnside v. Byars, supra, 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 guarantee of freedom of speech. Cf. Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (C. A. 5th Cir. 1966).
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.
If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, or the expression by any student of opposition to it anywhere on school property except as part of a prescribed classroom exercise, it would be obvious that the regulation would violate the constitutional rights of students, at least if it could not be justified by a showing that the students' activities would materially and substantially disrupt the work and discipline of the school. Cf. Hammond [393 U.S. 503, 514]   v. South Carolina State College, 272 F. Supp. 947 (D.C. S. C. 1967) (orderly protest meeting on state college campus); Dickey v. Alabama State Board of Education, 273 F. Supp. 613 (D.C. M. D. Ala. 1967) (expulsion of student editor of college newspaper). In the circumstances of the present case, the prohibition of the silent, passive "witness of the armbands," as one of the children called it, is no less offensive to the Constitution's guarantees.
As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression.
We express no opinion as to the form of relief which should be granted, this being a matter for the lower courts to determine. We reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.


[ Footnote 1 ] In Burnside, the Fifth Circuit ordered that high school authorities be enjoined from enforcing a regulation forbidding students to wear "freedom buttons." It is instructive that in Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (1966), the same panel on the same day reached the opposite result on different facts. It declined to enjoin enforcement of such a regulation in another high school where the students wearing freedom buttons harassed students who did not wear them and created much disturbance.
[ Footnote 2 ] Hamilton v. Regents of Univ. of Cal., 293 U.S. 245 (1934), is sometimes cited for the broad proposition that the State may attach conditions to attendance at a state university that require individuals to violate their religious convictions. The case involved dismissal of members of a religious denomination from a land grant college for refusal to participate in military training. Narrowly viewed, the case turns upon the Court's conclusion that merely requiring a student to participate in school training in military "science" could not conflict with his constitutionally protected freedom of conscience. The decision cannot be taken as establishing that the State may impose and enforce any conditions that it chooses upon attendance at public institutions of learning, however violative they may be of fundamental constitutional guarantees. See, e. g., West Virginia v. Barnette, 319 U.S. 624 (1943); Dixon v. Alabama State Board of Education, 294 F.2d 150 (C. A. 5th Cir. 1961); Knight v. State Board of Education, 200 F. Supp. 174 (D.C. M. D. Tenn. 1961); Dickey v. Alabama State Board of Education, 273 F. Supp. 613 (D.C. M. D. Ala. 1967). See also Note, Unconstitutional Conditions, 73 Harv. L. Rev. 1595 (1960); Note, Academic Freedom, 81 Harv. L. Rev. 1045 (1968).
[ Footnote 3 ] The only suggestions of fear of disorder in the report are these:
"A former student of one of our high schools was killed in Viet Nam. Some of his friends are still in school and it was felt that if any kind of a demonstration existed, it might evolve into something which would be difficult to control."
"Students at one of the high schools were heard to say they would wear arm bands of other colors if the black bands prevailed."
Moreover, the testimony of school authorities at trial indicates that it was not fear of disruption that motivated the regulation prohibiting the armbands; the regulation was directed against "the principle of the demonstration" itself. School authorities simply felt that "the schools are no place for demonstrations," and if the students "didn't like the way our elected officials were handling things, it should be handled with the ballot box and not in the halls of our public schools."
[ Footnote 4 ] The District Court found that the school authorities, in prohibiting black armbands, were influenced by the fact that "[t]he Viet Nam war and the involvement of the United States therein has been the subject of a major controversy for some time. When the arm band regulation involved herein was promulgated, debate over the Viet Nam war had become vehement in many localities. A protest march against the war had been recently held in Washington, D.C. A wave of draft card burning incidents protesting the war had swept the country. At that time two highly publicized draft card burning cases were pending in this Court. Both individuals supporting the war and those opposing it were quite vocal in expressing their views." 258 F. Supp., at 972-973.
[ Footnote 5 ] After the principals' meeting, the director of secondary education and the principal of the high school informed the student that the principals were opposed to publication of his article. They reported that "we felt that it was a very friendly conversation, although we did not feel that we had convinced the student that our decision was a just one."
[ Footnote 6 ] In Hammond v. South Carolina State College, 272 F. Supp. 947 (D.C. S. C. 1967), District Judge Hemphill had before him a case involving a meeting on campus of 300 students to express their views on school practices. He pointed out that a school is not like a hospital or a jail enclosure. Cf. Cox v. Louisiana, 379 U.S. 536 (1965); Adderley v. Florida, 385 U.S. 39 (1966). It is a public place, and its dedication to specific uses does not imply that the constitutional rights of persons entitled to be there are to be gauged as if the premises were purely private property. Cf. Edwards v. South Carolina, 372 U.S. 229 (1963); Brown v. Louisiana, 383 U.S. 131 (1966).
MR. JUSTICE STEWART, concurring.
Although I agree with much of what is said in the Court's opinion, and with its judgment in this case, I [393 U.S. 503, 515]   cannot share the Court's uncritical assumption that, school discipline aside, the First Amendment rights of children are co-extensive with those of adults. Indeed, I had thought the Court decided otherwise just last Term in Ginsberg v. New York, 390 U.S. 629 . I continue to hold the view I expressed in that case: "[A] State may permissibly determine that, at least in some precisely delineated areas, a child - like someone in a captive audience - is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees." Id., at 649-650 (concurring in result). Cf. Prince v. Massachusetts, 321 U.S. 158 .
MR. JUSTICE WHITE, concurring.
While I join the Court's opinion, I deem it appropriate to note, first, that the Court continues to recognize a distinction between communicating by words and communicating by acts or conduct which sufficiently impinges on some valid state interest; and, second, that I do not subscribe to everything the Court of Appeals said about free speech in its opinion in Burnside v. Byars, 363 F.2d 744, 748 (C. A. 5th Cir. 1966), a case relied upon by the Court in the matter now before us.
MR. JUSTICE BLACK, dissenting.
The Court's holding in this case ushers in what I deem to be an entirely new era in which the power to control pupils by the elected "officials of state supported public schools . . ." in the United States is in ultimate effect transferred to the Supreme Court. 1 The Court brought [393 U.S. 503, 516]   this particular case here on a petition for certiorari urging that the First and Fourteenth Amendments protect the right of school pupils to express their political views all the way "from kindergarten through high school." Here the constitutional right to "political expression" asserted was a right to wear black armbands during school hours and at classes in order to demonstrate to the other students that the petitioners were mourning because of the death of United States soldiers in Vietnam and to protest that war which they were against. Ordered to refrain from wearing the armbands in school by the elected school officials and the teachers vested with state authority to do so, apparently only seven out of the school system's 18,000 pupils deliberately refused to obey the order. One defying pupil was Paul Tinker, 8 years old, who was in the second grade; another, Hope Tinker, was 11 years old and in the fifth grade; a third member of the Tinker family was 13, in the eighth grade; and a fourth member of the same family was John Tinker, 15 years old, an 11th grade high school pupil. Their father, a Methodist minister without a church, is paid a salary by the American Friends Service Committee. Another student who defied the school order and insisted on wearing an armband in school was Christopher Eckhardt, an 11th grade pupil and a petitioner in this case. His mother is an official in the Women's International League for Peace and Freedom.
As I read the Court's opinion it relies upon the following grounds for holding unconstitutional the judgment of the Des Moines school officials and the two courts below. First, the Court concludes that the wearing of armbands is "symbolic speech" which is "akin to `pure speech'" and therefore protected by the First and Fourteenth Amendments. Secondly, the Court decides that the public schools are an appropriate place to exercise "symbolic speech" as long as normal school functions [393 U.S. 503, 517]   are not "unreasonably" disrupted. Finally, the Court arrogates to itself, rather than to the State's elected officials charged with running the schools, the decision as to which school disciplinary regulations are "reasonable."
Assuming that the Court is correct in holding that the conduct of wearing armbands for the purpose of conveying political ideas is protected by the First Amendment, cf., e. g., Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949), the crucial remaining questions are whether students and teachers may use the schools at their whim as a platform for the exercise of free speech - "symbolic" or "pure" - and whether the courts will allocate to themselves the function of deciding how the pupils' school day will be spent. While I have always believed that under the First and Fourteenth Amendments neither the State nor the Federal Government has any authority to regulate or censor the content of speech, I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases. This Court has already rejected such a notion. In Cox v. Louisiana, 379 U.S. 536, 554 (1965), for example, the Court clearly stated that the rights of free speech and assembly "do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time."
While the record does not show that any of these armband students shouted, used profane language, or were violent in any manner, detailed testimony by some of them shows their armbands caused comments, warnings by other students, the poking of fun at them, and a warning by an older football player that other, nonprotesting students had better let them alone. There is also evidence that a teacher of mathematics had his lesson period practically "wrecked" chiefly by disputes with Mary Beth Tinker, who wore her armband for her "demonstration." [393 U.S. 503, 518]   Even a casual reading of the record shows that this armband did divert students' minds from their regular lessons, and that talk, comments, etc., made John Tinker "self-conscious" in attending school with his armband. While the absence of obscene remarks or boisterous and loud disorder perhaps justifies the Court's statement that the few armband students did not actually "disrupt" the classwork, I think the record overwhelmingly shows that the armbands did exactly what the elected school officials and principals foresaw they would, that is, took the students' minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam war. And I repeat that if the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary. The next logical step, it appears to me, would be to hold unconstitutional laws that bar pupils under 21 or 18 from voting, or from being elected members of the boards of education. 2  
The United States District Court refused to hold that the state school order violated the First and Fourteenth Amendments. 258 F. Supp. 971. Holding that the protest was akin to speech, which is protected by the First [393 U.S. 503, 519]   and Fourteenth Amendments, that court held that the school order was "reasonable" and hence constitutional. There was at one time a line of cases holding "reasonableness" as the court saw it to be the test of a "due process" violation. Two cases upon which the Court today heavily relies for striking down this school order used this test of reasonableness, Meyer v. Nebraska, 262 U.S. 390 (1923), and Bartels v. Iowa, 262 U.S. 404 (1923). The opinions in both cases were written by Mr. Justice McReynolds; Mr. Justice Holmes, who opposed this reasonableness test, dissented from the holdings as did Mr. Justice Sutherland. This constitutional test of reasonableness prevailed in this Court for a season. It was this test that brought on President Franklin Roosevelt's well-known Court fight. His proposed legislation did not pass, but the fight left the "reasonableness" constitutional test dead on the battlefield, so much so that this Court in Ferguson v. Skrupa, 372 U.S. 726, 729 , 730, after a thorough review of the old cases, was able to conclude in 1963:
"There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy.
. . . . .
"The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases - that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely - has long since been discarded."
The Ferguson case totally repudiated the old reasonableness-due process test, the doctrine that judges have the power to hold laws unconstitutional upon the belief of judges that they "shock the conscience" or that they are [393 U.S. 503, 520]   "unreasonable," "arbitrary," "irrational," "contrary to fundamental `decency,'" or some other such flexible term without precise boundaries. I have many times expressed my opposition to that concept on the ground that it gives judges power to strike down any law they do not like. If the majority of the Court today, by agreeing to the opinion of my Brother FORTAS, is resurrecting that old reasonableness-due process test, I think the constitutional change should be plainly, unequivocally, and forthrightly stated for the benefit of the bench and bar. It will be a sad day for the country, I believe, when the present-day Court returns to the McReynolds due process concept. Other cases cited by the Court do not, as implied, follow the McReynolds reasonableness doctrine. West Virginia v. Barnette, 319 U.S. 624 , clearly rejecting the "reasonableness" test, held that the Fourteenth Amendment made the First applicable to the States, and that the two forbade a State to compel little schoolchildren to salute the United States flag when they had religious scruples against doing so. 3 Neither Thornhill v. Alabama, 310 U.S. 88 ; Stromberg v. California, 283 U.S. 359 ; Edwards [393 U.S. 503, 521]   v. South Carolina, 372 U.S. 229 ; nor Brown v. Louisiana, 383 U.S. 131 , related to schoolchildren at all, and none of these cases embraced Mr. Justice McReynolds' reasonableness test; and Thornhill, Edwards, and Brown relied on the vagueness of state statutes under scrutiny to hold them unconstitutional. Cox v. Louisiana, 379 U.S. 536, 555 , and Adderley v. Florida, 385 U.S. 39 , cited by the Court as a "compare," indicating, I suppose, that these two cases are no longer the law, were not rested to the slightest extent on the Meyer and Bartels "reasonableness-due process-McReynolds" constitutional test.
I deny, therefore, that it has been the "unmistakable holding of this Court for almost 50 years" that "students" and "teachers" take with them into the "schoolhouse gate" constitutional rights to "freedom of speech or expression." Even Meyer did not hold that. It makes no reference to "symbolic speech" at all; what it did was to strike down as "unreasonable" and therefore unconstitutional a Nebraska law barring the teaching of the German language before the children reached the eighth grade. One can well agree with Mr. Justice Holmes and Mr. Justice Sutherland, as I do, that such a law was no more unreasonable than it would be to bar the teaching of Latin and Greek to pupils who have not reached the eighth grade. In fact, I think the majority's reason for invalidating the Nebraska law was that it did not like it or in legal jargon that it "shocked the Court's conscience," "offended its sense of justice," or was "contrary to fundamental concepts of the English-speaking world," as the Court has sometimes said. See, e. g., Rochin v. California, 342 U.S. 165 , and Irvine v. California, 347 U.S. 128 . The truth is that a teacher of kindergarten, grammar school, or high school pupils no more carries into a school with him a complete right to freedom of speech and expression than an anti-Catholic or anti-Semite carries with him a complete freedom of [393 U.S. 503, 522]   speech and religion into a Catholic church or Jewish synagogue. Nor does a person carry with him into the United States Senate or House, or into the Supreme Court, or any other court, a complete constitutional right to go into those places contrary to their rules and speak his mind on any subject he pleases. It is a myth to say that any person has a constitutional right to say what he pleases, where he pleases, and when he pleases. Our Court has decided precisely the opposite. See, e. g., Cox v. Louisiana, 379 U.S. 536, 555 ; Adderley v. Florida, 385 U.S. 39 .
In my view, teachers in state-controlled public schools are hired to teach there. Although Mr. Justice McReynolds may have intimated to the contrary in Meyer v. Nebraska, supra, certainly a teacher is not paid to go into school and teach subjects the State does not hire him to teach as a part of its selected curriculum. Nor are public school students sent to the schools at public expense to broadcast political or any other views to educate and inform the public. The original idea of schools, which I do not believe is yet abandoned as worthless or out of date, was that children had not yet reached the point of experience and wisdom which enabled them to teach all of their elders. It may be that the Nation has outworn the old-fashioned slogan that "children are to be seen not heard," but one may, I hope, be permitted to harbor the thought that taxpayers send children to school on the premise that at their age they need to learn, not teach.
The true principles on this whole subject were in my judgment spoken by Mr. Justice McKenna for the Court in Waugh v. Mississippi University in 237 U.S. 589, 596 -597. The State had there passed a law barring students from peaceably assembling in Greek letter fraternities and providing that students who joined them could be expelled from school. This law would appear on the surface to run afoul of the First Amendment's [393 U.S. 503, 523]   freedom of assembly clause. The law was attacked as violative of due process and of the privileges and immunities clause and as a deprivation of property and of liberty, under the Fourteenth Amendment. It was argued that the fraternity made its members more moral, taught discipline, and inspired its members to study harder and to obey better the rules of discipline and order. This Court rejected all the "fervid" pleas of the fraternities' advocates and decided unanimously against these Fourteenth Amendment arguments. The Court in its next to the last paragraph made this statement which has complete relevance for us today:
"It is said that the fraternity to which complainant belongs is a moral and of itself a disciplinary force. This need not be denied. But whether such membership makes against discipline was for the State of Mississippi to determine. It is to be remembered that the University was established by the State and is under the control of the State, and the enactment of the statute may have been induced by the opinion that membership in the prohibited societies divided the attention of the students and distracted from that singleness of purpose which the State desired to exist in its public educational institutions. It is not for us to entertain conjectures in opposition to the views of the State and annul its regulations upon disputable considerations of their wisdom or necessity." (Emphasis supplied.)
It was on the foregoing argument that this Court sustained the power of Mississippi to curtail the First Amendment's right of peaceable assembly. And the same reasons are equally applicable to curtailing in the States' public schools the right to complete freedom of expression. Iowa's public schools, like Mississippi's university, are operated to give students an opportunity to learn, not to talk politics by actual speech, or by "symbolic" [393 U.S. 503, 524]   speech. And, as I have pointed out before, the record amply shows that public protest in the school classes against the Vietnam war "distracted from that singleness of purpose which the State [here Iowa] desired to exist in its public educational institutions." Here the Court should accord Iowa educational institutions the same right to determine for themselves to what extent free expression should be allowed in its schools as it accorded Mississippi with reference to freedom of assembly. But even if the record were silent as to protests against the Vietnam war distracting students from their assigned class work, members of this Court, like all other citizens, know, without being told, that the disputes over the wisdom of the Vietnam war have disrupted and divided this country as few other issues ever have. Of course students, like other people, cannot concentrate on lesser issues when black armbands are being ostentatiously displayed in their presence to call attention to the wounded and dead of the war, some of the wounded and the dead being their friends and neighbors. It was, of course, to distract the attention of other students that some students insisted up to the very point of their own suspension from school that they were determined to sit in school with their symbolic armbands.
Change has been said to be truly the law of life but sometimes the old and the tried and true are worth holding. The schools of this Nation have undoubtedly contributed to giving us tranquility and to making us a more law-abiding people. Uncontrolled and uncontrollable liberty is an enemy to domestic peace. We cannot close our eyes to the fact that some of the country's greatest problems are crimes committed by the youth, too many of school age. School discipline, like parental discipline, is an integral and important part of training our children to be good citizens - to be better citizens. Here a very small number of students have crisply and summarily [393 U.S. 503, 525]   refused to obey a school order designed to give pupils who want to learn the opportunity to do so. One does not need to be a prophet or the son of a prophet to know that after the Court's holding today some students in Iowa schools and indeed in all schools will be ready, able, and willing to defy their teachers on practically all orders. This is the more unfortunate for the schools since groups of students all over the land are already running loose, conducting break-ins, sit-ins, lie-ins, and smash-ins. Many of these student groups, as is all too familiar to all who read the newspapers and watch the television news programs, have already engaged in rioting, property seizures, and destruction. They have picketed schools to force students not to cross their picket lines and have too often violently attacked earnest but frightened students who wanted an education that the pickets did not want them to get. Students engaged in such activities are apparently confident that they know far more about how to operate public school systems than do their parents, teachers, and elected school officials. It is no answer to say that the particular students here have not yet reached such high points in their demands to attend classes in order to exercise their political pressures. Turned loose with lawsuits for damages and injunctions against their teachers as they are here, it is nothing but wishful thinking to imagine that young, immature students will not soon believe it is their right to control the schools rather than the right of the States that collect the taxes to hire the teachers for the benefit of the pupils. This case, therefore, wholly without constitutional reasons in my judgment, subjects all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students. I, for one, am not fully persuaded that school pupils are wise enough, even with this Court's expert help from Washington, to run the 23,390 public school [393 U.S. 503, 526]   systems 4 in our 50 States. I wish, therefore, wholly to disclaim any purpose on my part to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students. I dissent.
[ Footnote 1 ] The petition for certiorari here presented this single question:
"Whether the First and Fourteenth Amendments permit officials of state supported public schools to prohibit students from wearing symbols of political views within school premises where the symbols are not disruptive of school discipline or decorum."
[ Footnote 2 ] The following Associated Press article appeared in the Washington Evening Star, January 11, 1969, p. A-2, col. 1:
"BELLINGHAM, Mass. (AP) - Todd R. Hennessy, 16, has filed nominating papers to run for town park commissioner in the March election.
"`I can see nothing illegal in the youth's seeking the elective office,' said Lee Ambler, the town counsel. `But I can't overlook the possibility that if he is elected any legal contract entered into by the park commissioner would be void because he is a juvenile.'
"Todd is a junior in Mount St. Charles Academy, where he has a top scholastic record."
[ Footnote 3 ] In Cantwell v. Connecticut, 310 U.S. 296, 303 -304 (1940), this Court said:
"The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts, - freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society."
[ Footnote 4 ] Statistical Abstract of the United States (1968), Table No. 578, p. 406.
MR. JUSTICE HARLAN, dissenting.
I certainly agree that state public school authorities in the discharge of their responsibilities are not wholly exempt from the requirements of the Fourteenth Amendment respecting the freedoms of expression and association. At the same time I am reluctant to believe that there is any disagreement between the majority and myself on the proposition that school officials should be accorded the widest authority in maintaining discipline and good order in their institutions. To translate that proposition into a workable constitutional rule, I would, in cases like this, cast upon those complaining the burden of showing that a particular school measure was motivated by other than legitimate school concerns - for example, a desire to prohibit the expression of an unpopular point of view, while permitting expression of the dominant opinion.
Finding nothing in this record which impugns the good faith of respondents in promulgating the armband regulation, I would affirm the judgment below. [393 U.S. 503, 527]  


Pg 127
Setiap tahun, pelajar di sekolah awam menuntut agar pegawai-pegawai pendidikan memberi sebab kemungkinan (probable cause) dan waran sebelum membuat pemeriksaan. Dalam kes New Jersey v. T.L.O., US Supreme Court memastikan bahawa  pelajar di sekolah awam dilindungi oleh Fourth Amendment dan  sebab kemungkinan (probable cause) diperlukan sebelum pegawai sekolah membuat pemeriksaan.

New Jersey v. T.L.O.
Supreme Court of the US, 1985
469 US 325

Hakim White memberi pendapatnya di mahkamah

Di Amerika Syarikat, perlindungan yang diberikan kepada seorang individu didapati dalam Fourth Amendment Perlembagaan Negara. Isu pemeriksaan munasabah yang diwajibkan dalam Fourth Amendment memerlukan satu waran dan alasan yang sesuai

Pada Mac 7, 1980, guru di Piscataway High School di Middlesex County, NJ, mendapati dua orang pelajar merokok di tandas. Seorang daripadanya merupakan responden TLO, yang pada waktu itu berumur 14 tahun. Oleh sebab merokok dalam tandas merupakan pencabulan terhadap undang-undang sekolah, guru telah membawa kedua-dua pelajar tersebut ke bilik pengetua dan berjumpa dengan penolong pengetua, Theodore Choplick. Berdasarkan jawapan daripada soalan En. Choplick, mereka mengaku melanggar peraturan. Walau bagaimanapun, TLO menafikan bahawa dia merokok dalam tandas dan mendakwa dia tidak pernah merokok.

En. Choplick meminta TLO datang ke pejabatnya dan memaksa untuk melihat dompetnya. Apabila dompet dibuka, dia menjumpai satu kotak rokok dan menuduhnya berbohong. En. Choplick juga mendapati   bahawa kotak rokok itu mengandungi gulungan kertas. Berdasarkan pengalamannya, keadaan itu biasanya berkaitan dengan marijuana. Oleh itu, dia terus memeriksa dompet pelajar itu dan menjumpai sedikit marijuana, paip, beberapa beg plastik kosong,sejumlah wang yang banyak, senarai pelajar yang berhutang wang dan dua keping surat yang membabitkannya dalam kegiatan menjual dadah.

ms 128

Mr. Choplick menghubungi ibu TLO dan polis dengan menyertakan bukti urusniaga kepada polis. Ibu TLO membawa anaknya ke balai polis di mana TLO mengakui menjual marijuana di sekolah tinggi. Berdasarkan kepada pengakuan dan bahan bukti yang ada, pihak negeri telah membawa kes salah laku TLO ke mahkamah Juvenile dan Domestik Relations Court of Middlesex County. Berasaskan kepada pindaan 4, TLO menegaskan bahawa bahan bukti yang ditemui dalam dompetnya telah ditemui berdasarkan pengeledahan yang tidak sah. Walau bagaimanapun mahkamah tetap mempertahankan bahawa mengikut pindaan 4, pihak sekolah telah mengambil tindakan yang sewajarnya yang difikirkan munasabah bagi menjaga disiplin sekolah ataupun melaksanakan polisi sekolah.

            Berdasarkan piawai yang diberikan, mahkamah berpendapat siasatan yang dilakukan oleh Mr. Choplick adalah munasabah. Permulaan siasatan oleh Mr. Choplick yang mengesyaki TLO telah melanggar peraturan merokok dalam tandas. Siasatan  seterusnya telah mendedahkan terdapatnya bukti marijuana dalam simpanan TLO dan ini membolehkan Mr. Choplick menyoal siasat tentang perlakuan aktiviti penyalahgunaan dadah TLO. Dengan penafian terhadap defendan, pihak mahkamah pada 23 Mac 1981, mendapati TLO telah melanggar undang-undang dan pada 8 Januari 1982, TLO telah dikenakan hukuman pemerhatian selama setahun.

            Dalam rayuan mahkamah Juvenil, bahagian rayuan menyokong keputusan trial court’s bahawa tiada sebarang pelanggaran (tidak menyalahi) pindaan 4 tetapi mahkamah mengambil keputusan hendak melihat sama ada TLO dengan sengaja dan dalam sedar melepaskan haknya dalam pindaan 5 sebelum buat pengakuan. TLO merayu terhadap peraturan pindaan 4 dan mahkamah agung New Jersey menolak keputusan mahkamah rayuan dan mengarahkan supaya bukti yang didapati dalam dompet TLO tidak digunakan.

            Makamah agung menolak dakwaan negeri New Jersey yang mengatakan bahawa peraturan pembuangan tidak boleh digunakan untuk mengelak penggunaan bahan bukti yang dirampas secara tidak sah oleh pentadbir sekolah tanpa mahu mengambilkira bahawa hasil pemeriksaan oleh pegawai sekolah mempunyai keupayaan untuk mencegah. Mahkamah berpendapat bahawa jika pemeriksaan rasmi menyalahi hak perlembagaan maka bukti itu tidak boleh dipakai dalam kes jenayah.

            Dari segi kesahan pemeriksaan, mahkamah agung setuju dengan mahkamah Juvenil bahawa pemeriksaan tanpa waran oleh sekolah tidak menyalahi pindaan 4, sekolah mempunyai kepercayaan munasabah bahawa pelajar itu memiliki bukti aktiviti yang menyalahi undang-undang atau aktiviti menganggu disiplin dan peraturan sekolah bagaimanapun mahkamah agung tidak setuju dengan mahkamah Juvenil yang mengatakan bahawa pemeriksaan dompet TLO tiada kaitan dengan tuduhan ke atas TLO,

Pg 129-130
            Kedua-dua pernyataan ini – yang mana Pindaan ke-4 dilaksanakan di Amerika Syarikat melalui Pindaan ke -14, dan tindakan sekolah awam adalah bergantung kepada had yang ditentukan oleh Pindaan ke-14 – mungkin memadai dengan jawapan kepada cadangan di mana Pindaan ke -14 tidak melarang pencarian yang keterlaluan oleh pegawai sekolah. Walau bagaimanapun, dalam hujah balas, New jersey telah memberi hujahan yang menyatakan hujahan Pindaan ke-4 menunjukkan bahawa Pindaan ini bertujuan untuk menyelaraskan pencarian dan rampasan yang dilakukan oleh pegawai penguatkuasaan undang-undang sahaja; walaupun pegawai sekolah awam adalah ejen negeri menurut Pindaan ke-14, namun Pindaan ke-4 tidak memberi hak penguatkuasaan ini kepada mereka.

            Mungkin benar Pindaan ke-4 sebenarnya bertujuan untuk membangkitkan semula amalan pre-Revolutionary yang menggunakan waran am atau bantuan surat dakwa ( writs of assistance ) untuk memberi kuasa kepada pegawai mencari penyeludupan Mahkota. Tetapi Mahkamah ini tidak pernah menghadkan larangan Pindaan ini ke atas pencarian dan rampasan yang tidak munasabah dalam operasi seperti yang dilakukan oleh pihak polis. Lagipun, Mahkamah sudah lama diberitahu tentang kecaman Pindaan ke-4 yang menghalang pelaksanaan “tindakan berbentuk kerajaan” – iaitu “tindakan yang dilakukan oleh penguatkuasa yang agung”. Lagipun, kita telah mendapati bahawa Pindaan ke-4 sesuai dilaksanakan untuk aktiviti awam seperti mana penguatkuasa jenayah : pemeriksa bangunan dan ahli bomba yang memecah masuk premis kediaman untuk memadam api, semuanya tertakluk kepada kawalan yang dilaksanakan oleh Pindaan ke-4. Cuba kita lihat dalam kes Camara v. Mahkamah Perbandaran, “sebab utama Pindaan ini, seperti yang dipersetujui oleh keputusan Mahkamah, bertujuan untuk memelihara keselamatan  dan kerahsiaan individu daripada pencerobohan yang sewenang-wenangnya dilakukan oleh pegawai kerajaan.” Oleh kerana setiap individu inginkan kerahsiaan dan keperibadian yang selamat, maka “kesengsaraan samada tujuan kerajaan untuk menyiasat pencerobohan undang-undang jenayah atau perlanggaran undang-undang  atau tahap pengawalan” kini menjadi “sesuatu yang ganjil   jika ingin diperkatakan bahawa harta individu dan peribadinya dilindungi sepenuhnya oleh Pindaan ke-4 hanya apabila individu itu disyaki bertindak seperti penjenayah.”

            Dengan tidak berlandaskan bahawa secara umunya, Pindaan ke-4 tidak sesuai untuk digunakan oleh aktiviti pihak berkuasa awam, hanya sedikit mahkamah merumuskan bahawa pegawai sekolah perlu dikecualikan dari pernyataan Pindaan ke-4 memandangkan mereka mempunyai kuasa semulajadi yang istimewa ke atas murid sekolah. Guru dan pentadbir sekolah bertindak sebagai in loco parentis apabila berurusan dengan pelajar; kuasa mereka adalah seperti ibu bapa, oleh itu, mereka tidak perlu tertakluk kepada Pindaan ke-4. Oleh itu, mereka tidak boleh mendapat imuniti sebagai ibu bapa dari sekatan yang terdapat dalam Pindaan ke-4. 

m/s 131 notip
….. sambungan ayat baru..

Piawaian penentuan yang munasabah memerlukan "keseimbangan keperluan yang bertentangan antara pencerobohan dan pencarian yang diperlukan." Di satu pihak,  jangkaan munasabah terhadap privasi individu dan keselamatan peribadi; di pihak lain, kerajaan memerlukan kaedah yang berkesan untuk merapatkan kerengganan ini.

Walaupun pencarian atau mengeledah barang atau bagasi adalah terhad, ia tetap mengganggu hak kebebasan seseorang. Pindaan Keempat telah menyediakan perlindungan kepada hak privasi seseorang, namun mengeledah barang kanak-kanak adalah tetap merupakan satu pencabulan yang teruk terhadap hak kebebasan individu.

Sememangnya, Pindaan Keempat tidak melindungi subjektif jangkaan privasi yang tidak munasabah. Untuk menerima perlindungan dari  Pindaan Keempat, satu jangkaan tanpa gangguan bahawa masyarakat “bersedia untuk dikenali sebagai sah.” Kanak-kanak mempunyai hak secara mutlak membawa barangan peribadi ke sekolah tanpa gangguan privasi.

Kini mahkamah mengalami kesukaran mengekalkan  disiplin sekolah awam, keadaan bukannya sangat dahsyat sehingga  memaksa pelajar menuntut tiada jangkaan privasi yang munasabah seperti perumpamaan banduan yang tiada jangkaan munasabah privasi dalam sel-sel mereka. Murid sekolah dengan banduan adalah merupakan dua keadaan yang berlainan dan dipisahkan oleh fakta kesalahan jenayah dan pemenjaraan.

Cadangan supaya kanak-kanak tidak membawa barangan peribadi ke sekolah amat mengejutkan. Kanak-kanak bukan setakat membawa barang keperluan untuk belajar, tetapi juga barangan lain seperti kunci, wang dan keperluan kebersihan diri. Tambahan  pula kanak-kanak  mungkin membawa  dompet yang mengandungi gambar yang amat peribadi, surat dan diari.  Akhir sekali kanak-kanak berhak secara sah untuk membawa barangan yang berkaitan dengan kurikulum tambahan atau aktiviti rekreasi. Ringkasnya kanak-kanak merasakan mereka tidak bersalah membawa barangan peribadi ke sekolah.


Student’s Rights – 132

Bertentangan dengan kepentingan privasi kanak-kanak mesti ditetapkan kepentingan guru-guru dan pentadbir-pentadbir dalam memelihara disiplin dalam bilik darjah dan di kawasan sekolah.  Memelihara peraturan dalam bilik darjah tidak mudah, tetapi sejak kebelakangan ini, sekolah dicemari pelbagai masalah yang memburukkan lagi keadaan:penggunaan dadah dan keganasan jenayah di sekolah-sekolah telah menjadi masalah sosial yang utama. Di sekolah-sekolah yang terdapat masalah-masalah disiplin yang sangat teruk, pemeliharaan perintah dan persekitaran pembelajaran yang teratur memerlukan penyeliaan rapi ke atas kanak-kanak sekolah, serta penguatkuasaan peraturan dijalankan dengan sempurna.  "Peristiwa-peristiwa yang melibatkan disiplin adalah peristiwa-peristiwa kerap berlaku dan kadangkala perlukan kesegeraan,tindakan yang efektif." Oleh sebab itu, kita telah mengenalpasti cara untuk memelihara keselamatan dan kelicinan pengurusan sekolah yang memerlukan sedikit keanjalan dalam prosedur-prosedur disiplin, dan kita menghormati nilai yang boleh memelihara ketidakrasmian hubungan guru-pelajar.

            Kemudian, bagaimana, harus kita berjuang untuk memperseimbangkan antara jangkaan privasi pelajar sekolah yang sah bersama keperluan sekolah untuk mengekalkan satu persekitaran  yang sah di mana pembelajaran dapat berlaku? Ia adalah jelas yang penubuhan sekolah memerlukan beberapa pengurangan dalam sekatan-sekatan oleh pihak berkuasa awam.  Keperluan waran, khususnya, adalah tidak sesuai untuk persekitaran sekolah; memerlukan seorang guru untuk mendapatkan satu waran bagi mencari seorang kanak-kanak yang disyaki terlibat dengan satu pelanggaran peraturan sekolah(atau undang-undang jenayah) akan melibatkan campur tangan segera untuk penyenggaraan dan memenuhi keperluan prosedur-prosedur disiplin yang tidak rasmi di sekolah-sekolah.  Sahaja seperti kita ada dalam kes-kes lain, tanpa keperluan waran apabila "beban mendapat satu waran adalah berkemungkinan untuk menggagalkan tujuan kerajaan di sebalik mencari," kita diberitahu hari ini, pegawai-pegawai sekolah tidak perlu mendapatkan satu waran sebelum mencari seorang pelajar yang berada di bawah kuasa mereka.

            Setting sekolah juga memerlukan sedikit pengubahsuaian terhadap tahap syak aktiviti haram untuk menjustifikasikan satu carian. Biasanya, satu carian -satu yang mungkin dibenarkan untuk dijalankan dengan tiada satu waran, mestilah berasaskan "punca yang mungkin" untuk mempercayai bahawa pencabulan undang-undang telah berlaku. Bagaimanapun "punca yang mungkin" bukan satu keperluan yang boleh mengesahkan sesuatu carian.  Perintah asas Fourth Amendment adakah itu pencarian dan perampasan menjadi munasabah, dan walaupun "kedua-dua konsep punca yang mungkin dan keperluan kepada satu waran mempengaruhi kemunasabahan satu carian, ... dalam keadaan tertentu yang terhad mahupun diperlukan. Oleh itu, kita ada dalam sebilangan kes dikenali kesahan pencarian dan perampasan berdasarkan syak wasangka yang, walaupun "munasabah" tapi tidak mencapai tahap punca yang mungkin.  Di manapun, untuk menseimbangkan kepentingan kerajaan dan peribadi, mencadangkan bahawa kepentingan awam adalah servis terbaik oleh  standard Fourth Amendment terhadap  kemunasabahan yang terhenti sekejap kerana punca yang mungkin, kita tidak dapat teragak-agak untuk menerima standard seumpama itu. 

            Kita menyertai majoriti mahkamah yang telah memeriksa isu ini dalam merumuskan yang penyediaan kepentingan-kepentingan peribadi murid sekolah dengan keperluan guru-guru dan pentadbir-pentadbir cukup banyak untuk kebebasan bagi mengekalkan peraturan di sekolah-sekolah. Ini tidak memerlukan pematuhan yang ketat kepada keperluan pencarian berdasarkan punca yang mungkin untuk mempercayai bahawa pencarian itu telah menyalahi atau melanggar undang-undang.  Kesahan pencarian seorang pelajar harus bergantung hanya kepada kemunasabahan, dalam semua keadaan pencarian. Penentu kemunasabahan dalam pencarian melibatkan dua kali siasatan:pertama, seseorang mesti mempertimbangkan "jika...tindakan adalah wajar di permulaannya,"kedua,seseorang mesti menentukan sama ada pencarian adalah sebenarnya dipimpin "adalah sepatutnya berhubung dalam skop......................