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April 22, 1970


Before Cummings, Circuit Judge, and Juergens and Wise, District Judges.

The opinion of the court was delivered by: Juergens, District Judge.

  This suit is brought by plaintiffs to declare unconstitutional on its face and as applied and to enjoin the enforcement of Chapter 122, Section 10-22.6, Illinois Revised Statutes, and to order plaintiff Marquitta Whitfield reinstated as a student at Cairo High School. The suit is on plaintiff's behalf and on behalf of all other students in Cairo High School who have allegedly been or will be denied their right to due process of law under the authority of the questioned section.

Plaintiff Marquitta Whitfield was in September, 1969, a 16-year old Negro girl and a student at Cairo High School in Cairo, Illinois.

She was suspended from school for a period of seven days by the principal. On September 24, 1969, she returned to school and was again suspended for seven days by the principal; and on September 29 she was expelled by the school board for the remainder of the school year. The suspensions and expulsion were for alleged gross disobedience or misconduct.

Prior to the final action of the board expelling Marquitta, notice was sent to and was received by her parents on September 27, 1969. The notice is as follows:

    "You are hereby requested to appear at a meeting of
  the Board of Education of School District No. 1,
  Alexander County, Illinois, to discuss the behavior
  of Marquitta Whitfield.
    "The time of the meeting will be Monday, September
  29, 1969, at 7:30 P.M. and the place will be at the
  office of the Board of Education, School District No.
  1, Alexander County, Illinois, at 2037 Washington
  Avenue, Cairo, Illinois, and the purpose of the
  meeting will be to discuss Marquitta Whitfield's
  behavior amounting to gross disobedience or
  misconduct, including, but not limited to her conduct
  at Cairo High School on September 24, 1969, when in
  the school, against regulations, she began singing
  and causing other students to sing and in addition
  thereto on the same day she talked improperly to a
  teacher or teachers and also such other acts of
  general gross disobedience or misconduct on the part
  of Marquitta Whitfield since the beginning of school
  this year, as may come before said Board of
    "Because of Marquitta Whitfield's gross
  disobedience or misconduct, Marquitta Whitfield may
  be expelled from the Cairo High School by this Board
  of Education for the remainder of the school year,
    "You are further notified that this Notice is given
  to you pursuant to Chapter 122, section 10-22.6 of
  the Illinois Revised Statutes."

The meeting was held on September 29, at 7:30 p.m., as the notice indicated.

Plaintiffs admit that Marquitta's mother appeared at the hearing. The defendants assert that both parents appeared. Marquitta herself did not appear. It has been determined that the parents received notice, informing them of the hearing and the purpose for the hearing, namely, Marquitta's behavior. It is not clear whether Marquitta's mother and father participated in the hearing or did not participate. Defendants contend that Marquitta's parents, both father and mother, attended the hearing and participated but that Marquitta did not attend although it is believed that she knew about it. Plaintiffs do not anywhere in their briefs or pleadings state whether or not Marquitta had actual knowledge of the hearing. At the hearing several witnesses were called and testified as to Marquitta's conduct and gave testimony concerning specific acts. The uncontradicted affidavits of John Widmar, principal of Cairo High School; Leo Verble, Dean of Boys; Helen Adams Cole, Dean of Women; and Joanne B. Dale, music teacher, set forth specific acts performed by Marquitta at the High School. Following the hearing the board voted to expel Marquitta for the remainder of the school year — five members voting for expulsion, one member voting against expulsion, and one member voting "Present" — the latter two members being the Negro members of the board; the remainder of the board is white.

The specific acts of Marquitta at the High School were well within the definition of gross disobedience or misconduct and the court so finds. We are here dealing in specifics and not in the abstract.

Schools are dedicated to accomplish the education of our young people who spend several hours each day in school, which during the early part of their life is virtually a home away from home. As parents are charged with the discipline of children in the home, so, too, are the teachers and school officials charged with the responsibility of the conduct, training and education of our young people while in school. Just as parents may be chastised for the conduct of their children under certain circumstances, for example, violation of the truancy laws, so, too, may school officials be criticized and brought to task for failing to circumscribe the conduct of children while they are in their charge at school. In order to accomplish this purpose, certain rules and regulations must be prescribed as a guide within the reaches of which a child's conduct must remain. These rules in the lower grades are far less stringent and there is far greater need to provide liberal or flexible standards of conduct so that discipline of our children of tender years may be maintained in accordance with the accepted standards of the conduct as established by the mores of our society. While the principal use to which the schools are dedicated is to accommodate students during prescribed hours for certain types of activities, discipline and social behavior are not only an inevitable part of the process of schooling, they are also an important part of the educational process. As was stated in Tinker v. Des Moines School Dist., 393 U.S. 503, 512, 513, 89 S.Ct. 733, 740, 21 L.Ed.2d 731 (1968):

    "* * *. 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 the
  requirements of appropriate discipline in the
  operation of the school' and without colliding with
  the rights of others. * * *. 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. * * *.
    "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

While we are not here dealing directly with freedom of speech, yet, we do face head-on the proper conduct for students which must be maintained in such a manner that they may exercise their rights guaranteed to them by the Constitution, but in so doing these rights may not be exercised in such a manner as to abrogate the rights of others or in such a manner as to disrupt the ...

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