Baker v. Downey City Board of Education

307 F. Supp. 517, 1969 U.S. Dist. LEXIS 8684
CourtDistrict Court, C.D. California
DecidedDecember 17, 1969
Docket69-2327
StatusPublished
Cited by29 cases

This text of 307 F. Supp. 517 (Baker v. Downey City Board of Education) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baker v. Downey City Board of Education, 307 F. Supp. 517, 1969 U.S. Dist. LEXIS 8684 (C.D. Cal. 1969).

Opinion

MEMORANDUM OPINION FOR USE IN PREPARATION OF PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT.

CRARY, District Judge.

Norma J. Baker and Paul David Schaffner, as guardians ad litem for their minor sons, David Keith Baker and William Alan Schaffner, said minor sons hereafter referred to as plaintiffs, complain of violation of the civil rights of their sons and for injunctive and declaratory relief under Title 42, United States Code, §§ 1981 and 1983, and Title 28, United States Code, § 2201.

William Schaffner, then a senior, and student body president of Earl Warren High School, was, on November 10, 1969, suspended from school for ten school days for use of “profanity or vulgarity” (Pltfs’ Ex. 5), appearing in an off campus newspaper published by the plaintiffs.

David Baker, at the time a senior, and president of the senior class, was likewise suspended from school for ten school days on November 10, 1969, for the same reason. [Pltf’s Ex. 6.]

Both boys were also removed from their school offices.

The reports on the suspensions given to the plaintiffs gave the reason for their suspensions and were issued in compliance with the Education Code of California, Sections 10602-10609. These reports on the suspensions (Exs. 5 and 6) were forms completed by the principal, Mr. A. H. Shiney, who testified that the said forms had been drafted and in use prior to his becoming principal some two years ago.

The plaintiffs and their parents were advised by the school authorities that the boys were removed from their student offices because of their failure to comply with their oath of office. 1

Since November, 1968, the plaintiffs had jointly written, published and distributed to the students of Warren High School an off-campus newspaper entitled “Oink”. Twelve issues were so published and distributed, nine of said issues before the controversial issue (Ex. 4), which, as the other issues, was distributed to students entering the campus for morning classes during the period from about 7:30 A.M. until the first class convened at 8:00 A.M. The distribution of all issues of Oink was made by plaintiffs by handing copies to students just outside the main gate to the campus. On November 5, 1969, copies of Exhibit 4 were being handed to students in that location by plaintiff Schaffner. Plaintiff Baker was standing nearby but inside the gate. Some 450 copies of Oink were given to students as they entered the campus on the morning of November 5, 1969. Copy of Exhibit 4 appears as an appendix hereto.

Warren High School has an enrollment of about 2300 students with a faculty of 95 teachers. Dr. Finch, with many years experience in the field of education, is the Superintendent of the Downey Unified School District in which Warren High School is located. *520 Mr. A. H. Shiney, also an experienced educator, has been principal of Warren High School for approximately two years. He has had some nineteen years experience in the School District. Mr. Thomas H. Robinson, in his eighth year at Warren High School, is the Assistant Principal. The ages of the students range from 13 to 19 years.

The plaintiffs contend that they were illegally suspended for the following reasons: (1) violation of their rights to free speech under the First Amendment of the United States Constitution, (2) without due process of law, (3) that the suspensions were for “habitual” profanity or vulgarity under the provisions of Section 10602, California Education Code, 2 whereas, if it be assumed, arguendo, that their constitutional rights to free speech were not violated, any profanity and vulgarity on their part was not “habitual” and that the said Code section sets forth the exclusive grounds for suspension for profanity or vulgarity, (4) that the plaintiffs did not violate their oath of office and their removal from office was not justified, and (5) there was no distribution of Oink on campus.

Defendants urge (a) that the November 5, 1969, issue of Oink (Ex. 4) contained profane and vulgar words in the Farber article appearing on the third and fourth pages, as well as in the advertisement on the second page, and vulgar retouching of what appears to be a photograph of President Nixon, a part of said advertisement, by the adding and positioning of a finger, (b) that the suspensions were not in violation of the plaintiffs’ right to free speech but were within the authority of the High School administrators in performance of their obligation and duty to maintain a proper educational program with the necessary control and discipline of students to assure its success and to insure the careful supervision of the moral conditions in their school, as required by paragraph 24, Title 5, California Administrative Code, 3 (c) that the due process prescribed by Section 10607 4 is sufficient in the circumstances and that no other proceedings, such as a hearing prior to effecting suspension, are required to conform to the due process rights of plaintiffs, (d) that the plaintiffs rights to free speech were not violated, and (e) the plaintiffs, and each of them failed to uphold the rules and regulations of the student body and school and to set an example in leadership which would be a pattern for conduct among the students and failed to uphold the highest standards of the school, all as required by the terms of their oath of office. [Student by-laws, Article 4, Section 2, Defts.’ Ex. I.]

Free Speech

In support of their position that their constitutional rights to free speech have been violated, plaintiffs argue that the November 5, 1969, issue of Oink (Ex. 4) *521 did not cause disruption or interference with the normal educational program at Warren High School and that they were merely expressing their views and opinions, which they had every right to do although such expression might be unpopular with some.

Zucker v. Panitz, 299 F.Supp. 102, 105 (S.D.N.Y., 1969), on which plaintiffs rely, involved the publishing in a school paper of a paid advertisement opposing the Vietnam war. The District Court held that the paper was open to the free expression of ideas and that the students were entitled to publish the advertisement on freedom of speech grounds.

Plaintiffs also cite Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), which case concerned the rights of a few high school students to wear black arm bands to protest the war in Vietnam. Five students were suspended. The Supreme Court held that the wearing of the arm bands was akin to free speech and that First Amendment rights were available to teachers and students, subject to application in light of the special characteristics of the school environment. The Court went on to say that a student may express his opinions on campus, even on controversial subjects, “* * * if he does so without ‘materially and substantially interfering] with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others. Burnside v.

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Bluebook (online)
307 F. Supp. 517, 1969 U.S. Dist. LEXIS 8684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-downey-city-board-of-education-cacd-1969.