Marietta NORTON, Oscar Heffner, Richard Crawford, Joseph Garber, David Coker, George Ball, Robert McCall and Mike Haga, Plaintiffs-Appellants, v. The DISCIPLINE COMMITTEE OF EAST TENNESSEE STATE UNIVERSITY, Mack Davis, Ella Ross, Dorman Stout, Willene Paxton, Joan Dressel, John Mercer, Phil Thomas, East Tennessee State University, Delos P. Culp and The State Board of Education of and for The State of Tennessee, Defendants-Appellees, 419 F.2d 195

WEICK, Circuit Judge. Appellants, students of East Tennessee State University, were suspended by the University’s Discipline Committee after a hearing on charges of distributing on the campus “material of a false, I seditious and inflammatory nature.” J This material was calculated to cause a ‘ disturbance and disruption of school ac-j tivities and to bring about ridicule of ! and contempt for the school authorities. The students perfected an administrative' appeal to the President of the University, who upheld the decision of the Discipline Committee.

The students then instituted the present action in the District Court under the civil rights statutes for a mandatory injunction to compel their reinstatement, claiming that their constitutional rights had been denied them. The District Judge, who had previous experience in cases of this type, *granted them an evidentiary hearing. Each of the appellants, the Chairman of the Discipline Committee, and the President of the University testified. A stipulation was admitted in evidence containing the alleged inflammatory literature and | an admission that each of the appellants distributed one or both pieces of it.

Transcripts of the hearings conducted by the Discipline Committee were received in evidence. The District Judge at the conclusion of the hearing rendered an oral opinion and adopted findings of fact and conclusions of law, in which he denied the injunction. This appeal followed. Two pieces of the alleged inflammatory literature were distributed, one on May 28, 1968, and the second on May 30, 1968, the latter being only one day before the beginning of final examinations.

The Discipline Committee took immediate action and sent three-day notices of a hearing to be held on the charges .to all of the students who had distributed the literature except two students who received only one day’s notices. Copies of the offensive literature are appended hereto. Dean Davis, Chairman of the Discipline Committee, testified: “I felt that the whole idea was designed to disrupt the functioning of the University and to adversely prejudice the students on the campus.

I felt that it * * * that the contents of both handouts could conceivably cause an eruption on the campus which would disturb the functioning of the University.” Dr. Culp, the President of the University, testified: “Q Dr. Culp, did you think that these handouts tended to disrupt the shool program and interfere with the education of people who were concerned about acquiring an education? “A Yes, I had very definite fears that we might have serious consequences on the campus.” The District Judge was of the view that the inflammatory nature and disruptive characteristics of the literature appeared on its face.

He made the following finding of fact: “XIV “That the Discipline Committee could properly have found that these documents were abrasive, abrupt and rude in character and that they were calculated to arouse resentment both on the part of the administration and on the part of the students of East Tennessee State University. “XV “That at least one document is susceptible of the

interpretation that the writer of the

article is encouraging demonstrations similar to those which had occurred on other campuses throughout the country; and the

article can be reasonably and logically construed to mean that the writer of the

article was calling upon the students of East Tennessee State University to engage in the same kind of ¡1 conduct and activity which had oc- [ curred at Columbia University and ); elsewhere.” (202a-203a) This finding would appear to be supported by the following excerpt from the first sheet: “And how has the ETSU student body reacted: Have they precipitated a revolution like French students? No. Have they brought about an entirely new and liberal administration like Polish students? — No. Have they been the forerunners of a new democratic spirit like Czech students?— No.

Have they seized buildings and raised havoc until they got what they were entitled to like other American students? — No. What then have the ETSU students done? They have sat upon their rears and let the administration crap upon their heads, thats what. That’s right folks, in case you’d not noticed, ETSU students are in the vast majority apathetic — they open their mouths only to yawn, life [sic] their arms only to stretch, and like unto L’il Abner’s Smoes, exist only to serve those who would take advantage of them. Well, Smoes, what have you to look forward to next year?

Maybe the administration will buy some Dean’s turnip patch for ninety grand. Maybe all the girls will be required to wear chastity belts (the keys to be kept on reserve at the library — check ’em out for an hour at a time). Maybe social hours will be made applicable to males as well as females. Maybe — Maybe— Maybe— Maybe students will get some sense and learn that this should cease and that the only way to see that it does is to stand up and fight.

Maybe students will learn that the Supreme Court has declared that young people do not sacrifice their citizenship and all rights and privileges therewith by enrolling in a university. Maybe students will learn that no matter what the despots who run this school say, students have the constitutional right to protest, demonstrate, and demand their rights; that women students may not constitutionally be eam-pussed; that students may damned well wear what they want and say what they please.

And maybe, just maybe, they will discover that there are student leaders, organizers to rally around so as to assault the bastions of administrative tyranny. Maybe students will learn that at least. And remember that when the time comes to fight for what you are justly entitled to, that if you refuse to come along then you have no justification whatsoever for ever complaining again. When you are called to protest and you sit back on your butt, then, baby, that means that whatever the administration does is OK with you.

When we move against them, remember, like the man says, Tut up or shut up.’” (18a) The language, referring to their fellow students, “Have they seized buildings and raised havoc until they got what they were 'entitled to like other American students”, was obviously intended to call their attention to campus disturbances around the country, and would include such universities as Columbia, Berkeley, Harvard, Cornell, Ohio State and Kent State.

The students were urged to “stand up and fight” and to “assault the bastions of administra- ' tive tyranny.” This was an open exhortation to the students to engage in disorderly and destructive activities. The University administration was referred to with an obscenity and called “despots”. This vicious attack on the administration was calculated to subject it to ridicule and contempt, and to damage the reputation of the University. The reference to “chastity belts” for girls is a crude, vulgar remark offensive to women students and beyond the dignity of most college students to make.

Reliance was made on the Supreme Court for declaration of the constitutional rights of the students to “damned well wear what they want and say what they please.” In our opinion such reliance is misplaced. The students have no constitutional right to misbehave on the college campus.

In the second piece, which impliedly approved the first piece, the school administration was referred to as a “problem child”; and stated that it is a crime for the student to shelter by their silence that “problem child”, and that the students should now reprimand “our misguided child” and educate him. “We must now educate the educators” and “teach them- the lesson of reality * * * although they may be shocked by it.” Ordinarily students go to college to acquire an education, but these students apparently want to educate the teachers. ; It would indeed be difficult to main-itain discipline on the campus of an in- • stitution of higher learning if conduct of this type were tolerated.

We would doubt that parents would send their college-age children to such an institution if they knew that the philosophy as contained in the literature was taught or sanctioned there. We cannot imagine that a student could have confidence in the teachers in a university such as the literature portrays. Appellants contend that distribution of the two handouts was privileged under the First Amendment to the Constitution as an expression of free speech unaccompanied by acts of violence. They rely principally on Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.

Ed.2d 731 (1969), and cases cited therein. Tinker involved a few high school children who did nothing except wear black arm bands for a few days to publicize their objections to hostilities in Vietnam. These children did not urge a riot, nor were they disrespectful to their teachers. Mr.

Justice Fortas, who wrote the opinion in Tinker, was careful to mention: “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.” Id. at 514, 89 S.Ct. at 740. In the present case, Dean Davis and President Culp did forecast disturbances and they acted quickly to prevent threatened disorders by making the charges against the inciters and holding the hearings. Burnside v.

Byars, 363 F.2d 744 (5th Cir. 1966), cited in Tinker, enjoined high school authorities from enforcing a regulation forbidding students from wearing “freedom buttons” with the words “One Man One Vote” and “SNCC” thereon. There was no proof that regular activities of the school were hampered. On the same day of the decision in Burnside, however, the Fifth Circuit reached an opposite conclusion in Blackwell v.

Issaquena County Board of Education, 363 F.2d 749 (5th Cir. 1966), where the wearing of such buttons “created a state of confusion, disrupted class instruction, and resulted in a general breakdown of orderly discipline.” After distribution of the first piece in the present case, twenty-five students went to the office of Dean Thomas and wanted to get rid of this group of agitators. It is not required that the college authorities delay action against the inciters until after the riot has started and buildings have been taken over and damaged.

The college authorities had the right to nip such action in the bud and prevent it in its inception. This is authorized even in criminal cases. As well stated by Chief Justice Vinson in Dennis v. United States, 341 U.S. 494, at 509, 71 S.Ct. 857, at 867, 95 L.Ed. 1137 (1951): “Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited.

If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required.” In Schenck v. United States, 249 U.S. 47, at 52, 39 S.Ct. 247, at 249, 63 L.Ed. 470 (1919), Mr. Justice Holmes said: “We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v.

Wisconsin, 195 U.S. 194, 205, 206, 25 S.Ct. 3, 49 L.Ed. 154. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439, 31 S.Ct. 492, 55 L. Ed. 797, 34 L.R.A.(N.S.) 874.

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.” Nor does this case involve lack of due process which was denied in Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.1961), and Knight v. State Board of Education, 200 F. Supp. 174 (D.C.M.D.Tenn.1961). Three days’ notice of hearing was given to all except two students, and one of them appeared with his lawyer.

On the day of the hearing some of the students asked for a postponement to get counsel, but the request for a continuance was denied because the Committee was of the view that they had had a reasonable opportunity to obtain counsel if they really wanted them. The District Judge held that the question whether a continuance should be granted was discretionary with the Committee, and he found no abuse of discretion. He was motivated largely by the fact that the inflammatory nature and disruptive characteristics of the literature appeared on its face and it was unnecessary to obtain evidence to prove that fact.

We agree. At the hearing before the Committee each student was given full opportunity to state his views. The President of the University was impressed by the fact that none of the students expressed any sorrow or regret for what he had done. None of the students gave any reason for not taking up grievances with the Committee established to hear them, namely, the Student-Faculty Liaison Council. Furthermore, each student was given an opportunity to obtain counsel in his administrative appeal to the President, but no one availed himself or herself of that right.

They were also given a pie-nary hearing in the District Court with counsel. Their contention of a denial of due process was thereby rendered moot. Barker v. Hardway, 399 F.2d 638 (4th Cir.1968). Finally, it should be emphasized that appellants were not expelled from the University, but were merely suspended. The difference between expulsion and suspension was explained by Dr. Davis as follows: “I continue to hear reference to the matter of expel or expulsion.

We at no time even mentioned the word expel or expulsion. “The plan of suspension is a restraint from enrollment which gives those of us who are concerned with the administration affairs time to reflect and to study what has happened.

It also gives the student time to reflect and to study, and to appear before the committee then so that the committee and the student can, if possible, come to an agreement about future attendance. “There is a difference in the meaning of suspension and expulsion.” (159a) The District Judge at the close of the hearing suggested that the University give hearings on applications for rein-statements. The record does not reveal that any such applications were made. The students are apparently insistent that they had the right to do what they did and they are going to stand by it.

In our judgment there is no basis for federal interference with the disciplinary procedures of the State University in this case. We agree with the District Court that the charges that the literature was false and inflammatory, was sufficiently definite. It was not necessary to have a specific regulation providing for disciplinary action for the circulation of false and inflammatory literature. The University had inherent ' authority to maintain order and to discipline students. We do not believe that there is a good analogy between student discipline and criminal procedure. Affirmed.

EXHIBIT A STUDENTS ARE PEOPLE TOO [First Piece] Its been a long quarter, hasn’t it? And an interesting one too. Too interesting in fact.

This has been a quarter wherein the administration spent $94,000 to buy a lousy half-acre of land (rumored to belong to a near relative of a prominent Dean); a quarter wherein the administration has refused an opportunity to advance the school’s athletic status (and God knows, it needs it) by rejecting membership in the Southern Conference ; a quarter wherein the administration has forbidden girls to wear the latest fashions (the threat of a riot overturned that ruling); a quarter wherein the administration fired some poor student from his job at the library because he grew a beard; a quarter wherein mandatory TOTC [sic] has continued unchallenged (the school gets paid so much money perhead by the Army, so, son, like it or not there is a price on your head); a quarter wherein the bookstore monopoly has persisted in its blatant piracy (and blew a fortune putting out a propoganda sheet), a quarter wherein the cafeteria fare has progressively worsened; a quarter wherein the administration seriously threatened censorship of the school newspaper (all those filthy pictures); a quarter wherein women’s social rules were maintained at a level of liberality that was old when Queen Victoria was young; a quarter wherein the campus law (rent-a-cop) was permitted to continue carrying guns (caution; your local copy is armed and may be dangerous); a quarter where the administration bureacracy achieved new heights of rudeness, inefficiency, and intolerance.

Yes — an interesting quarter. And how has the ETSU student body reacted: Have they precipitated a revolution like French students? No. Have they brought about an entirely new and liberal administration like Polish students? — No. Have they been the forerunners of a new democratic spirit like Czech students? — No. Have they seized buildings and raised havoc until they got what they were entitled to like other American students? — No. What then have the ETSU students done? They have sat upon their rears and let the administration crap upon their heads, thats what.

That’s right folks, in case you’d not noticed, ETSU students are in the vast majority apathetic — they open their mouths only to yawn, life [sic] their arms only to stretch, and like unto L’il Abner’s Smoes, exist only to serve those who would take advantage of them. Well, Smoes, what have you to look forward to next year? Maybe the administration will buy some Dean’s turnip patch for ninety grand. Maybe all the girls will be required to wear chastity belts (the keys to be kept on reserve at the library — check ’em out for an hour at a time). Maybe social hours will be made applicable to males as well as females.

Maybe — Maybe—Maybe— Maybe students will get some sense and learn that this should cease and that the only way to see that it does is to stand up and fight. Maybe students will learn that the Supreme Court has declared that young people do not sacrifice their citizenship and all rights and privileges therewith by enrolling in a university.

Maybe students will learn that no matter what the despots who run this school say, students have the constitutional right to protest, demonstrate, and demand their rights; that women students may not constitutionally be campussed; that students may damned well wear what they want and say what they please. And maybe, just maybe, they will discover that there are student leaders, organizers to rally around so as to assault the bastions of administrative tyranny. Maybe students will learn that at least.

And remember that when the time comes to fight for what you are justly entitled to, that if you refuse to come along then you have no justification whatsoever for ever complaining again. When you are called to protest and you sit back on your butt, then, baby, that means that whatever the administration does is OK with you. When we move against them, remember, like the man says, “Put up or shut up.” PLEASE SEAL AND STAMP ANY CORRESPONDENCE TO BOX 9527 ETSU EXHIBIT A-I “STUDENTS ARE PEOPLE TOO” “Congress must not interfere with freedom of religion, speech or press, assembly, and petition.

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the people peaceably to assemble, and to petition the government for a redress of grievances.” (first amendment, U.S. constitution) These aged words are a reality to most American people. “Students are people too, American people.” These are young words that should be a reality. We find the administration at E.T.S.U. denying the reality of one group of these words by certain rules, regulations and policies.

For our purposes we will put these unjust rules, regulations and policies into two broad categories. The first are those that restrict our personal freedom as “American people”. The second being those that deny us the right to openly descent [sic] disagree with the first. Even as we write this we are in danger with the school administration. Is this just, denying American people rights that are clearly stated in the first amendment of the constitution? By restricting our personal freedom and denying us the right of open descent [sic] about this, the administration of E. T. S.

U. is saying that we are not “American people”, and to those principles shall this publication be devoted. *****THE PRESIDENTS DOOR IS ALWAYS OPEN BUT HIS MIND IS CLOSED***** “EXTRACTS FROM THE STUDENT BILL OF RIGHTS. AAUP EXHIBIT A-II Academic institutions exist for the transmission of knowledge, pursuit of truth, the development of students and general well being of society. I. Freedom of Access to Higher Education A. Protection of freedom of expression — student is free to express any opinion in the classroom B.

Protection against improper academic evaluation — the student should be graded according to academic achievement and never should his grade be influenced by prejudice C. Protection against improper disclosure — no information regarding student views, beliefs, or political associations should be released by the institution without the consent of the student II. Student A. Freedom of Association — student should be free to organize and join associations to promote common interests of members. 1. Membership, policies and actions of the organization should be determined by vote of members. 2.

If an advisor is required the members should choose the advisor and the advisor should be free only to advise the organization. B. Freedom of Inquiry and Expression 1. Students should be free to discuss any question that interest them and to express opinions publicly and privately 2. The student organization should be free to invite and hear anyone they may choose. C. Student Participation in Institutional Government — students should be free to express opinions in regard to institutional policy.

The students should also have a clearly defined means of participating in formulative and application of institutional policy affecting academic and student affairs D. Student Publications 1. Student press should be free from censorship and editors should be free to develop their own editorial policies and news coverage. 2. No editor should be removed for any editorial [sic] comment Off-Campus Freedom of Students A. Exercise of Rights of Citizenship —All students have rights both as citizens and as members of the academic community B.

Institutional Authority and Civil Penalties — anytime a student has any trouble with the civil authority the institution should aid the student. No civil action should influence the institutions relation with the student. IV. Procedural Standards in Disciplinary Proceedings A. Investigation of Student Conduct —no institution official has the right to search a student's place of residence without a search warrant. In the case of institution dorms the institution should have to submit an application stating what the institution is searching for and why. B.

Status of Student Pending Final action — In a case in which a final decision has not been made. The institution should allow the students to practice all the rights he normally has EXHIBIT A-IV [Second piece] STUDENTS ARE PEOPLE TOO Students of ETSU: Mr. Oscar Heffner was questioned by Deans Thomas, Ross, and Davis May 28 concerning his alleged participation in the publication “Students are People Too.” The publication contained several complaints about administrative policy concerning students’ rights and privileges.

The administrative position appears to be that no student has the right to distribute free literature on campus. The University Disciplinary Committee, which seats no students, met May 28. Mr. Heffner was unable to attend the meeting. Today, May 29, Mr. Heffner met with the appropriate Deans concerning his status at the University. Mr. Heffner was charged with distributing the publication and with attempting to incite students to riot. He will meet the Committee tomorrow, May 30. Students’ rights are at stake here.

Any student has the same Constitutional rights as any other citizen of the United States, and he should be allowed to exercise his rights. It is a mistake to hide truth from a child. To deny him reality is to cheat him. For when the time comes that he must meet and deal with reality, it will destroy him. It is a crime to shelter a child and to leave him unprepared. It is precisely this crime that we as students in this university are guilty of. You see, we have a problem child. We have sheltered our administration with our silence.

Although we will claim the administration as no offspring of ours, we are in a similar situation. We have allowed this administration to build a false ego; we have allowed them to think that we approve of their childish games. We must now reprimand our misguided child. It is time to tell the administration the truth. In those hollow halls the administrators have long sat believing themselves to be “Educators.” In playing this game they believe that unerring judgment comes only after many years rather than after much thought. It is with this false wisdom that they pass judgment and regulations on us.

And we have followed this “wisdom” rather than crush the pride they hold in being dictators. We must now educate the “educators.” We must teach them the lesson of reality and allow them to know the truth, although they may be shocked by it. The lesson is: 1. They are not the rulers and we the ruled. We are equals. We do not follow their arbitrary decisions. We work together to arrive at decisions. 2. Their “wisdon” [sic] is false and their outlook is narrow. 3. We will not longer allow this ignorance to persist. If this insult to our position continues, we will calmly and intelligently exercise our power.

This lesson can be taught very simply by telling the administration these three points and by refusing to play their game any longer. This may be a cruel, possibly even tramatic, jolt to them, but it will be best for them in the long run. So let us set about our task and teach this misguided child the facts of life. If we do, there is a good chance the child will mature into a rational, intelligent ADULT; if we don’t, the creature will surely grow into a hungry, howling monster. (SGD) Robert L. McCall . Jones v.

State Board of Education, _279 F.Supp. 190 (D.C.M.D.Tenn.1968), aff’d, 407 F.2d 834 (6th Cir. 1969) ; Knight v. State Board of Education, 200 F.Supp. 174 (D.C.M.D.Tenn.1961).