author:
      Mr. Justice Fortas
      Mr. Justice Douglas, Mr. Justice White,

text:
    JOHNSON v. AVERY, COMMISSIONER OF CORRECTION, et al.
    No. 40.
    Argued November 14, 1968.
    Decided February 24, 1969.

      Karl P. Warden argued the cause for petitioner. With him on the brief was Pierce Winningham.

      Thomas E. Fox, Deputy Attorney General of Tennessee, argued the cause for respondents. With him on the brief were George F. McCanless, Attorney General, and David W. McMackin, Assistant Attorney General.

      Melvin L. Wulf filed a brief for the American Civil Liberties Union et al., as amici curiae, urging reversal.

      Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and Robert R. Granucci and George R. Nock, Deputy Attorneys General, filed a brief for the State of California, as amicus curiae, urging affirmance.
   Mr. Justice Fortas

delivered the opinion of the Court. I

I.

Petitioner isservinga life sentence in the Tennessee State Penitentiary. In February 1965 he was transferred to the maximum security building in the prison for violation of a prison regulation which provides:

“No inmate will advise, assist or otherwise contract to aid another, either with or without a fee, to prepare Writs or other legal matters. It is not intended that an innocent man be punished. When a man believes he is unlawfully held or illegally convicted, he should prepare a brief or state his complaint in letter form and address it to his lawyer or a judge. A formal Writ is not necessary to receive a hearing. False charges or untrue complaints may be punished. Inmates are forbidden to set themselves up as practitioners for the purpose of promoting a business of writing Writs.”

In July 1965 petitioner filed in the United States District Court for the Middle District of Tennessee a “motion for law books and a typewriter,” in which he sought relief from his confinement in the maximum security building. The District Court treated this motion as a petition for a writ of habeas corpus and, after a hearing, ordered him released from disciplinary confinement and restored to the status of an ordinary prisoner. The District Court held that the regulation was void because it in effect barred illiterate prisoners from access to federal habeas corpus and conflicted with 28 U. S. C. § 2242. 252 F. Supp. 783.

By the time the District Court order was entered, petitioner had been transferred from the maximum security building, but he had been put in a disciplinary cell block in which he was entitled to fewer privileges than were given ordinary prisoners. Only when he promised to refrain from assistance to other inmates was he restored to regular prison conditions and privileges. At a second hearing, held in March 1966, the District Court explored these issues concerning the compliance of the prison officials with its initial order. After the hearing, it reaffirmed its earlier order.

The State appealed. The Court of Appeals for the Sixth Circuit reversed, concluding that the regulation did not unlawfully conflict with the federal right of habeas corpus. According to the Sixth Circuit, the interest of the State in preserving prison discipline and in limiting the practice of law to licensed attorneys justified whatever burden the regulation might place on access to federal habeas corpus. 382 F. 2d 353.

II.

This Court has constantly emphasized the fundamental importance of the writ of habeas corpus in our constitutional scheme, and the Congress has demonstrated its solicitude for the vigor of the Great Writ. The Court has steadfastly insisted that “there is no higher duty than to maintain it unimpaired.” Bowen v. Johnston, 306 U. S. 19, 26 (1939).

Since the basic purpose of the writ is to enable those unlawfully incarcerated to obtain their freedom, it is fundamental that access of prisoners to the courts for the purpose of presenting their complaints may not be denied or obstructed. For example, the Court has held that a State may not validly make the writ available only to prisoners who could pay a $4 filing fee. Smith v. Bennett, 366 U. S. 708 (1961). And it has insisted that, for the indigent as well as for the affluent prisoner, post-conviction proceedings must be more than a formality. For instance, the State is obligated to furnish prisoners not otherwise able to obtain it, with a transcript or equivalent recordation of prior habeas corpus hearings for use in further proceedings. Long v. District Court, 385 U. S. 192 (1966). Cf. Griffin v. Illinois, 351 U. S. 12 (1956).

Tennessee urges, however, that the contested regulation in this case is justified as a part of the State’s disciplinary administration of the prisons. There is no doubt that discipline and administration of state detention facilities are state functions. They are subject to federal authority only where paramount federal constitutional or statutory rights supervene. It is clear, however, that in instances where state regulations applicable to inmates of prison facilities conflict with such rights, the regulations may be invalidated.

For example, in Lee v. Washington, 390 U. S. 333 (1968), the practice of racial segregation of prisoners was justified by the State as necessary to maintain good order and discipline. We held, however, that the practice was constitutionally prohibited, although we were careful to point out that the order of the District Court, which we affirmed, made allowance for “the necessities of prison security and discipline.” Id., at 334. And in Ex parte Hull, 312 U. S. 546 (1941), this Court invalidated a state regulation which required that habeas corpus petitions first be submitted to prison authorities and then approved by the “legal investigator” to the parole board as “properly drawn” before being transmitted to the court. Here again, the State urged that the requirement was necessary to maintain prison discipline. But this Court held that the regulation violated the principle that “the state and its officers may not abridge or impair petitioner’s right to apply to a federal court for a writ of habeas corpus.” 312 U. S., at 549. Cf. Cochran v. Kansas, 316 U. S. 255, 257 (1942).

There can be no doubt that Tennessee could not constitutionally adopt and enforce a rule forbidding illiterate or poorly educated prisoners to file habeas corpus petitions. Here Tennessee has adopted a rule which, in the absence of any other source of assistance for such prisoners, effectively does just that. The District Court concluded that “[f]or all practical purposes, if such prisoners cannpt have the assistance of a 'jail-house lawyer,’ their possibly valid constitutional claims will never be heard in any court.” 252 F. Supp., at 784. The record supports this conclusion.

Jails and penitentiaries include among their inmates a high percentage of persons who are totally or functionally illiterate, whose educational attainments are slight, and whose intelligence is limited. This appears to be equally true of Tennessee’s prison facilities.

In most federal courts, it is the practice to appoint counsel in post-conviction proceedings only after a petition for post-conviction relief passes initial judicial evaluation and the court has determined that issues are presented calling for an evidentiary hearing. E. g., Taylor v. Pegelow, 335 F. 2d 147 (C. A. 4th Cir. 1964); United States ex rel. Marshall v. Wilkins, 338 F. 2d 404 (C. A. 2d Cir. 1964). See 28 U. S. C. § 1915 (d); R. Sokol, A Handbook of Federal Habeas Corpus 71-73 (1965).

It has not been held that there is any general obligation of the courts, state or federal, to appoint counsel for prisoners who indicate, without more, that they wish to seek post-conviction relief. See, e. g., Barker v. Ohio, 330 F. 2d 594 (C. A. 6th Cir. 1964). Accordingly, the initial burden of presenting a claim to post-conviction relief usually rests upon the indigent prisoner himself with such help as he can obtain within the prison walls or the prison system. In the case of all except those who are able to help themselves — usually a few old hands or exceptionally gifted prisoners — the prisoner is, in effect, denied access to the courts unless such help is available.

It is indisputable that prison “writ writers” like petitioner are sometimes a menace to prison discipline and that their petitions are often so unskillful as to be a burden on the courts which receive them. But, as this Court held in Ex parte Hull, supra, in declaring invalid a state prison regulation which required that prisoners’ legal pleadings be screened by state officials:

“The considerations that prompted [the regulation’s] formulation are not without merit, but the state and its officers may not abridge or impair petitioner’s right to apply to a federal court for a writ of habeas corpus.” 312 U. S., at 549.

Tennessee does not provide an available alternative to the assistance provided by other inmates. The warden of the prison in which petitioner was confined stated that the prison provided free notarization of prisoners’ petitions. That obviously meets only a formal requirement. He also indicated that he sometimes allowed prisoners to examine the listing of attorneys in the Nashville telephone directory so they could select one to write to in an effort to interest him in taking the case, and that “on several occasions” he had contacted the public defender at the request of an inmate. There is no contention, however, that there is any regular system of assistance by public defenders. In its brief the State contends that “[t]here is absolutely no reason to believe that prison officials would fail to notify the court should an inmate advise them of a complete inability, either mental or physical, to prepare a habeas application on his own behalf,” but there is no contention that they have in fact ever done so.

This is obviously far short of the showing required to demonstrate that, in depriving prisoners of the assistance of fellow inmates, Tennessee has not, in substance, deprived those unable themselves, with reasonable adequacy, to prepare their petitions, of access to the constitutionally and statutorily protected availability of the writ of habeas corpus. By contrast, in several States, the public defender system supplies trained attorneys, paid from public funds, who are available to consult with prisoners regarding their habeas corpus petitions. At least one State employs senior law students to interview and advise inmates in state prisons. Another State has a voluntary program whereby members of the local bar association make periodic visits to the prison to consult with prisoners concerning their cases. We express no judgment concerning these plans, but their existence indicates that techniques are available to provide alternatives if the State elects to prohibit mutual assistance among inmates.

Even in the absence of such alternatives, the State may impose reasonable restrictions and restraints upon the acknowledged propensity of prisoners to abuse both the giving and the seeking of assistance in the preparation of applications for relief: for example, by limitations on the time and location of such activities and the imposition of punishment for the giving or receipt of consideration in connection with such activities. Cf. Hatfield v. Bailleaux, 290 F. 2d 632 (C. A. 9th Cir. 1961) (sustaining as reasonable regulations on the time and location of prisoner work on their own petitions). But unless and until the State provides some reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief, it may not validly enforce a regulation such as that here in issue, barring inmates from furnishing such assistance to other prisoners.

The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

Mr. Justice Douglas,

concurring.

While I join the opinion of the Court, I add a few words in emphasis of the important thesis of the case.

The increasing complexities of our governmental apparatus at both the local and the federal levels have made it difficult for a person to process a claim or even to make a complaint. Social security is a virtual maze; the hierarchy that governs urban housing is often so intricate that it takes an expert to know what agency has jurisdiction over a particular complaint; the office to call or official to see for noise abatement, for a broken sewer line, or a fallen tree is a mystery to many in our metropolitan areas.

A person who has a claim assertable in faraway Washington, D. C., is even more helpless, as evidenced by the increasing tendency of constituents to rely on their congressional delegation to identify, press, and process their claims.

We think of claims as grist for the mill of the lawyers. But it is becoming abundantly clear that more and more of the effort in ferreting out the basis of claims and the agencies responsible for them and in preparing the almost endless paperwork for their prosecution is work for laymen. There are not enough lawyers to manage or supervise all of these affairs; and much of the basic work done requires no special legal talent. Yet there is a closed-shop philosophy in the legal profession that cuts down drastically active roles for laymen. It was expressed by a New York court in denying an application from the Neighborhood Legal Services for permission to offer a broad legal-aid type of service to indigents:

“[I]n any legal assistance corporation, supported by Federal antipoverty funds, the executive staff, and those with the responsibility to hire and discharge staff from the very top to the lowest lay echelon must be lawyers.” Matter of Action for Legal Services, 26 App. Div. 2d 354, 360, 274 N. Y. S. 2d 779, 787 (1966).

That traditional, closed-shop attitude is utterly out of place in the modern world where claims pile high and much of the work of tracing and pursuing them requires the patience and wisdom of a layman rather than the legal skills of a member of the bar.

“If poverty lawyers are overworked, some of the work can be delegated to sub-professionals. New York law permits senior law students to practice law under certain supervised conditions. Approval must first be granted by the appellate division. A rung or two lower on the legal profession’s ladder are laymen legal technicians, comparable to nurses and lab assistants in the medical profession. Large law firms employ them, and there seems to be no reason why they cannot be used in legal services programs to relieve attorneys for more professional tasks.” Samore, Legal Services for the Poor, 32 Albany L. Rev. 509, 515-516 (1968).

And see Sparer, Thorkelson, & Weiss, The Lay Advocate, 43 ü. Det. L. J. 493, 510-514 (1966).

The plight of a man in prison may in these respects be even more acute than the plight of a person on the outside. He may need collateral proceedings to test the legality of his detention or relief against management of the parole system or against defective detainers lodged against him which create burdens in the nature of his incarcerated status. He may have grievances of a civil nature against those outside the prison. His imprisonment may give his wife grounds for divorce and be a factor in determining the custody of his children; and he may have pressing social security, workmen’s compensation, or veterans’ claims.

While the demand for legal counsel in prison is heavy, the supply is light. For private matters of a civil nature, legal counsel for the indigent in prison is almost nonexistent. Even for criminal proceedings, it is sparse. While a few States have post-conviction statutes providing such counsel, most States do not. Some States like California do appoint counsel to represent the indigent prisoner in his collateral hearings, once he succeeds in making out a prima facie case. But as a result, counsel is not on hand for preparation of the papers or for the initial decision that the prisoner’s claim has substance.

Many think that the prisoner needs help at an early stage to weed out frivolous claims. Some States have Legal Aid Societies, sponsored in part by the National Legal Aid and Defender Association, that provide post-conviction counsel to prisoners. Most legal aid offices, however, have so many pressing obligations of a civil and criminal nature in their own communities and among freemen, as not to be able to provide any satisfactory assistance to prisoners. The same thing is true of OEO-sponsored Neighborhood Legal Services offices, which see their function as providing legal counsel for a particular community, which a member leaves as soon as he is taken to prison. In some cases, state public defenders will represent a man even after he passes beyond prison walls. But more often, the public defender has no general authorization to process post-conviction matters.

Some States have experimented with programs- designed especially for the prison community. The Bureau of Prisons led the way with a program of allowing senior law students to service the federal penitentiary at Leavenworth, Kansas. Since then, it has encouraged similar programs at Lewisburg (University of Pennsylvania Law School) and elsewhere. Emory University School of Law provides free legal assistance to the inmates of Atlanta Federal Penitentiary. The program of the law school at the University of California at Los Angeles is now about to reach inside federal prisons. In describing the University of Kansas Law School program at Leavenworth, legal counsel for the Bureau of Prisons has said:

“The experience at Leavenworth has shown that there have been very few attacks upon the [prison] administration; that prospective frivolous litigation has been screened out and that where the law school felt the prisoner had a good cause of action relief was granted in a great percentage of cases. A large part of the activity was disposing of long outstanding detainers lodged against the inmates. In addition, the program handles civil matters such as domestic relations problems and compensation claims. Even where there has been no tangible success, the fact that the inmate had someone on the outside listen to him and analyze his problems had a most beneficial effect. . . . We think that these programs have been beneficial not only to the inmates but to the students, the staff and the courts.”

The difficulty with an ad hoc program resting on a shifting law school population is that, worthy though it be, it often cannot meet the daily prison demands. In desperation, at least one State has allowed a selected inmate to act as “jailhouse” counsel for the remaining inmates. The service of legal aid, public defenders, and assigned counsel has been spread too thinly to serve prisons adequately. Some federal courts have begun to provide prisons with standardized habeas corpus forms, in the hope that they can be used by laymen. But the prison population has not found that satisfactory.

Where government fails to provide the prison with the legal counsel it demands, the prison generates its own. In a community where illiteracy and mental deficiency is notoriously high, it is not enough to ask the prisoner to be - his own lawyer. Without the assistance of fellow prisoners, some meritorious claims would never see the light of a courtroom. In cases where that assistance succeeds, it speaks for itself. And even in cases where it fails, it may provide a necessary medium of expression:

“It is not unusual, then, in a subculture created by the criminal law, wherein prisoners exist as creatures of the law, that they should use the law to try to reclaim their previously enjoyed status in society. The upheavals occurring in the American social structure are reflected within the prison environment. Prisoners, having real or imagined grievances, cannot demonstrate in protest against them. The right peaceably to assemble is denied to them. The only avenue open to prisoners is taking their case to court. Prison writ-writers would compare themselves to the dissenters outside prison ....
“Many writ-writers have said that they would be able to make positive plans for the future if they knew when their [indeterminate] sentences would end. They seem to feel that they are living in a vacuum where their fates are determined arbitrarily rather than by rule of law. One writ-writer very aptly summed up the majority’s view with these words: ‘When I arrived at the prison and discovered that no one, including the prison officials, knew how long my sentence was, I had to resort to fighting my case to keep my sanity.’. . . Psychologically, the writ-writer, in seeking relief from the courts, is pursuing a course of action which relieves the tensions and anxieties created by the [indeterminate] sentence system.”

In that view, which many share, the preparation of these endless petitions within the prisons is a useful form of therapy. Apart from that, their preparation must never be considered the exclusive prerogative of the lawyer. Laymen — in and out of prison — should be allowed to act as “next friend” to any person in the preparation of any paper or document or claim, so long as he does not hold himself out as practicing law or as being a member of the Bar.

The cooperation and help of laymen, as well as of lawyers, is necessary if the right of “[Reasonable access to the courts” is to be available to the indigents among us.

Mr. Justice White,

with whom Mr. Justice Black joins,

dissenting.

It is true, as the majority says, that habeas corpus is the Great Writ, and that access through it to the courts cannot be denied simply because a man is indigent or illiterate. It is also true that the illiterate or poorly educated and inexperienced indigent cannot adequately help himself and that unless he secures aid from some, other source he is effectively denied the opportunity to present to the courts what may be valid claims for post-conviction relief.

Having in mind these matters, which seem too clear for argument, the Court rules that unless the State provides a reasonably adequate alternative, it may not enforce its rule against inmates furnishing help to others in preparing post-conviction petitions. The Court does not say so in so many words, but apparently the extent of the State’s duty is not to interfere with indigents seeking advice from other prisoners. It seems to me, however, that unless the help the indigent gets from other inmates is reasonably adequate for the task, he will be as surely and effectively barred from the courts as if he were accorded no help at all. It may be that those who could help effectively refuse to do so because the indigent cannot pay, that there is actually no fellow inmate who is competent to help, or that the realities of prison life leave the indigent to the mercies of those who should not be advising others at all. In this event the problem of the incompetent needing help is only exacerbated as is the difficulty of the courts in dealing with a mounting flow of inadequate and misconceived petitions.

The majority admits that it “is indisputable” that jailhouse lawyers like petitioner “are sometimes a menace to prison discipline and that their petitions are often so unskillful as to be a burden on the courts which receive them.” That is putting it mildly. The disciplinary problems are severe, the burden on the courts serious, and the disadvantages to prisoner clients of the jailhouse lawyer are unacceptable.

Although some jailhouse lawyers are no doubt véry capable, it is not necessarily the best amateur legal minds which are devoted to jailhouse lawyering. Rather, the most aggressive and domineering personalities may predominate. And it may not be those with the best claims to relief who are served as clients, but those who are weaker and more gullible. Many assert that the aim of the jailhouse lawyer is not the service of truth and justice, but rather self-aggrandizement, profit, and power. According to prison officials, whose expertise in such matters should be given some consideration, the jailhouse lawyer often succeeds in establishing his own power structure, quite apart from the formal system of warden, guards, and trusties which the prison seeks to maintain. Those whom the jailhouse lawyer serves may come morally under his sway as the one hope of their release, and repay him not only with obedience but with what minor gifts and other favors are available to them. When a client refuses to pay, violence may result, in which the jailhouse lawyer may be aided by his other clients.

It cannot be expected that the petitions which emerge from such a process will be of the highest quality. Codes of ethics, champerty, and maintenance, frequently have little meaning to the jailhouse lawyer, who solicits business as vigorously as he can. In the petition itself, outright lies may serve the jailhouse lawyer’s purpose since by procuring for a prisoner client a short trip out of jail for a hearing on his contentions the petition writer’s credibility with the other convicts is improved.

Habeas corpus petitions, as the majority notes, are relatively easy to prepare: they need only set out the facts giving rise to a claim for relief and the judge will apply the law, appointing a lawyer for the prisoner and giving him a hearing when appropriate. This fact does not buttress the unregulated jailhouse lawyer system, but undermines it. To the extent that it is easy to state a claim, any prisoner can do it, and need not submit to the mercies of a jailhouse lawyer. To the extent that it is difficult— and it is necessary to understand what one's rights are before it is possible to set out in a petition the facts which support them — there may be no fellow prisoner adequate to the task. There are some well informed and articulate prisoners and some (not necessarily the same) who give advice and aid out of altruism. When the two qualities are combined in one man, as they sometimes are, he can be a perfectly adequate source of help. But the jails are not characteristically populated with the intelligent or the benign, and capable altruists must be rare indeed. On the other hand, some jailhouse clients are illiterate; and whether illiterate or not, there are others who are unable to prepare their own petitions. They need help, but I doubt that the problem of the indigent convict will be solved by subjecting him to the false hopes, dominance, and inept representation of the average unsupervised jailhouse lawyer.

I cannot say, therefore, that petitioner Johnson, who is a convicted rapist serving a life sentence and whose prison conduct the State has wide discretion in regulating, cannot be disciplined for violating a prison rule against aiding other prisoners in seeking post-conviction relief, particularly when there is no showing that any prisoner in the Tennessee State Penitentiary has been denied access to the courts, that Johnson has confined his services to those who need it, or that Johnson is himself competent to give the advice which he offers. No prisoner testified that Johnson was the only person available who would write out a writ for him or that guards or other prison functionaries would not furnish the necessary help. And it is really the prisoner client’s rights, not the jailhouse lawyer’s, which are most in need of protection.

If the problem of the indigent and ignorant convict in seeking post-conviction relief is substantial, which I think it is, the better course is not in effect to sanction •and encourage spontaneous jailhouse lawyer systems but to decide the matter directly in the case of a man who himself needs help and in that case to rule that the State must provide access to the courts by ensuring that those who cannot help themselves have reasonably adequate assistance in preparing their post-conviction papers. Ideally, perhaps professional help should be furnished and prisoners encouraged to seek it so that any possible claims receive early and complete examination. But I am inclined to agree with Me. Justice Douglas that it is neither practical nor necessary to require the help of lawyers. As the opinions in this case indicate, the alternatives are various and the burden on the States would not be impossible to discharge. This requirement might even be met by the establishment of a system of regulated trusties of the prison who would advise prisoners of their legal rights. Selection of the jailhouse lawyers by the prison officials for scholarship and character might assure that the inmate client received advice which would actually help him, and regulation of the “practice” by the authorities would reduce the likelihood of coerced fees or blackmail. The same legislative judgment which should be sustained in concluding that the evils of jailhouse lawyering justify its proscription might also support a legislative conclusion that jailhouse law-yering under carefully controlled conditions satisfies the prisoner’s constitutional right to help.

Regretfully, therefore, I dissent.

       28 U. S. C. §2242 provides in part: “Application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf.”

        E. g., Fay v. Noia, 372 U. S. 391 (1963).

       28 U. S. C. §§ 2241-2255.

       See Note, Constitutional Law: Prison “No-Assistance” Regulations and the Jailhouse Lawyer, 1968 Duke L. J. 343, 347-348, 360-361.

       Tennessee Department of Correction, Departmental Report: Fiscal Years 1965-1966, 1966-1967.

       Tennessee’s post-conviction procedure provides for appointment of counsel “if necessary.” Tenn. Code Ann. §§40-3821, 40-2019 (Supp. 1967).

       See, e. g., Speetor, A Prison Librarian Looks at Writ-Writing, 56 Calif. L. Rev. 365 (1968).

       Note, supra, n. 4, at 349, n. 27, and 359. See also Rossmoore & Koenigsberg, Habeas Corpus and the Indigent Prisoner, 11 Rutgers L. Rev. 611, 619-622 (1957).

       At the time of the second hearing in petitioner’s case, the warden testified, the State was considering setting up a program under which senior law students from Vanderbilt Law School would assist prisoners in the preparation of post-conviction relief applications. For whatever it may be worth, petitioner testified that he would stop helping other inmates if such a system were in existence.

       One State has designated an inmate as the oficial prison writ-writer. See Note, supra, n. 4, at 359.

       In reversing the District Court, the Court of Appeals relied on the power of the State to restrict the practice of law to licensed attorneys as a source of authority for the prison regulation. The power of the States to control the practice of law cannot be exercised so as to abrogate federally protected rights. NAACP v. Button, 371 U. S. 415 (1963); Sperry v. Florida, 373 U. S. 379 (1963). In any event, the type of activity involved here — preparation of petitions for post-conviction relief — though historically and traditionally one which may benefit from the sendees of a trained and dedicated lawyer, is a function often, perhaps generally, performed by laymen. Title 28 U. S. C. § 2242 apparently contemplates that in many situations petitions for federal habeas corpus relief will be prepared by laymen.

       The New York program that is funded by the Office of Economic Opportunity (OEO) and which as noted was first rejected by the New York courts, is called Community Action for Legal Services. It was finally approved by the New York courts with a board of directors of 20 lawyers and 10 laymen. 158 N. Y. L. J. No. 72, pp. 1, 5 (1967).

       Reitz, Federal Habeas Corpus: Postconviction Remedy for State Prisoners, 108 U. Pa. L. Rev. 461 (1960).

       Hubanks & Linde, Legal Services to the Indigent Imprisoned, 23 Legal Aid Briefcase 214 (1965).

       Temin, Report on Postconviction Services to the County Prison, 25 Legal Aid Briefcase 18 (1966).

       Note, Constitutional Law: Prison “No-Assistance” Regulations and the Jailhouse Lawyer, 1968 Duke L. J. 343.

       L. Silverstein, Defense of the Poor in Criminal Cases in American State Courts: A Preliminary Summary (Amer. Bar Foundation 1964); Note, Legal Services for the Poor, 49 Mass. L. Q. 293 (1964) ; O. E. 0. and Legal Services — A Symposium, 14 Catholic Law. 92-174 (1968); Note, Legal Services for Prison Inmates, 1967 Wis. L. Rev. 514; Uelmen, Post-Conviction Relief for Federal Prisoners Under 28 U. S. C. §2255: A Survey and a Suggestion, 69 W. Va. L. Rev. 277 (1967).

       IF. Rev. Stat., c. 38, § 122-4 (1967); Ore. Rev. Stat. § 138.590 (1967).

       Comment, Right to Counsel in Criminal Post-Conviction Review Proceedings, 51 Calif. L. Rev. 970 (1963).

       See, e. g,, People v. Shipman, 62 Cal. 2d 226, 397 P. 2d 993 (1965). Note, Indigent’s Right to Counsel in Post-Conviction Collateral Proceedings in California: People v. Shipman, 13 U. C. L. A. L. Rev. 446 (1966).

       “Lawyers generally require at least a fifty dollar fee to travel to the prisons to consult with a prisoner. The ones not able to pay this sum must resort to the next best course of action — act as their own lawyers. The disadvantages to the prisoner are obvious. A lawyer, after examining the prisoner’s transcripts or conducting an independent investigation of the facts, could immediately advise him on a course of action. Lacking the money to hire a lawyer, the prisoner must spend considerable time researching the law, preparing the required legal documents, and filing them. Sometimes years pass before the prisoner discovers what a lawyer could have told him in several weeks — that his case either has or lacks merit. The prisoners who have militantly prosecuted frivolous actions have wasted time they could have devoted to preparing themselves for release from prison. The state, by shouldering these indigent prisoners with the responsibility of acting as their own counsel, has dissipated the taxpayers’ money in wasted manpower and court costs.” Larsen, A Prisoner Looks at Writ-Writing, 56 Calif. L. Rev. 343, 345-346 (1968).

       Note, Legal Services for the Poor, 49 Mass. L. Q. 293 (1964).

       Note, Representation of Indigent Criminal Defendants in the Federal District Courts, 76 Harv. L. Rev. 579 (1963); Note, Representation of Indigents in California — A Field Study of the Public Defender and Assigned Counsel Systems, 13 Stan. L. Rev. 522 (1961); Gardiner, Defects in Present Legal Aid Service and the Remedies, 22 Tenn. L. Rev. 505 (1952); Note, Prisoner Assistance on Federal Habeas Corpus Petitions, 19 Stan. L. Rev. 887 (1967).

       O. E. 0. and Legal Services — A Symposium, 14 Catholic Law. 92-174 (1968).

       E. Mancuso, The Public Defender System in the State of California 5 (1.959).

         Barkin, Impact of Changing Law Upon Prison Policy, 47 Prison J. 3, 8 (1969). And see Matter of Cornell Legal Aid Clinic, 26 App. Div. 2d 790, 273 N. Y. S. 2d 444.

       Wilson, Legal Assistance Project at Leavenworth, 24 Legal Aid Briefcase 254 (1966).

       Note, supra, n. 5, at 359.

       Note, Representation of Indigent Criminal Defendants in the Federal District Courts, 76 Harv. L. Rev. 579 (1963); Note, Representation of Indigents in California — A Field Study of the Public Defender and Assigned Counsel Systems, 13 Stan. L. Rev. 522 (1961).

       R. Sokol, A Handbook of Federal Habeas Corpus 53-54, 192-200 (1965).

       Larsen, A Prisoner Looks at Writ-Writing, 56 Calif. L. Rev. 343, 353 (1968).

       Note, supra, n. 5, at 348-349.

       Freund, Remarks, Symposium, Habeas Corpus — Proposals for Reform, 9 Utah L. Rev. 18, 30 (1964).

       Larsen, A Prisoner Looks at Writ-Writing, 56 Calif. L. Rev. 343, 347-348 (1968).

       “Reasonable access to the courts is ... a right [secured by the Constitution and laws of the United States], being guaranteed as against state action by the due process clause of the fourteenth amendment. In so far as access by state prisoners to federal courts is concerned, this right was recognized in Ex parte Hull, 312 U. S. 546, 549. . . . The right of access by state prisoners to state courts was recognized in White v. Ragen, 324 U. S. 760, 762, n. [1].” Hatfield v. Bailleaux, 290 F. 2d 632, 636 (C. A. 9th Cir. 1961).

       Krause, A Lawyer Looks at Writ-Writing, 56 Calif. L. Rev. 371 (1968); Spector, A Prison Librarian Looks at Writ-Writing, 56 Calif. L. Rev. 365 (1968); Note, Constitutional Law: Prison “No-Assistance” Regulations and the Jailhouse Lawyer, 1968 Duke L. J. 343, 345-347; Note, Legal Services for Prison Inmates, 1967 Wis. L. Rev. 514, 520-522; Note, Prisoner Assistance on Federal Habeas Corpus Petitions, 19 Stan. L. Rev. 887, 891, n. 31 (1967).


source: Caselaw Access Project

author: Mr. Justice Fortas Me. Justice Stewart, Me. Justice White, Mb. Justice Black, Mr. Justice Harlan,

license: Public Domain

text:
    TINKER et al. v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT et al.
    No. 21.
    Argued November 12, 1968.
    Decided February 24, 1969.

      Dan L. Johnston argued the cause for petitioners. With him on the brief were Melvin L. Wulfand 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.
   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 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 ease 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).

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).

I.

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” 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. See also Pierce v. Society of Sisters, 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.

II.

The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, 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 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.

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. 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.)

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 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 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 thé 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. This is not only an inevitable part of the process of attending school; it is also an important part of the educational process. A student’s rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without “materially and substantially interfering] 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. Ham mond 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.

Me. 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 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.

Me. 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.

Mb. 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. The Court brought 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 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.” 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.

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 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 “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. Neither Thornhill v. Alabama, 310 U. S. 88; Stromberg v. California, 283 U. S. 359; Edwards 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.

“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.”

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 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 McReyn-olds 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 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” 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 wdth 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 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 systems 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.

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, east 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.

       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.

         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).

       The only suggestions ol; 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.”

       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.

       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.”

       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).

       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.”

       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.
      “ T 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.”

       In Cantwell v. Connecticut, 310 U. S. 296, 303-304 (1940), this Court said:

       Statistical Abstract of the United States (1968), Table No. 578, p. 406.


author: Per Curiam.

text:
    SERBIAN ORTHODOX CHURCH CONGREGATION OF ST. DEMETRIUS OF AKRON v. KELEMEN et al.
    No. 91.
    Decided February 24, 1969.

      Bernard R. Roetzel and Bernard J. Roetzel for petitioner.

      Frederick H. Gillen and Don R. Miller for respondents.
   Per Curiam.

The petition for a writ of certiorari is granted, judgment is vacated, and the case is remanded to the Supreme Court of Ohio for further consideration in light of Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, ante, p. 440.


text:
    CORDREY v. CORDREY.
    No. 859.
    Decided February 24, 1969.

      Robert Scott Kaufman for appellant.

      William H. Allen and John E. Vanderstar for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    MARYLAND & VIRGINIA ELDERSHIP OF THE CHURCHES OF GOD et al. v. CHURCH OF GOD AT SHARPSBURG, INC., et al.
    No. 357.
    Decided February 24, 1969.

      James H. Booser, Alfred, L. Scanlan, and Martin J. Flynn for appellants.

      Leo Pfeffer for the General Eldership of the Churches of God in North America, as amicus curiae, in support of appellants.
   Per Curiam.

The judgment is vacated and the case is remanded to the Court of Appeals of Maryland for further consideration in light of Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, ante, p. 440.


text:
    BECKER v. VIRGINIA.
    No. 431.
    Decided February 24, 1969.

      Garland M. Layton for appellant.

      Andre Evans and Joseph L. Lyle, Jr., for appellee.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    MORGAN et al. v. BOARD OF FORESTRY OF OREGON et al.
    No. 632.
    Decided February 24, 1969.

      Ervin W. Potter for appellants.

      Robert Y. Thornton, Attorney General of Oregon, and Thomas C. Stacer, Assistant Attorney General, for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    FORAN v. WEINHOFF et al.
    No. 870.
    Decided February 24, 1969.

      Solicitor General Griswold, Assistant Attorney General Weisl, Morton Hollander, and Robert V. Zener for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted.


text:
    BAKER NATIONAL BANK v. HENDERSON, ADMINISTRATRIX.
    No. 883.
    Decided February 24, 1969.

      Thomas E. Towe for appellant.
   Per Curiam.

The appeal is dismissed for want of a substantial federal question.

Mr. Justice Douglas, Mr. Justice Harlan, and Mr. Justice White are of the opinion that probable jurisdiction should be noted and the case set for oral argument.


text:
    ACCIDENT INDEX BUREAU, INC., et al. v. MALE, COMMISSIONER, DEPARTMENT OF LABOR & INDUSTRY, et al.
    No. 889.
    Decided February 24, 1969.

      Edioard B. Meredith for appellants.
   Per Curiam.

The appeal is dismissed for want of a substantial federal question.


text:
    KOHLER et al. v. TUGWELL, TREASURER OF LOUISIANA, et al.
    No. 933.
    Decided February 24, 1969.

      Donald V. Organ for appellants.

      Dorothy Wolbrette and William P. Curry, Assistant Attorneys General of Louisiana, for appellees.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.


text:
    MEEKS v. FLOURNEY, SHERIFF, et al.
    No. 81,
    Misc.
    Decided February 24, 1969.

      Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, A. J. Ca-rubbi, Jr., Executive Assistant Attorney General, and Robert C. Flowers, Lonny F. Zwiener, and Gilbert J. Pena, Assistant Attorneys General, for respondents.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of Texas for further consideration in light of Smith v. Hooey, ante, p. 374.


text:
    McCRORY v. MISSISSIPPI.
    No. 153,
    Misc.
    Decided February 24, 1969.

      W. S. Moore for petitioner.

      Joe T. Patterson, Attorney General of Mississippi, and G. Garland by ell, Jr., Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of Mississippi for further consideration in light of Smith v. Hooey, ante, p. 374.


text:
    BUSH v. UNITED STATES.
    No. 857,
    Mise.
    Decided February 24, 1969.

      Solicitor General Griswold, Assistant Attorney General Vinson, and Jerome M. Feit for the United States.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed.


text:
    DUNCAN v. INDIANA.
    No. 110,
    Misc.
    Decided February 24, 1969.

      John J. Dillon, Attorney General of Indiana, and Richard V. Bennett, Deputy Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of Indiana for further consideration in light of Smith v. Hooey, ante, p. 374.


text:
    TRIPLETT v. FLOYD CIRCUIT COURT et al.
    No. 57,
    Misc.
    Decided February 24, 1969.

      John J. Dillon, Attorney General of Indiana, and Richard V. Bennett, Deputy Attorney General, for respondents.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of Indiana for further consideration in light of Smith v. Hooey, ante, p. 374.


text:
    SERTA ASSOCIATES, INC. v. UNITED STATES.
    No. 878.
    Decided February 24, 1969.

      Sigmund Timberg, Lionel G. Gross, and David V. Kahn for appellant.

      Solicitor General Griswold, Acting Assistant Attorney General Hammond, and William R. Weissman for the United States.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.

Mr. Justice Harlan and Mr. Justice Stewart are of the opinion that probable jurisdiction should be noted and the case set for oral argument.

Mr. Justice White took no part in the consideration or decision of this case.


text:
    NATIONAL INDUSTRIAL TRAFFIC LEAGUE et al. v. UNITED STATES et al.
    No. 898.
    Decided February 24, 1969.

      John F. Donelan, John M. Cleary, Arthur A. Arsham, and John J. C. Martin for appellants.

      Solicitor General Griswold, Acting Assistant Attorney General Hammond, Hovoard E. Shapiro, Robert W. Gin-nane, and Raymond M. Zimmet for the United States et al., LeGrand A. Carlston, Z. L. Pearson, Jr., and Bryce Rea, Jr., for Rocky Mountain Motor Tariff Bureau, Inc., and Mr. Rea for Pacific Inland Tariff Bureau, Inc., appellees.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    NEW YORK CENTRAL RAILROAD CO. et al. v. LEFKOWITZ, ATTORNEY GENERAL OF NEW YORK, et al.
    No. 914.
    Decided February 24, 1969.

      John A. Wells, Gerald E. Dwyer, and Victor F. Con-dello for appellants.

      Louis J. Lefkowitz, Attorney General of New York, pro se, Ruth Kessler Toch, Solicitor General, and Joseph A. Romano, Assistant Attorney General, for ap-pellee Lefkowitz, and Thomas A. Shaw, Jr., and Harold C. Heiss for appellees Brotherhood of Locomotive Firemen & Enginemen et al.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed.