Hennessey v. Independent School District No. 4, Lincoln County

LAVENDER, Justice

(concurring specially) :

The majority opinion found no evidence in the record showing the appellants, as a PTA, would violate the board’s rules, if allowed use of the school facilities. In addition, that opinion found the present board rules to be unconstitutional. I agree. I concur in that result.

This special concurrence would emphasize the board’s constitutional control of the use of school facilities by non-scholastic groups “under such regulations and conditions as it may prescribe.” § 5-130, supra.

Broad constitutional principles found in the cited authorities of the majority opinion should not be mistakenly taken as destructive of all board control.

In Co-v, supra, a conviction of a civil rights leader for breach of the peace and obstructing public passages was held unconstitutional as abridging freedom of speech and assembly. The ordinance allowed no parades, yet the city authorities permitted or prohibited them in their completely uncontrolled discretion. After citing twelve of its cases, the United States Supreme Court said:

“From these decisions certain clear principles emerge. The rights of free, speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. (Emphasis added.)

Grayned, supra, sets out the constitutional principle of “Free Expression.” It then held an anti-noise ordinance, “in light of these general principles,” not to be an unconstitutional regulation around a school.

A violation of freedom of the press was found in Joyner (4th Cir.), supra. There a predominantly black state university’s president withdrew financial support from the official student newspaper, which had segregationist editorial policy.

Denial of use of a school auditorium to an unpopular political group was unconstitutional in National Socialist White People’s Party (4th Cir.), supra. This turned on the record not supporting a claimed fear of violence or damage to property, and that permission to use was no acceptance of the users’ beliefs. There, groups which had rented the facilities included the Democratic party and the Republican party.

The 1919 case of Schenck v. United States, supra, upheld a conviction under the Espionage Act. An attack was made on the act as an infringement of free speech and press. It was held constitutional.

Regulation of guest speakers on the campus of an institution of higher learning was struck down in Stacy (N.D.Miss.), supra. A non-exclusionary attitude must be applied non-discriminatorily. “The interest of both students and Board can, and must, yield to harmonious accommodation under the Constitution.”

Judge Eubanks in Atewooftakewa (W. D.Okl.), supra, held the disapproval of an Indian will by the Secretary of the Interi- or to be an abuse of discretion. Approval was denied for the decedent had failed to make provision for a daughter born out of wedlock.

This court in Winters, supra, confined a statutory investigative governor’s committee to the outer limits of its legal authority-

Dunkel (D.Md.) supra, refused to strike down a statute on the ground it would not be construed and applied constitutionally. The statute permitted exclusion from state campuses outsiders “who are acting in a manner disruptive or disturbing to the normal educational functions of the institution.” A hearing was required prior to removal though not provided in the statute.

East Meadow Community Concerts Association (N.Y.), supra, struck down the barring of the use of a school auditorium to a “highly controversial” folk singer, Seeger. The plaintiff association, itself, had heretofore held concerts in the facility. It was this particular program that was barred.

American Civil Liberties Union of Virginia, Inc. v. Radford College (W.D.Va.), supra, is another campus speaker controversy. In discussing cases involving constitutional challenges to actions of college administrators, the opinion says: “A perusal of these cases makes clear a recurring theme that once a public school makes an activity available to its students, faculty, or even the general public, it must operate the activity in accord with first amendment principles.” (Emphasis added.) There the activity made available was that of guest speakers.

Reasonable classifications in determining availability of school facilities is constitutionally permitted. Ellis v. Dixon, supra. Here, this would be within the framework of § 5-130, i. e. youth organizations, civic clubs, religious organizations, political organizations, sports boosters, and education or school boosters. Use of the school facilities for one type of organization or classification, such as Boy Scouts, does not constitutionally require the availability of that facility to a different type or class of organization, such as the Democratic or Republican party.

There is need for balance between broad constitutional .principles and the statutory discretionary authority to allow outside organizations to use school facilities under regulations and conditions prescribed by the board. This balance and harmonious accommodation comes through reasonable classifications in determining the extent to which school facilities shall be available for non-scholastic uses.

As suggested in Ellis, supra, reasonable classification is implicit in the right to withhold its school facilities altogether. Having allowed one statutorily authorized use, the board is not necessarily and constitutionally required to open its school facilities to all statutorily authorized use. To argue otherwise would deny the board, by rules and regulations, to make reasonable classifications as to non-scholastic users.

I am authorized to state that Justice DAVISON concurs in the views herein expressed.