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January 13, 1972

Rev. Donald R. GEBERT et al.
Alan R. HOFFMAN et al.

Joseph S. Lord, III, Chief Judge.

The opinion of the court was delivered by: LORD, III

JOSEPH S. LORD, III, Chief Judge.

 Plaintiffs filed this class action suit on December 17, 1970. In that complaint it was alleged, generally, that on December 14 and 15 various students who attend Abington High School engaged in sit-in demonstrations during and after school hours. It was further alleged that the defendant members of the Board of School Directors responded to these sit-ins by (1) obtaining a preliminary injunction, issued ex parte on December 14 in the Court of Common Pleas of Montgomery County, restraining such behavior, (2) suspending approximately thirty-six students from school, and (3) enforcing the suspensions. Plaintiffs contended that all the above activity violated rights granted by the First, Fifth and Fourteenth Amendments of the United States Constitution and by 42 U.S.C. § 1983. Jurisdiction is founded upon 28 U.S.C. § 1343(3).

 On December 18, 1970, we entered a temporary restraining order which enjoined the defendants from continuing to prosecute the state court action and from continuing the suspensions in force. An evidentiary hearing was held in this matter on February 1-3, 1971. On June 7, 1971, we vacated the restraining order insofar as it prohibited further prosecution of the state court action. At the same time we retained jurisdiction over the claims relating to student suspensions. Gebert et al. v. Hoffman et al., 328 F. Supp. 574 (E.D. Pa., 1971).

 On December 15, 1970, the plaintiffs were cleared from Abington High School pursuant to a state court preliminary injunction. At this time they were also informed that they were suspended from school. Later that day, letters sent to the parents of the suspended students stated that the students had been suspended "for participating in a sit-in at South Campus, an activity disruptive to the normal operation of the school." The school principal testified that the basis for the suspensions was rule 14 of the 1970-71 Abington Handbook which provides that "[any] other serious breach of proper conduct" is a ground for suspension. N.T. 298-301.

 In the afternoon of December 15th, Gay Jewell and Robin Mack, students at Abington High School, were arrested by a Deputy Sheriff of Abington Township while they were on school property. Testimony indicated that the sheriff made the arrest after consulting a list of students who were not allowed in school. The girls were taken to the police station, questioned, and then released. No charges were lodged against either girl.

 Plaintiffs contend that their sit-in activity was protected by the First Amendment or, alternatively, if that activity was not constitutionally protected, that they were not put on notice by the school disciplinary rules that it was impermissible. It is prayed that we therefore enjoin defendants from "continuing to effectuate the school suspensions" and from "engaging in any other conduct, including state court proceedings, by which the constitutional rights of plaintiffs are abridged."

 We read the complaint as asking for the following relief. Plaintiffs' request to enjoin defendants from "continuing to effectuate the school suspensions" of December 15, 1970 seeks to prevent the reinstatement of the temporary suspensions and the use of the records of the suspension. Plaintiffs' request to enjoin the defendants from engaging in any other conduct which abridges the constitutional rights of the students seeks to enjoin future temporary suspensions for sit-ins and the use of the police or resort to state court proceedings against students for engaging in constitutionally protected activities.

 We are therefore left with the request to enjoin future temporary suspensions and the use of records. In order to determine whether to grant plaintiffs' request for relief, we must determine whether defendants' actions in suspending the students on December 15 was in violation of their constitutional rights.

 Plaintiffs contend that the sit-in was protected activity under the First and Fourteenth Amendments, and therefore the action of the school administrators in suspending the students for such activity constituted a legally cognizable wrong under 42 U.S.C. § 1983 for which injunctive relief is appropriate. The Supreme Court has stated that:

"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." Tinker v. Des Moines Community School District, 393 U.S. 503, 506, 89 S. Ct. 733, 736, 21 L. Ed. 2d 731 (1969).

 However, even outside the school environment, the Court has held that where speech is mixed with conduct, as in the case of a sit-in, the state may reasonably regulate the time, place and manner of such activity in order to prevent serious interference with the normal usage of the facility or area in which the demonstration is to take place. Cox v. Louisiana, 379 U.S. 536, 554-557, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965); Cox v. Louisiana, 379 U.S. 559, 563, 85 S. Ct. 476, 13 L. Ed. 2d 487 (1965); Shuttlesworth v. Birmingham, 394 U.S. 147, 152-155, 89 S. Ct. 935, 22 L. Ed. 2d 162 (1969); Kunz v. New York, 340 U.S. 290, 293-295, 71 S. Ct. 312, 95 L. Ed. 280 (1951).

 In a school case involving conduct "akin to pure speech," the Supreme Court has defined the limits of permissible regulation of First ...

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