HINZE v. TAMALPAIS UNION HIGH SCHOOL DISTRICT (1981)

Spiros Hinze, a 15-year-old high school pupil, had for several days persisted in wearing, at the high school's grounds and classrooms and against the principal's express orders, a badge, one and a half inches in diameter, proclaiming the message—“Fuck the Draft.” He was suspended by the principal for his conduct, following which he applied to the superior court for injunctive and other relief. Upon that court's “Order Denying Motion for Preliminary Injunction,” we granted Spiros an alternative writ of mandate for the purpose of inquiring into his claimed First Amendment right to wear the badge throughout each school day.

We have now considered the record and the briefs and arguments of the parties. Our conclusion, for the reasons we now state, is that Spiros is unentitled to relief.

The high school's principal had acted in reliance upon Education Code sections 48900 and 48916, and upon an administrative regulation implementing those statutes found in the California Administrative Code, title 5, section 300.

The statutes are ambiguous.

Education Code section 48900, as relevant, provides: “A pupil shall not be suspended from school … unless the principal determines that the pupil has: … (g) Committed an obscene act or engaged in habitual profanity or vulgarity; …” (Emphasis added.)

Education Code section 48916, as pertinent to the issue at hand, states: “Students of the public schools shall have the right to exercise freedom of speech … including … the wearing of buttons, badges, and other insignia, … except that expression shall be prohibited which is obscene, libelous, or slanderous.” (Emphasis added.)

High authority advises us that the message of Spiros' badge was not “obscene.” (See Cohen v. California (1971) 403 U.S. 15, 19-20, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284.)

Our initial inquiry then is whether under the statutes, a school's pupil may be suspended, in the context of the case before us, only by reason of an expression which is “obscene” (§ 48916), as contended by Spiros, or also for engaging in habitual “vulgarity” (§ 48900). The latter conduct will, of course, include obscenity, but may be of less offensiveness.

The two Education Code sections were enacted under a chapter heading entitled, “Pupil Rights and Responsibilities.” We are required, if possible, to give significance “‘to every word, phrase, sentence and part”’ of those legislative enactments. (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.) Further: “Our judicial function is to construe the words of the Legislature by their ordinary meaning, …” (Grossman v. Vaupel (1970) 13 Cal.App.3d 706, 710, 91 Cal.Rptr. 876.) Under these rules we must, and do, construe Education Code section 48900 as authorizing a school principal to suspend a pupil who has “engaged in habitual vulgarity.”

California Administrative Code, title 5, section 300, similarly construes the statutes: “Every pupil shall attend school punctually and regularly; conform to the regulations of the school; obey promptly all the directions of his teacher and others in authority; observe good order and propriety of deportment; be diligent in study; respectful to his teacher and others in authority; kind and courteous to schoolmates; and refrain entirely from the use of profane and vulgar language.” (Emphasis added.) It will be noted that the administrative regulation gives effect to section 48900's proscription of “vulgarity,” and section 48916's proscription of “obscenity,” which from its nature must also constitute “vulgarity.”

Such an administrative regulation is valid “unless it can be characterized as arbitrary, capricious or patently unreasonable.” (Sternoff v. State Bd. of Equalization (1980) 103 Cal.App.3d 828, 834, 164 Cal.Rptr. 715.) We cannot so characterize the regulation. It therefore “has the force and effect of law ․” (Dabis v. San Francisco Redevelopment Agency (1975) 50 Cal.App.3d 704, 706, 122 Cal.Rptr. 800.)

Beyond any doubt the message of Spiros' badge constituted a “vulgarity.” Many dictionaries, because of the subject word's offensiveness, decline to define it. But American Heritage Dictionary of the English Language (1969) page 531 describes it as “1. Vulgar. To have sexual intercourse with. 2. Vulgar Slang. To deal with in an aggressive, unjust, or spiteful manner. 3. Vulgar Slang. To mishandle; bungle. Usually used with up.—intr. 1. Vulgar. To engage in sexual intercourse. 2. Vulgar Slang. To meddle; interfere. Used with with. —n. 1. Vulgar. An act or instance of sexual intercourse. 2. Vulgar Slang: A partner in sexual intercourse․” And Partridge, Origins—A Short Etymological Dictionary of Modern English (2d ed. 1959), page 239, defines it as “… a … word classed, because of its associations, as a vulgarism․”

Additionally, we think it patent that the high school's principal and the superior court, from the uncontroverted evidence that Spiros had persisted in wearing the badge over a period of several days, reasonably concluded that he had “habitually” engaged in “vulgarity.”

It thus becomes manifest that Spiros' suspension was authorized by Education Code section 48900^* and its related administrative regulation.

We advert now to the critical issue before us, whether section 48900 and its attendant regulation comport with First Amendment principles.

It is held on supreme constitutional authority 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. This has been the unmistakable holding of this Court for almost 50 years.” (Tinker v. Des Moines School Dist. (1969) 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731.) But: “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.” (Idem, p. 507, 89 S.Ct. p. 737.

In the field of education it is “recognized that even where there is an invasion of protected freedoms ‘the power of the state to control the conduct of children reaches beyond the scope of its authority over adults ․”’ (Ginsberg v. New York (1968) 390 U.S. 629, 638, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195.) Thus, although university students, for First Amendment purposes, will ordinarily be treated as members of the “community at large” (Healy v. James (1972) 408 U.S. 169, 180, 92 S.Ct. 2338, 2345, 33 L.Ed.2d 266), the rule is otherwise in the case of elementary and high school pupils. “‘[T]he activities of high school students do not always fall within the same category as the conduct of college students, the former being in a much more adolescent and immature stage of life ․”’ (Baker v. Downey City Board of Education (C.D.Cal.1969) 307 F.Supp. 517, 525.) “[M]inors may … be subjected to standards of ‘obscenity’ which differ from those applied to adults. See Ginsberg v. New York, 390 U.S. 629, [88 S.Ct. 1274, 20 L.Ed.2d 195] …” (Engdahl v. City of Kenosha, Wisconsin (E.D.Wis.1970) 317 F.Supp. 1133, 1135.)

The same principle was well summarized by the Court of Appeal in Montalvo v. Madera Unified Sch. Dist. Bd. of Education (1971) 21 Cal.App.3d 323, 329-330, 98 Cal.Rptr. 593: “It is … clear that students do have rights which are protected by the federal and California state Constitutions and that they do not shed them at the schoolhouse gate․ However, it must be recognized that a student may be subject to far more stringent regulations than an adult outside a school environment due to his immaturity and status as a student in a school environment where disciplinary and health problems and considerations relating to safety of minors take on special significance. ‘… where there is an invasion of protected freedoms “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.”’ … We specifically reject appellant's contention that a student is in the same position as an adult not in a school environment. The courts have universally recognized this difference, including those situations where First Amendment rights admittedly are involved.” (And see authority there collected.)

Moreover: “First Amendment rights must always be applied ‘in light of the special characteristics of the … environment’ in the particular case.” (Healy v. James, supra, 408 U.S. 169, 180, 92 S.Ct. 2338, 2345, 33 L.Ed.2d 266.) Thus, First Amendment applications will differ between college campuses, and lower level educational institutions. (Idem, p. 180, 92 S.Ct. p. 2345.) And a greater freedom will be permitted in the public corridors of a county courthouse than on the grounds and classrooms of a public school. (See Cohen v. California, supra, 403 U.S. 15, 16, 19, 91 S.Ct. 1780, 1783, 1785, 29 L.Ed.2d 284.) “The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.” (Grayned v. City of Rockford (1972) 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222.) And neither “students, teachers, [nor] anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for his unlimited expressive purposes.” (Idem, pp. 117-118, 92 S.Ct. p. 2304.) (We observe respect by the high school authorities, the real parties in interest of these proceedings, for Spiros' legitimate right of spatially limited free speech on the school premises. In a brief in opposition to Spiros' petition they state: “[Spiros] is not being denied his right to express his opposition to the draft. Indeed, he publishes a newspaper for distribution at school. It is only the manner of expression that is being regulated—and that only on school premises.” Spiros, in his reply brief, offers no response.)

We find no merit in the contention that one's communication may, in situations such as this, be proscribed by the state only if it is obscene. In FCC v. Pacifica Foundation (1978) 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073, a radio broadcast found by the high court to be “vulgar, offensive, and shocking,” but nevertheless not obscene, was held to be without First Amendment protection. Among other things, it was because of the “composition of the audience” (p. 750, 98 S.Ct. p. 3041) in the early afternoon, “‘when children were undoubtedly in the audience ․”’ (p. 732, 98 S.Ct. p. 3031). Concluding that under other circumstances the broadcast might have been permissible, it was stated by the court (pp. 750-751, 98 S.Ct. p. 3040-41) that it might have been “‘merely a right thing in the wrong place,—like a pig in the parlor instead of the barnyard.’ … We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.”

Spiros' argument that any faculty member, or fellow pupil, might avoid personal offense or intrusion from the message of his badge, by simply not looking at it, ignores reality. The badge was designed and worn to, and did, attract attention. Upon a school pupil's looking at it the badge had served its purpose; the message was complete and it was too late to avoid it by turning away. And thereafter during each school day the mere appearance of Spiros with his badge, whether or not again read, was a continuing reminder of its vulgar message. His fellow students, compelled to attend school, were truly a “captive audience.” A similar argument was addressed in FCC v. Pacifica Foundation, supra, 438 U.S. 726, 748-749, 98 S.Ct. 3026, 3039-40, 57 L.Ed.2d 1073, as follows: “To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.”

We are unpersuaded that Spiros was constitutionally permitted to flaunt the message of his badge in and about the classroom because it was a “political” protest. Such a rationale would permit him to select as the object of his vulgar verb, other “political” targets such as the school administration's choice of curricula, or its principal, or his teacher, or even the boy or girl across the aisle against whom he may be campaigning for class president. It requires scant imagination to envisage the resultant disruptive effect upon the school's educational effort. In such situations “school officials have ‘comprehensive authority … consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools' [in light of] the ‘special characteristics of the school environment’ ․” (L. A. Teachers Union v. L. A. City Bd. of Ed. (1969) 71 Cal.2d 551, 558, 78 Cal.Rptr. 723, 455 P.2d 827; and see Tinker v. Des Moines School Dist., supra, 393 U.S. 503, 507, 89 S.Ct. 733, 736-37, 21 L.Ed.2d 731.)

Finally, we adopt certain language of the following authorities:

Corley v. Daunhauer (E.D.Ark.1970) 312 F.Supp. 811, 816: “Reasonable restrictions on students in the fields of conduct … are desirable if the schools are to operate effectively and efficiently. That is necessarily so because learning for many people is a discipline rather than a pleasure, and if it is to be practiced successfully, the practice must be carried out in dignified and orderly surroundings. Public school students, particularly those at the elementary and junior high school levels, are still immature, some of them are children of tender years.”

Montalvo v. Madera Unified Sch. Dist. Bd. of Education, supra, 21 Cal.App.3d 323, 330, 98 Cal.Rptr. 593: “[I]t should be recognized that, by and large, school administrators and personnel are professionally trained individuals, who are competent and dedicated experts in the field of education, which is something the courts are not. In the absence of very clear abuse of their power and authority bordering on capriciousness, arbitrariness or bad faith and involving the violation of statutory mandates or clear constitutional proscriptions, the courts should let stand their decisions as to what is required and not required in the day to day administration of the affairs of the schools. A court may disagree with the judgment of school personnel, but such disapproval provides no license or authorization to usurp their authority, substitute the court's judgment for that of the administrators, or take over the operation of their schools.”

It has become unnecessary in our resolution of the cause to consider other of the points and arguments raised by the parties.

The peremptory writ of mandate is denied, and the alternative writ is discharged.

I respectfully dissent.

We granted an alternative writ of mandate to consider whether constitutional and statutory protection applies to a high school student's political expression in the form of a small button, one and one-half inches in diameter, worn during regular school hours inscribed with the message “Fuck the draft.” That examination in light of relevant legal principles impels a conclusion that the trial court erred in its failure to grant a preliminary injunction enjoining real parties in interest from unreasonably interfering with petitioner's right to wear the questioned button.

Extraordinary Review

A writ of mandamus is an appropriate remedy when there is no plain, speedy and adequate remedy at law, when the respondent has a clear duty to perform and when the petitioner has a clear and beneficial right to such performance. (Payne v. Superior Court (1976) 17 Cal.3d 908, 132 Cal.Rptr. 405, 553 P.2d 565.) Additionally, where a claimed deprivation of First Amendment rights is involved, mandamus has long been recognized as an appropriate remedy to enforce such rights. (See National Socialist Party v. Skokie (1977) 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96; In re Halkin (1979) 598 F.2d 176; Wrather-Alvarez, etc., Inc. v. Hewicker (1957) 147 Cal.App.2d 509, 305 P.2d 236.) Moreover, having issued our alternative writ, we have concluded that the normal remedy of appeal is inadequate. (See Morse v. Municipal Court (1974) 13 Cal.3d 149, 155, 118 Cal.Rptr. 14, 529 P.2d 46; Brown v. Superior Court (1971) 5 Cal.3d 509, 515, 96 Cal.Rptr. 584, 487 P.2d 1224; CBS, Inc. v. Superior Court (1978) 85 Cal.App.3d 241, 247, 149 Cal.Rptr. 421.)

Background

The factual background contained in the record before us is essentially undisputed: Petitioner Spiros Hinze is a 16-year-old student at Redwood High School, a public high school within the Tamalpais Union High School District in Marin County. The individually named real parties in interest are school district officials acting in the course and scope of their duties.¹

Spiros, a long time political activist, sought to organize a Redwood High School student chapter affiliated with the Marin Student for Peace and Civil Liberties, an organization of high school students formed to stimulate public awareness concerning the military draft and to oppose reinstitution of military conscription. In addition to publishing and distributing a campus newspaper voicing his political views, Spiros frequently attends school wearing a jacket displaying an assortment of small buttons and other insignia inscribed with a variety of political messages. Beginning on March 24, 1980, Spiros' display included the questioned button which he had purchased at an anti-draft rally. On April 18, 1980, real party Quiett, after informing Spiros that it was inappropriate to wear the button at school, removed it; the button was returned to Spiros at the end of the school day with instructions not to wear it to school again. After again wearing the button on April 24, 1980, Spiros and his parents, themselves high school teachers who shared their son's anti-draft views, attended a conference with real parties Frakes and Quiett, during which they were informed that the operative term was “vulgar” within the meaning of section 48900, subdivision (g) of the Education Code;² and that continued defiance of the order of removal while at school would result in immediate suspension and eventual expulsion under established policy limiting the period of suspension to a total of 11 days. Undaunted, Spiros continued the practice resulting in successive suspensions (three days) imposed by real party Woodke acting under authority of section 48900, subdivision (h).³ Rather than surrender his claimed right of free expression at the risk of jeopardizing his school record, Spiros elected to stay home from school indefinitely. On May 28, 1980, Spiros filed suit seeking injunctive and declaratory relief based upon federal and state constitutional grounds (U.S.Const. 1st and 14th Amends.; Cal.Const., art. I, §§ 2, 3), and related statutory provisions (42 U.S.C. § 1983; Ed.Code, § 48916). On June 9, 1980, following a hearing for preliminary injunctive relief, the trial court denied relief concluding that Spiros' repeated display of the offending button constituted “habitual vulgarity” authorizing his suspension under the authority of section 48900, subdivision (g). The trial court further concluded that Spiros was unlikely to prevail in the action by reason of his failure to exhaust administrative remedies. This proceeding ensued.

The thesis advanced in the petition for relief centers upon a claim of protected free speech. Wearing the inscribed button on campus as a symbol of free political expression, it is argued, is a form of constitutionally protected activity (U.S.Const. 1st Amend.; Cal.Const., art. I, § 2) which exercise is likewise guaranteed against infringement by school authorities under the relevant provisions of the 1976 enactment of the student's Bill of Rights. (See § 48916.) Nor, it is further contended, may such protected activity be circumscribed under threat of disciplinary sanctions based upon an unconstitutionally vague standard of “habitual profanity or vulgarity.” (§ 48900, subd. (g).) Relying upon a number of decisions recognizing the state's power to regulate student activities within the school environment (Montalvo v. Madera Unified Sch. Dist. Bd. of Education (1971) 21 Cal.App.3d 323, 330, 98 Cal.Rptr. 593; Goldberg v. Regents of the University of California (1967) 248 Cal.App.2d 867, 57 Cal.Rptr. 463; Baker v. Downey City Board of Education (1969) 307 F.Supp. 517, 521), real parties argue that the manner of student expression within the school setting is subject to reasonable regulation at the discretion of the school officials acting pursuant to statute. (I. e., § 48900 et seq.) Unlike the broad latitude accorded freedom of speech within the traditional forums of expression (Grayned v. City of Rockford (1972) 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222), or at higher academic levels (see Papish v. University of Missouri Curators (1973) 410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618 [college]; Braxton v. Municipal Court (1973) 10 Cal.3d 138, 109 Cal.Rptr. 897, 514 P.2d 697 [college]; Lindros v. Governing Bd. of the Torrance Unified School Dist. (1973) 9 Cal.3d 524, 108 Cal.Rptr. 185, 510 P.2d 361, cert. den. 414 U.S. 1112, 94 S.Ct. 842, 38 L.Ed.2d 739 [high school teacher]), special characteristics associated with compulsory public education justify a wider range of administrative discretion in regulating the means of expression on the school campus as reflected in the statutory scheme. (See FCC v. Pacifica Foundation (1978) 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073, rehg. den. 439 U.S. 883, 99 S.Ct. 227, 58 L.Ed.2d 198; Baker v. Downey City Board of Education, supra, 307 F.Supp. 517, 525; Montalvo v. Madera Unified Sch. Dist. Bd. of Education, supra, 21 Cal.App.3d at p. 330, 98 Cal.Rptr. 593.)

Finally, real parties argue the writ must be denied by reason of petitioner's failure to exhaust his administrative remedies.

I

Exhaustion of Administrative Remedies

Under the disciplinary provisions of the statutory scheme, as amended (§§ 48900-48915), an order of suspension is subject to administrative review by school officials upon the request of the parents or student at “a meeting with the superintendent … held within three schooldays of the time such request is received ․” (§ 48904, subd. (a).) On June 19, 1980, during school recess, Spiros through his attorney, submitted a written request for such meeting in order to appeal the decision denying him the right to wear the button. In his reply of July 2, 1980, counsel for real parties expressed a conditional approval of such meeting emphasizing that Spiros had failed to exhaust his available administrative remedies before bringing suit. On July 11, 1980, counsel for Spiros rejected the proposal on the basis of a perceived prejudgment and untimeliness. Consequently, real parties argue, the failure to exhaust such available administrative remedies precludes judicial review. (Mountain View Chamber of Commerce v. City of Mountain View (1978) 77 Cal.App.3d 82, 94, 143 Cal.Rptr. 441; Noonan v. Green (1969) 276 Cal.App.2d 25, 31, 80 Cal.Rptr. 513; Schwartz v. Galveston Independent School District (D.C.Tex.1973) 309 F.Supp. 1034.) Spiros counters that the doctrine of exhaustion of administrative remedies does not apply to a federal civil rights action. (See Wilwording v. Swenson (1971) 404 U.S. 249, 251-252, 92 S.Ct. 407, 409-10, 30 L.Ed.2d 418; Houghton v. Shafer (1968) 392 U.S. 639, 640, 88 S.Ct. 2119, 2120, 20 L.Ed.2d 1319; Damico v. California (1967) 389 U.S. 416, 417, 88 S.Ct. 526, 527, 19 L.Ed.2d 647; McNeese v. Board of Education (1963) 373 U.S. 668, 82 S.Ct. 1433, 10 L.Ed.2d 622.) Moreover, he continues, since the statutory remedy can only redress past grievances, it can have no meaningful application to the requested relief enjoining future violation of his rights. Whether the question of federal supremacy overrides the doctrinal inhibition to such federal claim prosecuted in a state court need not be decided. (Cf. Williams v. Horvath (1976) 16 Cal.3d 834, 129 Cal.Rptr. 453, 548 P.2d 1125 [[[[involving state claims statute].) The doctrine as a procedural bar is subject to numerous exceptions (see Peralta Federation of Teachers v. Peralta Community College Dist. (1979) 24 Cal.3d 369, 387, 155 Cal.Rptr. 679, 595 P.2d 113 cert. den. 444 U.S. 966, 100 S.Ct. 455, 62 L.Ed.2d 379; Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830, 834-835, 112 Cal.Rptr. 761), including the threat of irreparable injury to First Amendment activities. (Cf. Elrod v. Burns (1976) 427 U.S. 347, 374-375, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547.) The record manifests a high probability of such injury in view of real parties' unwavering claim of validity of its disciplinary action and the consequent futility of submitting to possible expulsion during the extended period of administrative review provided by the statutes.⁴

To require a student to submit to such significant disciplinary sanctions at the cost of forfeiting a constitutional claim, even for a “minimal period of time” (Elrod v. Burns, supra, 427 U.S. at pp. 374-375, 96 S.Ct. at p. 2690) clearly amounts to an irreparable injury justifying judicial intervention in the first instance.

II

Constitutional and Statutory Analysis

It is a matter of settled constitutional law that First Amendment protection shields the exercise of free speech within the academic as well as the general community. (Tinker v. Des Moines School Dist. (1969) 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 [high school]; Papish v. University of Missouri Curators, supra, 410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618; Scoville v. Board of Ed. of Joliet TP. H. S. Dist. 204, Etc., Ill. (7th Cir. 1970) 425 F.2d 10, 13, fn. 5 [high school]; cf., Montalvo v. Madera Unified Sch. Dist. Bd. of Education, supra, 21 Cal.App.3d 323, 332, 98 Cal.Rptr. 593 [junior high school].) While the exercise of constitutionally protected speech or expression is subject to reasonable time, place and manner regulations in order to prevent substantial disruption of the orderly operation of a variety of public activities (see e. g., Grayned v. City of Rockford, supra, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222), including public schools (Healy v. James (1972) 408 U.S. 169, 192-193, 92 S.Ct. 2338, 2351-52, 33 L.Ed.2d 266), such rights are neither abandoned “at the schoolhouse gate” (Tinker v. Des Monies School Dist., supra, 393 U.S. at p. 506, 89 S.Ct. at p. 736), nor measured under a dual standard with respect to the content of such expression. (Papish v. University of Missouri Curators, supra, 410 U.S. at p. 671, 93 S.Ct. at p. 1200.) So long as the form of expression is not disruptive and does not conflict with validly imposed school regulations, students are constitutionally entitled to freely express their own [political] views. (Tinker v. Des Moines School Dist., supra, 393 U.S. at p. 511, 89 S.Ct. at p. 739; Braxton v. Municipal Court, supra, 10 Cal.3d 138, 149, 109 Cal.Rptr. 897, 514 P.2d 697.) As our highest court declared in Tinker (involving the validity of students' suspension for wearing black arm bands as a political protest), “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 ․ [and] … where there is no finding and no showing that … 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.” (Tinker v. Des Moines School Dist., supra, 393 U.S. at p. 509, 89 S.Ct. at p. 738.)

By virtue of the 1976 enactment of the student's Bill of Rights, the California Legislature has clearly indicated its intent that the same constitutional standards shall equally apply on the school campus. Under the relevant statutes, a student has “the right to exercise freedom of speech and of the press including, … the wearing of buttons, badges, and other insignia, …” (§ 48916.) While the governing school board is empowered to adopt rules and regulations reasonably providing for the time, place and manner of conducting such protected activities, only that expression which is “obscene, libelous or slanderous” and material calculated to incite unlawful student activity, the violation of lawful regulations, or the substantial disruption of the orderly operation of the school, may be prohibited. (§ 48916; cf. § 76120 containing substantially similar provisions applicable to community colleges.) No contention is made that the language used is obscene and thus beyond the protective reach of the First Amendment. (See Cohen v. California (1971) 403 U.S. 15, 20, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284.) In its benchmark decision sustaining a First Amendment claim involving the very same anti-draft epithet emblazoned upon a jacket worn in a public courthouse corridor, our highest court reasoned that a greater risk lay in the potential for government censorship than in the toleration of offensive expression as a necessary side effect of the broader social values underpinning the process of free and open debate. (Id., at p. 25, 91 S.Ct. at p. 1788.) The court recognized that the Constitution protected not only the ideational content of linguistic expression, but its emotive content as well, theorizing that “words are often chosen as much for their emotive as their cognitive force,” a communicative function which “may often be the more important element of the overall message․” (Id., at p. 26, 91 S.Ct. at p. 1788.) No matter how distasteful or annoying the offensive expression may be, considerations of conventional decency alone are not enough to shut off the dissemination of ideas. (Papish v. University of Missouri Curators, supra, 410 U.S. 667, 670, 93 S.Ct. 1197, 1199, 35 L.Ed.2d 618.) Courts have openly acknowledged that in the delicate area of creative expression, it is sometimes necessary for the speaker to use scurrilous language in order to vividly convey to the audience the sense of indignation or outrage that was felt. (See Lindros v. Governing Bd. of the Torrance Unified School Dist., supra, 9 Cal.3d 524, 535, 108 Cal.Rptr. 185, 510 P.2d 361; see also United States v. Head (E.D.La.1970) 317 F.Supp. 1138, 1144.) In a parallel context Spiros asserts that the inscribed epithet precisely expressed the scorn which he holds for the concept of military conscription and that “no other formula of words” could adequately reflect the depth of his feelings regarding the immorality and indignity of a military draft. Clearly, the emotive content of such expression was entitled to the same degree of constitutional protection as the political principle which it espoused.

While there is some merit in the relatively debatable proposition that the mere circumstance of adolescence justifies “more stringent regulations … in a school environment” (Montalvo v. Madera Unified Sch. Dist. Bd. of Education, supra, 21 Cal.App.3d at p. 330, 98 Cal.Rptr. 593), it is at least certain that no other group has a greater stake in the controversial military draft than the high school students of today; as Spiros persuasively argues, since it is this group which one day might be called upon to do battle—and perhaps die—in the defense of their country, they should be considered mature enough to express their personal views in the continuing debate with the same degree of constitutional protection as is accorded others.

Though acknowledging a student's right to engage in free political expression, real parties argue that they are not attempting to regulate the content of that expression but only the manner of expression. That argument is both factually and legally unsupported. The record demonstrates that Spiros was suspended as a result of his willful disobedience of the order to not wear the button at school. That order was solely grounded upon real parties' conclusion that the offensive expression constituted “habitual profanity or vulgarity.” (§ 48900, subd. (g).) Undoubtedly, if it were adequately shown that Spiros' conduct constituted a willful defiance of “the valid authority of supervisors, teachers, or administrators” (§ 48900, subd. (h)), resulting in a material disruption of regular school activities or involved a risk of substantial disorder or invasion of the rights of others (see Tinker v. Des Moines School Dist., supra, 393 U.S. at pp. 512-514, 89 S.Ct. at pp. 739-40; Braxton v. Municipal Court, supra, 10 Cal.3d at p. 150, 109 Cal.Rptr. 897, 514 P.2d 697); such conduct would be impermissible and warrant the imposition of appropriate sanctions.

However, not only is the record barren of such supporting evidence and essential findings, but what is reflected is an otherwise unremarkable general acceptance by the student body of Spiros' button which occasionally stimulated inquiries on how to obtain a similar button.⁵

As a further justification to regulate free speech on the campus, real parties develop the additional argument that the circumstance of compulsory education effectively creates a “captive audience” thus establishing a legitimate basis for curtailment of expression notwithstanding its political content. (See FCC v. Pacifica Foundation, supra, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073; Lehman v. City of Shaker Heights (1974) 418 U.S. 298, 303-304, 94 S.Ct. 2714, 2717-18, 41 L.Ed.2d 770.) The argument is substantially wide of its mark. The wearing of a single small button hardly rises to the level of pervasive intrusion of privacy condemned in FCC (a radio monologue on “Filthy Words”) or sensory bombardment by political advertisement in city owned buses found regulable in Lehman; but see Wirta v. Alameda-Contra Costa Transit Dist. (1967) 68 Cal.2d 51, 61, fn. 3, 64 Cal.Rptr. 430, 434 P.2d 982. Unlike a home or a public bus, the school campus represents a traditional marketplace for the free exchange and development of ideas, whether orthodox or controversial, deserving of vigilant protection. (See Keyishian v. Board of Regents (1967) 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629.) Certainly the process of public education must always find room for the broadest possible expression of all forms of ideas and opinions so long as the rights of others are not compromised and regular school operations are not disrupted. As Cohen instructs, any student or staff member offended by the particular button worn by Spiros can avoid any personal intrusion by simply not looking, a privacy limitation substantially outweighed by the protected interests involved. (See Cohen v. California, supra, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284.)

Whether the repeated use of the challenged expression constitutes habitual profanity or vulgarity invading the privacy of others in an intolerable manner or threatens a substantial disruption of normal school activities, has yet to be determined. Absent such necessary findings, as here, I cannot conclude that such use amounted to willful disobedience under the statute justifying the order of suspension. It is difficult to imagine that the simple act of wearing the inscribed button, without more, carries a real threat of student or staff distraction so as to cause a break down in orderly school activities. (Cf. Burnside v. Byars (5th Cir. 1966) 363 F.2d 744, 748.) Unless and until such a satisfactory showing is made, Spiros should be entitled to wear his button without fear of reprisal.

Since there is a reasonable probability that Spiros will prevail on the merits of his claim at trial, the required balancing of the respective equities warrants preliminary injunctive relief. (See Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528, 67 Cal.Rptr. 761, 439 P.2d 889.)⁶

I would grant the peremptory writ of mandate commanding respondent court to vacate its order denying a preliminary injunction and to enter an order granting such relief.

FOOTNOTES

FOOTNOTE.  Under our construction of the pertinent statutes, we find no merit in an incidental contention of Spiros that they are unconstitutionally vague and overbroad. “[U]nder California law, “‘Reasonable certainty is all that is required. A statute will not be held void for uncertainty if any reasonable and practical construction can be given its language.””’ (People v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 345, 138 Cal.Rptr. 66, 562 P.2d 1315.)

1.  Real party Woodke is the school principal; real party Trujillo is the superintendent of the school district. The remaining real parties (Frakes and Quiett) are school administrators. Since their interests appear identical, I refer to them collectively unless otherwise indicated.

2.  All statutory references are to this code unless otherwise indicated.

3.  The statutory grounds for suspension include a determination that the student has: “Disrupted school activities or otherwise willfully defied the valid authority of supervisors, teachers, or administrators.” (§ 48900, subd. (h).)

4.  Since suspension is subject only to a lower level of informal review, the formal review of the validity of the student's claim must necessarily be triggered by either expulsion or involuntary transfer. Assuming an immediate appeal to the county board of education, Spiros' claim would not have finally been administratively adjudicated for a minimum period of 66 school days: 8 additional days of suspension, 35 days for the decision of the governing board and an additional 23 days for the county board of education's ultimate decision. (See §§ 48914-48915.)

5.  Not surprisingly, real parties have asserted that other instances involving the use of the objectionable expletive have occurred in unrelated contexts requiring administrative action. The probative value of that observation simply underscores, perhaps regrettably, that high school students in general are neither unfamiliar with—nor hesitant to frequently use—common street vernacular, including the ubiquitous expletive.

6.  I would not now decide the additional claim that section 48900, subdivision (g) is irredeemably vague and unenforceable. (Cf. Baker v. Downey City Board of Education, supra, 307 F.Supp. 517, 523.) That issue should be appropriately considered in the course of any further trial proceedings.

ELKINGTON, Associate Justice.

NEWSOM, J., concurs. RACANELLI, Presiding Justice, dissenting.Rehearing denied; RACANELLI, P.J., dissenting. Hearing denied; BIRD, C.J., dissenting.