INDIANAPOLIS SCHOOL COMM'RS v. JACOBS

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Argument of Lila J. Young

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1347, the School Board against Jacobs.

Mrs. Young.

Ms Lila J. Young: Mr. Chief Justice and may it please the Court.

I'm Mrs. Young, attorney for the petitioners, the Indianapolis School Board in this case.

The plaintiffs were high schools students in the Indianapolis Public Schools, all minors and they filed a class action for a declaratory injunctive relief as well as damages against the Indianapolis School Board because school authorities said they could neither distribute nor sell in the Indianapolis Schools a newspaper entitled the Corn Cob Curtain.

We had two board rules at that time, both requiring prior approval for sales and for distribution of literature at school.

Approval was not given for the sale or distributions of the Corn Cob Curtain because it contained defamatory, obscene language.

This --

Justice Potter Stewart: At what point was the approval not given, after the (Voice Overlap) first issue --

Ms Lila J. Young: There have been -- yes, no it was not the first issue.

There had been several issues distributed both in and outside of the school.

Actually not very many copies had been distributed inside any of the high schools.

There were two high schools at which some distribution had taken place.

At that time --

Justice Potter Stewart: And there five issues involved then?

Ms Lila J. Young: There were five issues over a period of the little over four months.

Justice Potter Stewart: And it was after the publication of the fifth issue that approval was not given?

Ms Lila J. Young: By the superintendent, that's correct.

Justice Potter Stewart: In what form was it?

What's its approval? (Voice Overlap)

Ms Lila J. Young: Well, there had been some discussion with the administrators and they got -- the high school administrators, they got together with the superintendent and at that time he asked for copies and said that it contained obscene language and he could not give approval to distribution on this in a -- of this in the school because he felt it was the duty of the school officials to discourage and prevent the use of this language by children in school.

Justice Lewis F. Powell: Is this publication still being published?

Ms Lila J. Young: No, it is not.

Justice Lewis F. Powell: When was that discontinued?

Ms Lila J. Young: Shortly after the decision in this case.

There were a few copies distributed at a couple of high schools or outside of those high schools after the decision but the Corn Cub Curtain is no longer an existence.

Were any penalties imposed on the plaintiffs?

Ms Lila J. Young: Absolutely none.

Justice Lewis F. Powell: What interest remains, what (Voice Overlap) --

Ms Lila J. Young: Well, the interest --

Justice Lewis F. Powell: What's alive in this case today?

Ms Lila J. Young: There's a quite a bit alive in this case.

We have submitted several sets of rules to the court, to the District Court.

First of all, we amended our original rules of prior restraint.

These rules are no longer in existence, but the first amendment of our rule added procedural and substantive safeguards to these rules but the District Court said he could not give any approval to any form of prior restraint.

So at that time he ordered to us again amend our rules which we did.

Our second amendment of our rules contained only subsequent restraints and we had quite a few of those.

The District Court also declared those facially unconstitutional.

He entered a permanent injunction against us as well as declaring these rules facially unconstitutional and this injunction was upheld in its entirety by the Seventh Circuit, so we have a permanent injunction against us.

We also have a complete inability to have any rules or regulations of what is going to be distributed in our school, so this issue is very much alive even though the Corn Cob Curtain as a particular newspaper is no longer an existence.

Justice Potter Stewart: And haven't the -- do I remember correctly that the publishers of the paper have graduated now from the school system?

Ms Lila J. Young: I think virtually all of them have of this particular paper.

Justice Potter Stewart: And so the --

Ms Lila J. Young: There are basically five issues presented to this Court today.

One is the validity of our rules of prior restraint, the rules adding the substantive and procedural safeguards that were suggested by the other circuits which had approved the principle of prior review of student literature prior to its distribution in school.

Two of the issues concern the validity of our rules of subsequent restraint and whether the Court of Appeals erroneously applied principles in declaring these rules facially void.

Our fourth issue is whether the District Court erred in his complete refusal to apply the Federal Rules of Civil Procedures 17 (c) simply because the infant plaintiffs in this case had raised a constitutional issue so he totally ignored the mandate of that rule.

The fifth issue which I plan to emphasize here today is whether elementary and high schools can either prevent or discipline students who use gutter language in our elementary and high schools.

Since we all know what these words are and they're printed in the appendix, I would prefer not to repeat them here today.

They involve more than words, they involved phrases and filthy cartoons.

Now, it's your decision whether or not children will be using gutter language in our elementary and high schools.

If you decide that school officials can neither prevent nor discipline students who use this language in school, then many basic functions of our schools will be destroyed.

One of these basic functions is to teach children how to use language properly and in socially acceptable terms.

Now, this cannot be taught in our schools and it will not be taught.

If you decide that the school officials can do nothing about it and if the students in our school say, “We'll, it's okay for us to write and distribute this language because the Supreme Court says its fine.”

Now, a lot of time could be spent discussing what label we might attach to these words whether they should be classified as legally obscene as to minors or as indecent.

But the classification or label attached to this filth doesn't change the fact that it belongs in the gutter and not in our school houses.

Now, it's either right or wrong for children to be using and distributing this language in our schools and if it's wrong then our school officials should be able to do something about it.

It seems incredible that the right to control the use of this language in our schools should even be questioned, let alone denied.

Our briefs discussed many harmful consequences of allowing this type of language to be spread throughout our elementary and high schools.

Justice Potter Stewart: I had an impression that this just involved high schools --

Ms Lila J. Young: No, it definitely involves elementary schools.

Our rules definitely cover all the Indianapolis public schools and there are some 114 elementary schools as well as 11 high schools.

Now, the plaintiffs were high school students.

Two of them -- before the action had been commenced, before the compliant was filed had actually graduated but they were high schools students.

They had actually distributed only in two or around two high schools but the injunction covers and clearly covers the elementary schools.

The rules clearly cover the elementary schools.

Our briefs and everything covers the elementary schools.

We don't have separate rules for grade schools children and high school children.

Justice Potter Stewart: Do your colleagues in the other side agree with you? (Voice Overlap) --

Ms Lila J. Young: At no time did they deny that these rules in the case involved only high schools until we got up to the Seventh Circuit and there in response to a question by one of the justices they stated, “These rules apply only to high schools.”

But they do not and the court's opinion, the District Court's opinion clearly is applicable as well as the injunction is applicable to grade school student.

Also --

Justice William H. Rehnquist: One of the basis of Judge Christensen's dissent in the Seventh Circuit wasn't it, was that the majority failed to distinguish in its opinion between application to high schools and application to elementary schools?

Ms Lila J. Young: That's correct.

However, since the injunction was upheld in it's entirety it's very clear that we cannot apply these rules to elementary students.

The rules were declared facially void, null and void.

It would be bad faith for us to say, well even though they specifically covered all the schools that we can go now and apply them to the grade schools.

Justice Potter Stewart: Well, is there anything in these papers that could have led a reasonably careful reader to get the impression that only high schools were involved?

Ms Lila J. Young: I doubt that because if you look even in that --

Justice Potter Stewart: That's not the claim of your adversary?

Ms Lila J. Young: They claimed that for the first time at the oral argument but they never claimed it and they never denied the fact that elementary students were involved when we were down in the Lower Courts.

Justice Potter Stewart: How about here?

Is there anything (Voice Overlap) --

Ms Lila J. Young: I'm certain they will probably claim it here.

Justice Potter Stewart: Well then -- and in their briefs, in their (Voice Overlap) --

Ms Lila J. Young: Right.

But if you look at the transcript --

Justice Potter Stewart: Well then maybe a reasonably careful, a prudent reader might have gotten that impression.

Ms Lila J. Young: I would disagree with that because they have many references to elementary schools, their very complaint.

Justice Potter Stewart: I mean the impression that their claim has made.

Ms Lila J. Young: The impression that the claim --

Justice Potter Stewart: That the claim is made by your adversaries that these rules applied to high schools only.

That they're only talking about high schools.

Well, let see what they say but I just (Voice Overlap) --

Ms Lila J. Young: Well, I don't believe that they claimed that the injunction -- I don't think that they claiming that the injunction or the rules apply only to or govern only high schools.

I think their argument basically is that the class was consisted only of high school students but the students made it clear right in the evidentiary hearing that they planned to distribute this newspaper not only to high school student but to anyone else and the relief sought was not confined only to high schools.

Justice Potter Stewart: Who were the plaintiffs or the class of plaintiffs?

Ms Lila J. Young: They are -- who are remaining plaintiffs?

Justice Potter Stewart: Well, in the complaint.

Was it -- it was a class action, wasn't it?

Ms Lila J. Young: Right.

There were six named plaintiffs.

Only two remained at the end of the case because the rest had graduated.

Justice Potter Stewart: And now those two had graduated?

Ms Lila J. Young: I'm not completely sure but I think that's probably true.

Justice Potter Stewart: Were there -- was there a declaration of a certification of a class action?

Ms Lila J. Young: Yes.

Justice Potter Stewart: What was the class?

Ms Lila J. Young: The class was the high schools students in the Indianapolis public schools, but the relief sought governed more than the high schools students.

It involved our suppression of distribution anywhere in the Indianapolis public schools.

As I said the issue I wish to emphasize here today is the issue on the type of language and the basic reason for suppressing this distribution.

If this Court decides that minors may not be disciplined for using this language in school, how can it consistently justify its own rules and the Federal Rules of Civil Procedure that permit adult attorneys to be disciplined for inserting scandalous and indecent material in their briefs and pleadings.

Surely the school officials have as much right to maintain a basic level of decency and a proper atmosphere in our school so that learning can take place.

An academic atmosphere is no less important in our schools than it is in our Courts and if respect and decency is destroyed in our school then it won't last much longer in the courtroom or anywhere else.

In balancing the public interest or the students' interest in expression against the many harmful consequences that we have stated in our brief and the justifications for the regulation of this type of filth in our schools, I think the scales are very unevenly balanced.

In fact, what possible value or benefit could be derived by permitting children to use and distribute this type of four letter words and filth in our elementary and secondary schools.

Respondents argue that not every article is filthy and that the words are not used too many times, but if the number of times obscenities are used is to be the criterion for regulation in the school house, then this would be in effect telling children that it's okay to use these words just so long as you don't use them too many times.

Justice Byron R. White: What would -- could you -- I suppose you're going to get to what are -- what the minimum safeguards are that you think the board is entitled to impose in order to achieve what you think they should be able to achieve?

Ms Lila J. Young: Well, I think there are two ways of approaching this.

We originally approached it and would like to still continue to approach it with a prior review of student literature in order to take --

Justice Byron R. White: That -- would that -- whether each publication or would they say, “We want to put out and apply to you” and say, “We want to put out a paper and please give us permission.”

Ms Lila J. Young: The procedures are set out in our rule of prior review.

They would submit material that they desire to have a general distribution of in the school house.

We have procedural safeguards set out and criterion --

Justice Byron R. White: Will that -- that would be an issue then?

Ms Lila J. Young: That's -- that would be correct, each issue, and if filth and four letter words were used in the publication then the school officials would say that they do not think this is proper language to use and they would not allow the distribution unless that language would be removed, that's the issue of prior restraint and --

Justice Byron R. White: Well, how was the -- suppose the authorities just didn't agree with what was said.

Ms Lila J. Young: There would be no regulation.

Justice Byron R. White: Besides the -- beside the -- what if there was criticism the way the school was run?

Ms Lila J. Young: The rule specifically provides for allowing responsible criticism, it's stated right in the rules.

Justice William J. Brennan: So what's responsible?

Who decides --

Ms Lila J. Young: Well, responsible criticism would be --

Justice William J. Brennan: Who decides it?

Ms Lila J. Young: Who decides it?

Well, --

Justice Byron R. White: Fellow who criticized?

Ms Lila J. Young: The --a board or review that would be setup to look at this --

Justice William J. Brennan: Who might be himself criticized?

Ms Lila J. Young: Who might be criticized himself, that's correct.

Our schools are not opposed to criticism.

They see -- receive a great deal of it and I think they'd receive a great deal more if they didn't have any rules or control over the conduct of students in their schools.

Justice Byron R. White: Now, do you think that -- do you think it would just be unmanageable or just not effective if the school had the rules as to what could be in matter -- in materials that are distributed and -- but didn't have a license, didn't have a pre-approval system that you would just -- if someone broke the rules and distributed those language in a newspaper suspend him or punish him or do something?

Ms Lila J. Young: That is called for in our rules of subsequent restraint which allow only subsequent punishment after the fact.

Justice Byron R. White: I understand but you apparently insist on wanting prior approval?

Ms Lila J. Young: Right, we have two set of rules.

We would prefer a prior approval.

Justice Byron R. White: I know you'd prefer, I'm trying to find out what your position is here as to what you're constitutionally entitled to do.

Ms Lila J. Young: I think we are entitled to both sets of rules as they have been written.

Justice Byron R. White: And the reason that you insist on the prior review is because the subsequent approach is ineffective or what?

Ms Lila J. Young: I don't think it is ineffective, I think it is less effective.

We aren't interested in punishing students.

We don't like to remove them from the schools.

We're interested in teaching them to speak in socially acceptable terms and a newspaper that they would wish to print could be a good learning experience, but I think there has to be certain controls.

We just like to take a peak at it and see what's coming in to our schools.

If we can't do that then we would like to impose subsequent restraints because that's all its left to us.

The subsequent restraints would not necessarily be expulsion.

They range from a reprimand to expulsion which is the last resort.

We don't use expulsion.

That often we try every other means first.

But we would like to avoid punishment and I think a prior review would set up more a learning experience rather than waiting and saying distribute it and see what the consequences are.

Justice Byron R. White: But you -- I take it that either way you go that one thing you would insist on and that is that the publishers can't be anonymous?

Ms Lila J. Young: I think this is more important for the rules of subsequent restraint.

I think it is absolutely essential in that area because that is the only means for determining who is abusing the system.

If articles are sent in to a post office boxes, they were in the Corn Cob Curtain and they'll print whatever they -- was sent into them with absolutely no editing, we must assume that they would allow pornography or anything else that was sent in.

Justice Byron R. White: But the -- even on the licensing approach you would insist that only students or faculty members be allowed to publish on this -- in the school system?

Ms Lila J. Young: I don't believe in our rule of prior restraint that we limit it.

We do on the anonymous part, but we would prefer a student newspaper in either situation be written by a student simply because outsiders have no right to come in to the school and distribute their wares and literature and we do not wish this basic principle to be subverted by having children distribute it for them.

The school is a place where many children are forced to attend.

It constitutes a large captive audience.

There are many outsiders that are interested in reaching this captive audience.

This is a serious problem not only with salesman but with anybody who want to reach the thousands of students in the school.

At Tech High School one of the student -- one of the schools involved in this case, we have over five thousands students.

This is quite a vulnerable captive audience.

So this is why we wish to have the school use only for the purpose for educational purposes and not for non-school purposes.

I'd like to reserve the remaining time for rebuttal.

Chief Justice Warren E. Burger: Very well Mrs. Young.

Mr. Pinkus.

Argument of Craig Eldon Pinkus

Mr. Craig Eldon Pinkus: Mr. Chief Justice and may it please the Court.

I would like to begin first of all aside from hazards of argument to address myself to what we regard as the issue that Mr. Justice Stewart was inquiring about whether this case thus indeed involve elementary students in any way whatsoever.

And we say most emphatically it does not involve elementary students in any way except that the injunction which was issued by the District Court thus indeed go to rules which cover the entire system.

Justice Potter Stewart: Well, except the colloquy I have noticed the closing language of the Court of Appeals opinion --

Mr. Craig Eldon Pinkus: Precisely Justice Stewart.

Justice Byron R. White: -- which says should the defendants apply to the District Court to limit the injunction to high schools, nothing in this decision forecloses the consideration of the application as a matter --

Mr. Craig Eldon Pinkus: Which is exactly what we think they ought to have done.

Justice William H. Rehnquist: Why shouldn't the petitioners -- why shouldn't they be entitled to a reversal from the Seventh Circuit on that point rather than simply telling them to go back and move the District Court to modify?

Mr. Craig Eldon Pinkus: Well we didn't argue that they were not entitled to reversal.

Justice William H. Rehnquist: Well then you concede that the Court of Appeals for the Second Circuit was wrong insofar that it is -- it affirmed that portion of the District Court's injunction?

Mr. Craig Eldon Pinkus: Well, we take the position that we've never represented the elementary students, they've never been in our class, they've never been involved in the evidentiary proceedings.

We've never briefed or argued on their behalf and we really have no objection to this Court finding that the Seventh Circuit was wrong insofar as it refused to rule on elementary students.

We're here before this Court on behalf of a class of people from 13 to 20 years old.

Justice William H. Rehnquist: Judge Stackler really gave you a broader injunction than you asked for then in the Seventh --

Mr. Craig Eldon Pinkus: Indeed he did Your Honor and I'd like to point to page 110 of the transcript, this is not in the appendix but there in a colloquy with Judge Stackler I said the following to him, “And we have prepared now in our prayer, I would agree with the Court, it is undoubtedly framed in language which would be overly broad.

It's a sin lawyers often commit.

I would say however that the reason for not presenting the Court for the tendered temporary restraining order form so that it would be possible perhaps to arrive in some joint fashion in terms of time, place and manner of distribution, which we endeavor to do from the beginning of our representation in this case.”

So, I think we made it clear from the beginning that we did use some broad language.

This was the hearing on the temporary restraining order.

Again the citation is page 110 of the transcript.

Justice Byron R. White: (Voice Overlap) --

Justice Potter Stewart: As I understand -- excuse me.

Yes.

Justice Byron R. White: What difference does it make whether it applies to elementary schools and (Voice Overlap) --

Justice Potter Stewart: Right.

Mr. Craig Eldon Pinkus: Well, we think that there is some emotional difference Justice White.

Justice Byron R. White: Voice Overlap) --

Mr. Craig Eldon Pinkus: No.

But we think that there is some --

Justice Byron R. White: The First Amendment would apply exactly the same way to elementary.

Mr. Craig Eldon Pinkus: I'm not clear if it would or not.

Justice Byron R. White: Would it or not?

Mr. Craig Eldon Pinkus: I would say that I can imagine under the Ginsburg Concept that a careful delineation of age groups would be constitutional under the First Amendment.

I simply don't know how precisely how those groups must be delineated and that's the answer that I must give you and we accept the Ginsburg Concept.

Justice Byron R. White: You don't accept it down the age 13, I mean anything from 13 up is -- you say is out of that (Voice Overlap) --

Mr. Craig Eldon Pinkus: No sir.

On the contrary we would be pleased to live with the New York's statute in Ginsburg in this case.

We would be very pleased to have that (Voice Overlap) --

Justice Potter Stewart: That was a criminal statute, wasn't it?

Mr. Craig Eldon Pinkus: Agreed but it did contain some --

Justice Potter Stewart: You don't mean that then, do you, that you could be sent to prison for --

Mr. Craig Eldon Pinkus: No.

I mean that it contains some definitions Justice Stewart.

Justice William J. Brennan: Wasn't the age in Ginsburg was (Inaudible), wasn't the age around 17?

Mr. Craig Eldon Pinkus: Seventeen Your Honor, yes.

Justice William J. Brennan: Well, what do you mean you'd be willing to live with the --

Mr. Craig Eldon Pinkus: It contains definitions of what obscenity is that have some specificity.

Here the board's rule which is found both in the appendix and in the appendix to the petition for certiorari 1.1.1 says “obscene.”

Justice William J. Brennan: But you're not going to the age limitation, that (Voice Overlap) --

Mr. Craig Eldon Pinkus: No sir.

I'm talking about specificity in light of the court's Miller in related cases.

Justice Byron R. White: Let's assume that, the board eliminated all -- well, didn't eliminate up the prohibition of obscenity but it added something it says “in these papers you will not use the following words and listed them and no others of the same kind”.

Now, what about some of the four letter words that you think that the school board is not entitled -- in a high school to forbid the use of those words in the newspaper.

Mr. Craig Eldon Pinkus: Yes sir.

Sir I believe they are not entitled to forbid any of the words that they are complaining about before this Court in high school publications per se and I want to make it clear they have focused upon words.

Justice William J. Brennan: (Voice Overlap) Mr. Pinkus that as far as they can go constitutionally is to prohibit only that which by constitutional definition is obscene?

Mr. Craig Eldon Pinkus: I think that they can fashion an obscenity rule with respect to the age group involved that is more restrictive than the rules that would apply to adults, but they've not done it.

Justice William J. Brennan: (Inaudible) not go so far as to prohibit the use of specific words.

Mr. Craig Eldon Pinkus: Regardless of context, the important point --

Justice William J. Brennan: Where do we go then in between specific words and what kind of rule would be fashioned?

Mr. Craig Eldon Pinkus: We believe sir that there must to be covered in any way by the obscenity concept there must be something erotic in the material involved.

And --

Justice Potter Stewart: That's probably true about obscenity but this isn't an obscenity case, is it?

This is quite different.

Mr. Craig Eldon Pinkus: Well sir, it was framed as an obscenity case.

The original answer filed by the school stated that the publications were obscene, that's in the appendix at page 3A I believe.

The statement of Mr. Kelp, the superintendent, who said you may not distribute this publication any longer in the record was, it is obscene.

The briefs of the school board have said that it's obscene so we must --

Justice Potter Stewart: What about rules?

What's -- what is involved here is the rules, isn't it?

Mr. Craig Eldon Pinkus: Yes sir and 1.1.1 says that distributable literature excludes that which is obscene.

It is not in our brief.

Justice Byron R. White: Why would a rule like that be unconstitutional on its face?

Justice Potter Stewart: Right.

Mr. Craig Eldon Pinkus: Well I think sir for several reasons.

First, the --

Justice Byron R. White: In the first place, I -- the Court of Appeals didn't hold it obscene on its face neither did the court -- District Court.

Mr. Craig Eldon Pinkus: I think that they did find it over broad as I understand the opinion Your Honor.

Justice Byron R. White: Is that -- that's the particular provision.

Mr. Craig Eldon Pinkus: Yes.

Justice Byron R. White: You mean this in its application.

Mr. Craig Eldon Pinkus: Because -- well, there is imprecision here, I grant.

What the Seventh Circuit did was concentrate on the breadth provided by Tinker.

The variable obscenity concept --

Justice Byron R. White: You wouldn't say that just a rule that forbade the newspaper to publish obscenity would be unconstitutional on its face?

Mr. Craig Eldon Pinkus: No sir I would not.

We're I'm talking about earthy words in this case, that's what I wish --

Justice Potter Stewart: We're talking about the rules --

Mr. Craig Eldon Pinkus: Well, yes except that the board is contending that the earthy words violate these rules.

Justice Potter Stewart: There's some place here where all the rules are set out (Voice Overlap) --

Mr. Craig Eldon Pinkus: Yes sir.

It is in -- the rules are in --

Justice Potter Stewart: (Voice Overlap)

Mr. Craig Eldon Pinkus: They're in two locations.

Justice Potter Stewart: Right.

Mr. Craig Eldon Pinkus: One is in the beige bound volume and the --

Justice Potter Stewart: (Voice Overlap) by the appendix?

Mr. Craig Eldon Pinkus: That's the appendix.

The other is at page 33A to the -- no, the appendix to the petition for certiorari.

Chief Justice Warren E. Burger: But what you're saying, --

Justice William H. Rehnquist: Where the --

Chief Justice Warren E. Burger: I think it is that the students in the high schools may say, express anything, say, express or depict with pictures, anything unless it violates the Miller, Adult Paris Theater line of cases of a year ago.

Mr. Craig Eldon Pinkus: No Mr. Chief Justice.

We believe that more restrictive standards than those that are applicable to adults under Miller and related cases can be acceptable in this setting.

Chief Justice Warren E. Burger: (Voice Overlap) I think you were thinking this entirely on obscenity.

Mr. Craig Eldon Pinkus: I didn't understand that sir.

Chief Justice Warren E. Burger: A few minutes ago you were responding to Mr. Justice White that this was an obscenity case.

Mr. Craig Eldon Pinkus: Well, we do not believe that the words in their context have anything to do with obscenity or lewdness and the Court has agreed with us.

Justice Potter Stewart: (Voice Overlap) agree with you, but that doesn't end the case, does it?

Mr. Craig Eldon Pinkus: No sir.

But I am attempting to respond to the board's argument.

The board has characterized the Corn Cub Curtain as an obscene publication.

There's simply no question about that and I'm attempting to respond to their argument.

I am glad to agree with any of the Justices that obscenity is not properly before this Court.

It is our position that there is nothing obscene about the Corn Cub Curtain under any standard and that's what I meant when I was saying I'd be glad to apply the Ginsburg type definitions which --

Justice William H. Rehnquist: But you go further and say that since there is nothing obscene even variably obscene under Ginsburg, the school board can't prohibit the use of particulars, specified words that are just regarded as being in very bad taste in public conversations around the dinner table?

Mr. Craig Eldon Pinkus: That is correct Justice Rehnquist.

That is our position.

Justice William H. Rehnquist: What's your basis?

What case of this Court do you rely on with that?

Mr. Craig Eldon Pinkus: Well, we think that in a sense the question on this issue is whether a public high school is more like a jail or the United States Army with Parker and Aderley in mind which has been relied upon the board, or it's more like a university in Papish.

Now, we think that the principal matter that we'd like to argue about the position of these words per se and I urge the Justices in the Court to read these publications because they are so infrequent.

Justice Harry A. Blackmun: Why did you presume we haven't?

Mr. Craig Eldon Pinkus: Yes, but --

Justice Harry A. Blackmun: What is your answer to Mrs. Young's hypothetical and if she hadn't raised it, I would have?

Do you concede that this Court can or has the power to proscribe language that is used in this courtroom?

Mr. Craig Eldon Pinkus: I do and I heard some --

Justice Harry A. Blackmun: If so then, do you contend that a court has greater control over the speech of mature lawyers than a school does over those of -- speech of teenagers?

Mr. Craig Eldon Pinkus: I think they're much different environments and I think that I heard language here from Mr. Clancy yesterday in the pursue of limited course that undoubtedly would have been equally as objectionable if it had been contained in the Corn Cub Curtain which had -- was not.

I mean, I think that context is the very vital thing.

I think --

Chief Justice Warren E. Burger: But the difference is that he was using it because he was repeating it out of a record in a case before the Court.

There may have been some question about his good taste in judgment in using it instead of letting us read it, but he wasn't using that language in the sense that Mr. Justice Blackmun is talking about.

Mr. Craig Eldon Pinkus: Well sir, I'm arguing that context is extremely vital and that -- to simply pick out a word and say this word is always inappropriate in a student publication goes very, very far beyond what the First Amendment should be permitted to tolerate and I would like to stress that we have quite a double standard.

These words are in the dictionaries, they are in the New York Times, they are in the Wall Street Journal reporting comments from presidential tapes.

These words are in novels that are in the libraries of our schools like Catcher in the Rye, all of these is conceded and we don't understand why if these words appear in a completely non-erotic context but they are in a non-official student publication that they must be proscribed when they are in the dictionaries and the newspapers and the magazines and the books, that's our position.

Justice William H. Rehnquist: Yet you wouldn't carry it over to elementary schools.

Mr. Craig Eldon Pinkus: Well, I really don't know the position on that Justice Rehnquist because quite frankly I've never dealt with the elementary school context in this litigation and I've -- I incidentally --

Justice Byron R. White: (Inaudible)

Mr. Craig Eldon Pinkus: Yes.

And we continue to agree that we would be willing to have that limited.

We're not prepared to argue the elementary context.

I would like to make a point about maturity.

There is some reason I think reading the Court's opinion in Wisconsin versus Yoder.

Footnote 15 pointed out the fact there that we still have many states in this nation where 8th grade education is the final grade that's required that people of the age that begins high school can be excused in several states, and that footnote notes that Indiana is one of those states.

In Indiana, a person who is a freshman in high school can be excused to go to work.

So we recognize that there is a dividing line there and we think the state's labor scheme recognizes the dividing line there

We're simply not prepared to say what it ought -- what the standards ought to be for people below that dividing line.

We're here only dealing with people who are above that dividing line and we've tried as carefully as possible to limit our actions.

Justice Harry A. Blackmun: What was the issue of dividing line?

A little while ago you spoke of age 13 which is the 7th grade normally, you are speaking of junior high now?

Mr. Craig Eldon Pinkus: No sir.

We -- I was quoting the testimony from now Superintendent Kelp when he was characterizing the age range attending the high schools in Indianapolis, Indiana and he stated that the age range was from 13 to 20 and that is at page 47A.

Justice Byron R. White: Well that is the scope of your submission, 13 to 20.

Mr. Craig Eldon Pinkus: Yes sir.

Justice Potter Stewart: That was -- so let's put another way, its from the 9th through the 12th grade.

Mr. Craig Eldon Pinkus: Yes sir.

And --

Justice Potter Stewart: Whatever age.

Mr. Craig Eldon Pinkus: -- to the extent that I indicated that 14 was the cut off, the -- I would grant that there may be one confused year in there but we are talking about the elementary versus the high school setting.

Justice Byron R. White: Did you take the position before the Court of Appeals that the Ginsburg approach to obscenity for younger people survived Miller?

Mr. Craig Eldon Pinkus: Yes.

Justice Byron R. White: The Court of Appeals didn't seem to think so, did it?

Mr. Craig Eldon Pinkus: Well, I must --

Justice Byron R. White: They find -- seem to distinct that because the -- because it wasn't any -- that the rules were bad because they didn't specify the conduct stated in Miller.

It wouldn't have to if Ginsburg survived.

Mr. Craig Eldon Pinkus: Well, Justice White I'm inclined to think you maybe correct.

I think what the Seventh Circuit was saying there was that the -- to the extent that the Ginsburg case relied upon preexisting --

Justice Byron R. White: You made that (Inaudible)

Mr. Craig Eldon Pinkus: Yes sir.

Chief Justice Warren E. Burger: Going back to this age group in your response to Mr. Justice White -- Mr. Justice Stewart that it is essentially from the 9th grade through the 12th.

What if 13 is an age where you have relatively few 13 year olds in high school normally, relatively few, you'd concede that as you have relatively few 20 year olds, those were the two extremes.

Mr. Craig Eldon Pinkus: Yes Mr. Chief Justice.

Chief Justice Warren E. Burger: Of course you've got a 13 year olds, 14 and 13 and 14 in grade school and they publish some of this kind of material for a grade school publication, then you would say they're protected then under your 13 to 20 range, their freedom, their First Amendment right can't be interfered with?

Mr. Craig Eldon Pinkus: Mr. Chief Justice that's really not quite our position, we're talking about --

Chief Justice Warren E. Burger: Well, it is if its 13, (Voice Overlap) --

Mr. Craig Eldon Pinkus: 13 year olds in high school sir, to be as accurate as I can be.

We have only --

Chief Justice Warren E. Burger: Is that what the injunction says, 13 year olds in high school?

Mr. Craig Eldon Pinkus: No, it does not and it should be narrowed and we agreed before the Seventh Circuit it should be narrowed and I agreed before the trial court that the complaint was broad in the statement of the relief prayed for and I still take that position sir.

I -- we just -- are only interested in the high school environment and if there are --

Chief Justice Warren E. Burger: Regardless of age.

Mr. Craig Eldon Pinkus: Well, that was the environment --

Chief Justice Warren E. Burger: Is that it?

Mr. Craig Eldon Pinkus: Yes, regardless of age.

That was the environment in which the publication was distributed.

It was done by high school students and to the extent there are precocious people able to get into high at the age of 13, they are included.

I'd like to briefly respond to the question earlier, the citation to Ginsburg in the Seventh Circuit's opinion is at 29A of the opinion which is found in the petition for the writ certiorari's appendix and that there Mr. Justice White they do quote at the top paragraph that they say they don't have to speculate about the exact effect of Miller on the variable obscenity concept by Ginsburg, and then they go on to say what is really our point.

Well, I think their point is that no matter what kind of names we use, we're not talking about obscenity here.

We're talking about words that bothers some people in some context, that we are talking about vulgarity perhaps.

Justice William H. Rehnquist: But there is an implicit in that paragraph of the Seventh Circuit's opinion certainly is the notion that Miller covered all aspects of obscenity and that if you can't tie Ginsburg into the language of Miller as written, Ginsburg didn't survive, don't you think?

Mr. Craig Eldon Pinkus: I think that that's quite possible Mr. Justice Rehnquist.

Justice Byron R. White: Meaning you think they are wrong, don't you?

Mr. Craig Eldon Pinkus: Yes.

We do not say that Ginsburg should be abandoned as I've tried to make clear.

We are not arguing that position and I'd like to point out that the students who put this out have never argued that.

The front page of the second issue of the Corn Cub Curtain is an article on student rights and it says, “freedom of the press and the right of petition, the right to distribute circulars and publications on campus so long as there is no interference with school work or the rights of others and provided that the publication is not libelous or obscene.

” They printed these on their publication months before anyone told them to stop distributing it and it's been our position all along.

We don't feel that pornography is necessarily something that can be distributed to minors and we think Ginsburg is still viable and I'd like to add a couple of notes to the facts in this case.

The discussions of the administrators that lead to the statement to this publication could not be distributed were inaugurated by Jeff Jacobs, one of the student plaintiffs.

He heard an announcement over the public address system which put a doubt in his mind about whether he was entitled to distribute this.

There is evidence in the record that he had previously talked to the Vice Principal, Mr. Wally Potter who said, “Well, he just didn't know for sure whether they could or not but he didn't want to overreact to the situation.

”And in the appendix of his testimony that he knowingly permitted the distribution of this publication in the high schools until the time that this young man, Jeff Jacobs called the superintendent's office and said, “I heard an announcement over the public address system, does it mean that I can't distribute the publication?”

I think the court should know that we're dealing with people who tried to resolve this matter lawfully and that from the day he heard that announcement on the public address system until the day the court issued its injunction this publication was suspended entirely.

Justice Byron R. White: Could I ask you a question?

Suppose the board had a rule that by any definition of obscenity or of bannable words you would agree, describe what could be banned clearly and you would think it could be banned.

I take it, your position is that even so, the board must wait until the publication has occurred.

Mr. Craig Eldon Pinkus: Precisely.

Justice Byron R. White: And that he board may not say, “I want to check on this distribution here before it goes out to make sure that this bannable material is not on the paper.

Mr. Craig Eldon Pinkus: Precisely, precisely and one --

Justice Byron R. White: And what's your -- you think that is even -- that rule against prior restraint would apply right across the board in high schools?

Mr. Craig Eldon Pinkus: Yes, that is our position.

Justice Byron R. White: And you would -- and you also insist on anonymity?

Mr. Craig Eldon Pinkus: No, we think that the -- I'd like to make two points on that.

First, the anonymity rule if read carefully is superfluous because under their definitions once you get down to what's distributable, it can't be libelous.

It can't be obscene so the justification for anonymity is gone since they are theoretically will be no libel actions and no obscenity prosecutions.

Justice Byron R. White: Well I don't know, there a lot of people wouldn't it -- might like to criticize the school authorities without knowing that they known who they are and like to tell some teachers are very bad and they wouldn't like to know -- especially if it's a member of that class, wouldn't like to know who's talking.

Mr. Craig Eldon Pinkus: We think that that's a valuable right which should be protected and that high school journalism is not so different from grown-up journalism, if you will, that the New York Times is to be treated differently to the extent that prior restraints against its publications bear an extremely heavy constitutional burden whereas they don't here.

And I'd like to mention on this matter of criticism, Justice White, at page 53A and following is the allegedly defamatory article about the football coach at Tech High School.

Now Jeff Jacobs himself was a football player at that high school and I'd like to --

Justice William J. Brennan: 53A of a -- of what?

Mr. Craig Eldon Pinkus: 53A of the appendix, the beige bound document.

This did contain some criticism but its criticism to my mind of the most mild and if you will school spirited variety.

At the bottom of the first paragraph for example, the student writer says, “When I was a freshman, I want to prove them wrong.”

Mr. Coot's assistant football coach last year really put pride in me, taught me the meaning.

I really loved him for this but all he has taught me has been torn down by the coaches this year.”

Continuing on to 54A, he's -- the student writer says, “I was wrong.

It took me four years to learn that I and anybody thinking they are over the coaches head are dead wrong and --

Justice William J. Brennan: Where is that?

Mr. Craig Eldon Pinkus: That is at 54A --

Justice William J. Brennan: Where?

Mr. Craig Eldon Pinkus: At the bottom of the page.

Justice William J. Brennan: Where?

Mr. Craig Eldon Pinkus: The very bottom, the sentence beginning “I was wrong, it took me four years to learn…” and then here is what I take to be the allegedly defamatory material.

They say that the coaches do not play the right people.

He is prejudiced, he is outdated and he is pigheaded.”

They may even say he is inhuman.

Well this may all be slightly true except the latter and they spelled it wrong.

If he makes these mistakes, he is nothing but human.

The athlete should realize this.

I am not saying they are entirely wrong but that they by arguing who is right and wrong are destroying Tech's athletic program and the whole thrust of these articles is that a school with 5,000 students ought to have the best football team in Indiana because it's the biggest school in Indiana.

And they can't understand why they used to have good football teams but they don't have good football teams anymore.

Now, I don't think there's anything defamatory in there and if these articles are read, they convey a concept of concern, of interest in having the football team perform better on the field and there is a lot of very positive talk in here and that's the tenor of this publication.

Chief Justice Warren E. Burger: How old was this growing young man at the time who wrote this, how old was he when he wrote it?

Mr. Craig Eldon Pinkus: I don't know.

I don't know Mr. Chief Justice.

It is signed that way as an anonymous in --

Chief Justice Warren E. Burger: He is a high school student?

Mr. Craig Eldon Pinkus: Yes, the evidence, the --

Chief Justice Warren E. Burger: Do you suppose these general activities that are been under in discussion here for now an hour have any relationship to the fact that he misspells three very elementary words in there in one paragraph?

Mr. Craig Eldon Pinkus: With all due respect, there is testimony about the printing and reproduction processes here.

They were rather primitive.

There was not much money to work with.

The evidence in --

Chief Justice Warren E. Burger: What does it have to do with the spelling?

Mr. Craig Eldon Pinkus: Well, I don't think that it was necessarily his spelling sir.

The final reproduction of the paper need not necessarily --

Justice William J. Brennan: I take this -- was this criticism the subject of any complaint from school or faculty or board or anybody?

Mr. Craig Eldon Pinkus: No, not until this --

Justice William J. Brennan: I hope not.

Mr. Craig Eldon Pinkus: Not until this whole matter began.

In fact Mr. Justice Brennan, the evidence shows that Carl Kelp, the superintendent did not even know what the Corn Cob Curtain was until the day Jeff Jacobs got through to him on the telephone and asked, “May we distribute this publication?”

And it had been distributed through the fifth issue and I'd like to make clear that they only distributed 200 out of the fifth issue and they printed approximately 3,000.

Justice Harry A. Blackmun: (Voice Overlap) say, he was the superintendent, superintendent to what?

Was it principal of this school?

Mr. Craig Eldon Pinkus: No.

Justice Harry A. Blackmun: Superintendent of (Voice Overlap)

Mr. Craig Eldon Pinkus: No.

No, Justice Blackman.

The super -- the principal of Tech High School where Jeff Jacobs went to school said that it -- he didn't know if it was all right but that he should distribute in --

Justice Harry A. Blackmun: But you called him superintendent, I'm merely trying to focus on what he was.

He was the principal of the school?

Mr. Craig Eldon Pinkus: No sir.

Carl Kelp was at the time Jeff Jacobs called him, the assistant principal of the Indianapolis Public School system.

Justice Harry A. Blackmun: Well, why shouldn't an assistant principal of a whole system know whether a paper is being published in a particular school?

Mr. Craig Eldon Pinkus: Well, the record describes that it was his job to keep track of these things and he submitted numerous exhibits that showed various publications that he prohibited.

Furthermore, the rule that we originally litigated against said there shall be no distribution without the express prior approval of the general superintendent.

The general superintendent had delegated this job to his assistant superintendent, Mr. Kelp who is now the general superintendent of the school system.

So it was his job, that's his testimony.

Justice William H. Rehnquist: You've used a couple of words kind of interchangeably it seems to me or perhaps I'm just misunderstood.

Is it fair to say that generally the principal and assistant principal are associated with individual high schools and the superintendent and assistant superintendent are associated with the school system as a whole?

Mr. Craig Eldon Pinkus: That's correct.

Justice Harry A. Blackmun: Mr. Pinkus have used them so interchangeably that's why it's confusing.

Mr. Craig Eldon Pinkus: I appreciate that, I trust it is now clear.

Justice Lewis F. Powell: I take it from what you've been saying that you would agree that it would be appropriate for a school boy to have some rules covering this area.

As I understand your position, you visualize the First Amendment as having three levels of application.

One, to people who are in a high school and above 20; one, to people who are in high school between 15 and 20 and the third application of the First Amendment to people who are not in high school and who are under 13.

We're talking about the high school intermediate level, a First Amendment application.

If you were the superintendent of schools, what recommendation would you make to the school board as to rules that would be constitutional?

Mr. Craig Eldon Pinkus: I would recommend an adoption of rules on the prohibition of obscenities and I think I would be inclined to draw heavily on the definitions used in the Ginsburg case that involved descriptions of various conditions of nudity, descriptions of sexual acts in a degree of detail none of which we have here.

We only have one phrase that approaches that and I would utilize that kind of an approach which I think would be acceptable and would be within the Court's ruling in that area.

Even though there would not be immediate criminal sanctions there would be eventual criminal sanctions as we'd recognize because if a person is expelled, that person is also subject to juvenile process as a truant and so on.

Justice Lewis F. Powell: You have no prior restraint, no prior consultation.

The only limitation would be on obscenity as defined and that definition would not be the Miller definition, but would be closer to what was said in Ginsburg?

Mr. Craig Eldon Pinkus: I think that's correct.

I -- we have never objected to rule against material which is libelous either, I wish to make that clear.

I do have some doubt in my mind about the way in which as a public school would go about enforcing any kind of remedy if they were libel because I think it would be primarily an individual matter of vindication of personal rights of anyone who considered himself to have been libeled.

Justice William J. Brennan: Well, would you apply the New York Times - Sullivan libel limitations?

Mr. Craig Eldon Pinkus: I would indeed Justice Brennan.

Justice William J. Brennan: You would?

Mr. Craig Eldon Pinkus: Yes.

Chief Justice Warren E. Burger: You would reject.

You would say that the First Amendment forbids one of the things that Mr. Justice White suggested, namely a list that could be drawn out of a proscribed words?

Mr. Craig Eldon Pinkus: Yes, regardless of that context --

Chief Justice Warren E. Burger: (Voice Overlap) and all other prior restraints, you would reject?

Mr. Craig Eldon Pinkus: Yes we would.

Chief Justice Warren E. Burger: Very well, thank you Mr. Pinkus.

Mrs. Young, I think you've used all of your time too.

Rebuttal of Lila J. Young

Ms Lila J. Young: I have ten minutes, I believe.

No time?

Chief Justice Warren E. Burger: Well, they haven't informed me correctly here.

I'm not up to date.

No, you've got ten minutes left.

Ms Lila J. Young: Thank you.

First of all the validity of the rules on obscenity are not an issue in this case.

The issue is whether -- first of all, this type of language is obscene as to minors and even if it could not be declared legally obscene as to minors, whether we have a right to do anything about it and we have rules concerning indecent language both prior to restraint rules and subsequent restraint rules, we've always had them.

Also we have a juvenile delinquent statute which defines a juvenile delinquent as one who uses vulgar, obscene, indecent language.

We also have statutes that -- so you cannot contribute to the delinquency of a minor and if we have to set aside a time and place in our schools for the distribution of this filth, then we are contributing to the delinquency of minors.

Also, we have compulsory education under statutes until age 16 in Indiana.

You don't have any choice about that, that is clear.

Also, the ages of students in our high school is 14 to 17, 14, 15, 16 and 17, those are the normal ages of high school students.

Justice William H. Rehnquist: (Voice Overlap) There must be some people once who have skipped a grade (Voice Overlap) --

Ms Lila J. Young: That's right and this is we may have one 13 and we may have a few who fail who reached 20.

But this injunction prohibits us from promulgating rules for instance that threaten any discipline against any student in any school in Indianapolis because of the reaction of any other student to the material.

It just totally wipes out our ability to control any kind of disruption.

Our disruption rule was declared facially void and so we're left really with nothing here and I might point out too that we do not have any double standard in our schools.

We do not have any of these four letter words in the Catcher in the Rye and books of that nature either as required reading in the classroom or in any of our school libraries and I submit that respondents introduce not one shred of evidence to show that any of these books could be found in any of our schools.

They did talk about the Catcher in the Rye but it was --

Justice Potter Stewart: That was the case (Voice Overlap) I think.

Ms Lila J. Young: What?

Justice Potter Stewart: That would be a different and more difficult case if that's brought here if you keep books out of your library.

Ms Lila J. Young: Well we don't -- it's not a matter of keeping them out but we don't have required reading.

We do choose books for lessons.

Justice Byron R. White: This isn't essential for your submission, aren't they?

Ms Lila J. Young: All I'm saying though is that no double standard exists in our schools which they were saying and I don't think it's hypocritical to shield children from exposure to this language in school simply because other people use it.

This argument would imply that everybody has to be reduced to the lowest common denominator anyway.

It could be used also to justify any kind of misconduct and I don't think we should have to list a bunch of four letter words.

I think that's a little suggestive for children to try to list exactly what they can and can't say.

I think we have to teach basic levels of decency and I think we have to have a little bit of trust and faith in our school administrators who deal with children everyday year after year.

They have expertise.

They should be able to teach what is right and wrong and they can't teach it if they can't have any control over it.

It would be hypocritical and inconsistent to try to preach one thing in the classroom while the children are out in the halls distributing this type of language and the children would recognize this inconsistency too.

I think there are three crucial factors involving all of these issues that you have to keep in mind when you make this decisions.

First of all, we are dealing with children.

We're not dealing with adults and for a good reason, the law, all facets of the law have always been applied differently to children.

I think this Court has recognized this fact.

Also the second crucial factor is that we are not concerned with any regulation of conduct in the community at large, but only in the school house, in the elementary and high schools.

These factors, you cannot equate the community at large to our elementary and high schools.

The physically confining nature, the purposes and the needs of the school, the fact that children are required to attend all of these circumstances dictate far different regulations, regulations which might not be acceptable in the community at large but they are very necessary in order to provide an atmosphere so that learning can take place in our schools and that's the purpose of our schools, to teach and they can't teach unless they have rules.

Also, the third basic factor that underlies all of these rules and issues is that we are not here concerned with criminal statutes.

There are no criminal penalties here attached.

Students cannot be fined, they cannot be imprisoned, they cannot be subjected to probationary supervision.

They cannot be disenfranchised.

They can be subjected only to mild disciplinary majors and I submit this is a fundamental difference.

We are not here defining crimes.

We're defining what proper conduct in the school house, not beyond the school house gates, we have no regulations concerning that.

So I question the relevancy of many of these cases that concern the community at large and also concern criminal matters.

We shouldn't have to spend the time going down elements and having hearings and everything because we have an inherent responsibility to provide an atmosphere where you have all these children grouped together, not by choice and I think the parents have something to say about this too.

They expect generally accepted standards to be adhered to by their children in the schools and I think the state has a basic fundamental interest in requiring them to adhere to these acceptable standards of conduct because if they aren't going to be taught in schools, where are they going to be taught at?

Justice Potter Stewart: These rules apply only inside the school, don't they?

In rule 11.05 for example says, “In any school --

Ms Lila J. Young: Basically --

Justice Potter Stewart: One of them does say --

Ms Lila J. Young: Yes.

Justice Potter Stewart: -- in the school or on the campus.

Ms Lila J. Young: That's right and many of them of course would apply on the campus which in the city school amounts to very little.

Justice Potter Stewart: Yeah, right.

Ms Lila J. Young: But I want to mention too about sales and solicitations, that's a very important issue in this case.

And I think that we've listed so many reasons in our brief why we need a rule prohibiting sales and this of course applies to sales of all products including literature.

We didn't single out literature.

We've always had a rule prohibiting sales and solicitations.

Originally it was a rule of prior approval, now it's a basic general rule prohibiting all sales to avoid charges of discrimination and other problems, but basically --

Justice Harry A. Blackmun: But you would avoid sale of copies of the constitution of the United States?

Ms Lila J. Young: I would what?

Justice Harry A. Blackmun: You would proscribe or do proscribe the sale of copies of the constitution of the United States?

Ms Lila J. Young: That's right.

We would --

Chief Justice Warren E. Burger: And the bible.

Ms Lila J. Young: Right.

We don't believe that this is a school purpose to either -- to turn into a marketplace and once you allow some sales of some products, then where do you draw the line?

Justice Byron R. White: What do you suppose the students should do to raise their money to publish a paper of the kind that even your school would think was a good idea?

Ms Lila J. Young: Well, we have an exception in our sales rule that if anything is for a school purpose like the band or a student newspaper, we do allow that type of sales, but that's the only exception that we've made.

Justice Byron R. White: You don't -- you wouldn't permit solicitation or contributions to support the school?

Ms Lila J. Young: Not inside the school, they can do it beyond the school house gate.

Justice Byron R. White: But you would permit sale of the paper?

Ms Lila J. Young: We would permit no sales of any products including papers.

Justice Byron R. White: Well then, how do you raise the money for the student paper?

Ms Lila J. Young: For our -- you mean, the school student paper?

Justice Byron R. White: Yes.

Ms Lila J. Young: Well, we have home room periods and it depends on the various schools.

Not all schools --

Justice Byron R. White: But -- how about -- how are they supposed to pay for the -- pay the cost of producing a student newspaper?

Ms Lila J. Young: The school would pay the student -- the school student newspaper.

How the students would develop their own private commercial enterprise would be up to them.

They would have to do that outside of the school.

Justice Byron R. White: But they couldn't sell them on the school?

Ms Lila J. Young: That's correct.

They could not have any actual sales transactions during the school hours in the school.

They'd have to do that beyond the school house gates and we did not make an exemption for literature and I don't believe this Court's decisions for instance in Maabe versus White Plains require separate special rules and exemptions for the product of literature.

I believe that the board should be allowed the flexibility and reasonable breadth that is necessary when it's prescribing rules of student conduct.

And therefore I believe that all our rules should be upheld since they are vitally necessary to achieve basic educational objectives and achieve a proper atmosphere so that any learning can take place.

Chief Justice Warren E. Burger: Thank you Mrs. Young.

Thank your Mr. Pinkus.

The case is submitted.