(dissenting):
I respectfully dissent. First, and foremost, I reject the overall thesis of the district court, as acquiesced in by the majority opinion, that a federal court has jurisdiction under the Civil Rights Act to review student discipline by school officials. I generally agree with the district court’s statement that it should not assume jurisdiction in student disciplinary cases under the Civil Rights Act unless there appears one of the following :
“(1) A deprival.of due process, that is, fundamental concepts of fair play;
“(2) Invidious discrimination, for example, on account of race or religion ;
“(3) Denial of federal rights, constitutional or statutory, protected in the academic community; or
“(4) Clearly unreasonable, arbitrary or capricious action.” 290 F.Supp. at 631.
However, I reject the district court’s procedural approach of reviewing the sufficiency of the evidence of the disciplinary proceedings conducted by school officials. The trial court has posited this test to be:
“A federal district court will in appropriate circumstances review a student disciplinary proceeding to determine if the challenged disciplinary action was on grounds lacking support by any substantial evidence.” 1 290 F.Supp. at 631.
In an action under 42 U.S.C. § 1983 of the Civil Rights Act, federal jurisdictional proof must relate to the denial of a federal right under color of state law. A complaint filed under civil rights law does not embrace a “review” to determine the existence of “substantial evidence” of any state proceeding. This approach attempts to place state school officials in the same role as a federal administrative agency subject to the Administrative Procedure Act, 5 U.S.C. § 551 et seq.,(1966). See e.g., the same standard of review this court recently applied to the findings of the Federal Aviation Administrator. Doe v. Department of Transp., 412 F.2d 674 (8 Cir. July 16, 1969). The district court’s theory of review in essence misconstrues the very purpose of the civil rights legislation as it relates to state action. The Civil Rights Act was not intended to broaden the Administrative Procedure Act so as to include review of state agencies.2 The Administrative *1091Procedure Act can only encompass “authority of the Government of the United States.” The majority opinion here treats the district court’s opinion as setting forth “findings of fact.” However, it is clear that the district court’s opinion sets forth merely a “summary” of the evidence in the school proceeding and the legal conclusion that there was “substantial evidence” to support the president’s findings.
A civil rights action under § 1983 is a separate proceeding which requires a trial de novo on the claim relating to a denial of federal rights. Cf. Barker v. Hardway, 399 F.2d 638 (4 Cir. 1968), cert. denied, 394 U.S. 905, 89 S.Ct. 1009, 22 L.Ed.2d 217 (1969). It does not authorize “appellate” review. The parties may choose to furnish evidence by stipulation from prior transcripts in extra or quasi-judicial proceedings. However, in an action filed under § 1983 a district judge is not bound by a prior findings of fact of any state official. It would be incongruous to say that the state determination of the constitutionality of its own action can bind a federal court even though there be “substantial evidence’^ to support the state official’s finding. This would make the “state-defendant,” who is the “accused,” the self-arbiter and “judge” of its own conduct. The Civil Rights Acts do not authorize a federal district court to decide a plaintiff’s claim on the basis that there is or is not “substantial evidence” supporting the finding of a state official. A federal district court is clearly obligated to make its own findings from the evidence submitted. In an action under § 1983 a plaintiff has the burden of proving his allegations under the same standards as in any other civil ease. The district court’s mission is to make findings of fact and conclusions of law as to whether in fact or in law state action has denied to a plaintiff any federal right. There is a fundamental difference between a court sitting in review to pass upon the “substantiality” of evidence and its acting as the fact finder itself. Cf. Universal Camera Corp. v. NLRB, 340 U.S. 474, 480 n. 12, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Federal courts do not belong in the hierarchy of state educational institutions as a supreme board of review to weigh evidence as to an institution’s disciplinary rulings. Public education is within the control of state and local officials and should remain there. We are in agreement that principles of federalism do not justify federal court intervention in the daily operation of school systems and the resolution of problems which are remote from federal rights! These principles should make clear that federal courts do not possess the competence in the field of public education to moralize, lecture or otherwise review the evidence resulting in discipline of students by school officials. This is not the purpose of the Civil Rights Act. To hold that it is, truly arrogates to federal courts that which is a function of the states themselves. And conversely, but of greater significance, a federal judge should not yield his jurisdiction or competency to protect fundamental liberties of individual citizens to a school administrator.
If there existed on the present record conflicting evidence as to the denial of a federal right, I would remand these cases to the district court for a finding of fact and judgment on the merits. This would require specific findings of fact by the district court as to whether a federal right was improperly denied by state action. I would recommend a direction that the trial court’s findings are not to constitute in any form a con-clusory review as to the sufficiency of the evidence in the school proceedings. However, based upon the evidence here, and for different reasons and results, I do not find a remand necessary in either the Esteban or Roberds case.
*1092In the Esteban case, based upon the record before us, there is no evidence involving the denial of a federal right. According to Dr. Lovinger, Esteban was expelled from a state school for (1) insubordination growing out of a request by a school official to have Esteban return to his dormitory at a time when there had been campus disturb-anees nearby, (2) using, at that time, vile and obscene language toward college officials and (3) threatening a resident assistant of the college. There exists no denial of federal rights in these facts. There cannot exist a claim that there is “no basis in fact” to support the above charges in view of Esteban’s own admission of these facts. Cf. Freeman v. Gould Special Sch. Dist., 405 F.2d 1153, 1161 (8 Cir. 1969) (dissenting opinion).3 Esteban claims he was charged with participation in the unlawful demonstration and that there exists no evidence to support this charge. However, it is clear that his dismissal was actually based upon the incidents (also charged) following Dr. Meverden’s request that he return to his dormitory. Esteban, although asserting a denial of First Amendment rights has not shown any proof that he was denied any freedom to speak or of assembly. He asserts he was not an active participant in any disturbance and therefore concludes that it was improper for school officials to order him to his dormitory. Dr. Meverden’s assigned job was to break up the demonstration which had involved violent acts by some students. In order to accomplish this he requested students to go to their dormitories. Such action by university authorities is not so unreasonable that it may be considered as violating First Amendment rights. If a state school chooses to discipline a student for conduct disrespectful to faculty members, there is no federal right involved.
This brings me to Roberds. It is once again clear that the district court’s judgment was erroneously premised upon its review as to the sufficiency of the evidence to support Dr. Lovinger’s finding. Again I submit that the trial in the district court should have been a de novo determination as to whether or not Roberds’ federal rights were denied. Plaintiff simply had the burden of proving, by the preponderance of evidence, that his federal rights were denied. No party need show the presence or absence of “substantial evidence,” whatever that term may mean here, to support the president’s finding. Where basic constitutional values are involved a federal court is not invading the realm of school administration but dealing with rights which attach to every citizen. Justice Jackson made this clear in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 639-640, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628 (1943):
“Nor does our duty to apply the Bill of Rights to assertions of official authority depend upon our possession of marked competence in the field where the invasion of rights occurs. * * * we act in these matters not by authority of our competence but by force of our commissions. We cannot, be*1093cause of modest estimates of our competence in such specialties as public education, withhold the judgment that history authenticates as the function of this Court when liberty is infringed.”
As set forth in Tinker v. Des Moines Ind. Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), school officials may not deprive students of basic liberties unless the exercise of that liberty disrupts classwork or involves substantial disorder or constitutes an invasion of the rights of others. As the Supreme Court said:
“Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.” 393 U.S. at 511, 89 S.Ct. at 739.
However, once again it should not be necessary to remand for proper findings. The evidence is undisputed as to the events surrounding Roberds’ conduct. There is no evidence whatsoever to show that Roberds was a “participant” in any unlawful disturbance or illegal demonstration. The district court concluded that “[f]rom all the evidence Dr. Lov-inger could reasonably infer Roberds was a participant and not a mere, or innocent, spectator.” 290 F.Supp. at 631. The difficulty with this conclusion is that Dr. Lovinger, who conducted the only evidential hearing, found just to the contrary.4
Dr. Lovinger held:
“Under these circumstances Mr. Ro-berds has repeatedly admitted attending the demonstrations on both nights but qualifies his attendance as being that of a spectator and the evidence does not show otherwise. It is apparently the. former student’s position that his presence at the disturbances as a spectator does not constitute a violation of the College regulations relative to mass gatherings. I am of the opinion that it does.” (My emphasis.)
This conclusion was in part consistent with the university’s regulation which read:
“Mass Gatherings — Participation in mass gatherings which might be considered as unruly or unlawful will subject a student to possible immediate dismissal from the College. Only a few students intentionally get involved in mob misconduct, but many so-called ‘spectators’ get drawn into a fracas and by their very presence contribute to the dimensions of the problems. It should be understood that the College considers no student to be immune from due process of law enforcement when he is in violation as an individual or as a member of a crowd.” (My emphasis.)
The president commented on this regulation :
“At the outset it should be made clear that the very purpose of the regulation is to prevent an unauthorized gathering of students which gatherings are by their very nature made up of a great number of spectators. It is the spectators that create the mass which in turn leads, as in this case, to incidents of unruly and violent action. If there were no so called spectators there would be no mass gathering.
* * *• * * *
“Furthermore, the regulation in this instance makes it clear that spectators will be considered to be contributing to the mass gathering and will be *1094subject to similar disciplinary action.” (My emphasis.)
The difficulty with President Loving-er’s viewpoint is, in part at least, that it is basically contrary to constitutional principles of free speech and free assembly.
However, the district court points out as part of the “substantial evidence” to sustain Dr. Lovinger’s supposed conclusion that Roberds was a “participant” and not a “spectator” the following statements:5
(1) “Earlier he [Roberds] had inquired as to what would happen if he were to be a participant. This is indicative of his interest in being a participant.”
(2) “He wrote a letter to Representative Cantrill indicating he was considering action not consistent with that of being a mere spectator.”
(3) “He witnessed the unlawful and destructive actions over a substantial period of time on two evenings and did not withdraw and disassociate on either of them from the unruly and destructive group.” (My emphasis.) 290 F.Supp. at 631.
I respectfully submit that none of these observations are evidence of “participation” by Roberds in an unlawful disturbance which in any way “disrupts classroom work” or “involves substantial disorder” or is an “invasion of rights of others.” Tinker v. Des Moines Ind. Community School Dist., 393 U.S. 503, 513, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).
The majority opinion adds to the evidence the finding that Roberds “talked it up” by talking to others in the crowd. The evidence reflects that Roberds attended the demonstration for one-half hour one night and one hour the next. Roberds’ supposed admission is his candid statement that he “mentioned my disgust with the college, and we talked, as the people I had talked to had the same feeling.” Apropos here is the statement in Tinker, supra, at 511, 89 S.Ct. at 739.
“In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. As Judge Gewin, speaking for the Fifth Circuit said, school officials cannot suppress 'expressions of feelings with which they do not wish to contend.’ Burnside v. Byars, supra, 363 F.2d at 749.”
*1095The only evidence as to Roberds’ conversations contradict the “finding” of the majority that he in any way “talked it up.” Roberds testified:
“On the nights of March 29 and 30, I was present at the demonstrations as a spectator. I did not participate in any activity. I did not cause any damage to any property. I encouraged no one to cause any damage to any property. I was merely a spectator. I feel I violated no state, local or federal laws.
“Mr. Achtenberg: Did you at any time advise Dean Chalquist that you intended to participate in any such demonstration?
“Stephen Roberds: No, I did not.
“Mr. Achtenberg: And did you participate in any such demonstrations?
“Stephen Roberds: No I did not.”
(My emphasis.)
This is no evidence that Roberds encouraged or incited any act of misconduct which in any way “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” Tinker, supra, at 509, 89 S.Ct. at 738.
Dr. Lovinger clearly had the authority to warn students that their participation in an unruly demonstration would subject them to disciplinary action. His observation and warning that students as spectators are often drawn into unruly demonstrations and that when they so participate they would be disciplined is beyond doubt a proper one. However, to suggest by regulation that anyone present at any demonstration which might become unruly may be punished, smacks of “prior restraint” and cannot be condoned. “[A] state may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions.” Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed. 1213 (1940). “Prior restraint” on free expression and assembly is not permissible in any form. Gregory v. City of Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969), and see particularly J. Black’s concurring opinion; Carroll v. President and Commissioners, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1944) ; cf. Hammond v. South Carolina State College, 272 F.Supp. 947 (D.S.C.1967). A university or college cannot constitutionally place a ban on all student demonstrations simply because they may incite some students to unlawful Acts. As the Supreme Court stated in Tinker, supra at 508-509, 89 S.Ct. at 737:
“But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom or on the campus, that deviates from the views of another person, may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1959); and our history says that it is this sort of hazardous freedom — this kind of openness— that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious society.”
In Thomas v. Collins, supra, the State of Texas attempted to prohibit union solicitation by distinguishing it from other forms of speech. This was accomplished by examining the understanding of the listener. The Supreme Court quickly reacted, as we should here:
“[This] puts the speaker * * * wholly at the mercy of the varied understandings of his hearers. * * * Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. * * * The effort to observe it could not be free *1096speech, free press, or free assembly, in any sense of free advocacy of principle or cause. The restriction’s effect, as applied, in a very practical sense was to prohibit.” 323 U.S. at 535-536, 65 S.Ct. at 325.
To hold each demonstrator or spectator at any mass demonstration responsible for the conduct of every other person present would place in jeopardy all rights of individuals to gather for peaceful petition. No individual could determine in advance whether a demonstration would be peaceful. As has been observed, “The facts in any case involving a public demonstration are difficult to ascertain and even more difficult to evaluate.” Carroll v. President and Commissioners, 393 U.S. 175, 183, 89 S.Ct. 347, 353, 21 L.Ed.2d 325 (1968). A peaceful demonstrator would always be faced with the alternatives of remaining at home or risking vicarious punishment for the violent actions of other demonstrators or even onlookers. This was recognized in Barr v. City of Columbia, 378 U.S. 146, 150, 84 S.Ct. 1734, 1737, 12 L.Ed.2d 766 (1964), where the Court said of a group of peaceful demonstrators:
“[T]he only evidence to which the city refers to justify the breach-of-peace convictions here, and the only possible relevant evidence which we have been able to find in the record, is a suggestion that petitioners’ mere presence seated at the counter might possibly have tended to move onlookers to commit acts of violence. * * * [we reverse the conviction] * * * because of the frequent occasions on which we have reversed under the Fourteenth Amendment convictions of peaceful individuals who were convicted of breach of the peace because of the acts of hostile onlookers * * * ”
Presence alone, without any showing that the individual encouraged, incited, promoted or took part in a violent disturbance will not sustain a finding that he is a rioter. Cf. Rollins v. Shannon, 292 F.Supp. 580 (E.D.Mo.1968); Hunter v. Allen, 286 F.Supp. 830 (N.D.Ga. 1968); People v. Bundte, 87 Cal.App.2d 735, 197 P.2d 823 (1948). See also Judge Oliver’s opinion in Scoggin v. Lincoln Univ., 291 F.Supp. 161 (W.D.Mo. 1968). To hold otherwise, in my opinion, violates every basic principle of due process the law is known to embrace.
I respectfully submit the evidence supports only the finding that Dr. Lovinger made: that Roberds was a mere spectator and was merely present at the demonstration. Furthermore, the evidence is clear that the school did not discipline Roberds for being a participant in an “unlawful mass gathering” (although he was so charged) but for simply being present at the time others engaged in alleged unlawful acts. Herein should lie the importance of this decision. Mere presence at a demonstration is not and cannot be the basis for university regulations which attempt by “prior restraint” to prevent demonstration itself. Nor can it be the basis for state exclusion from educational opportunity.
In my opinion this constitutes a governmental encroachment on the exercise of free speech and free assembly and is incompatible with the Constitution of the United States. Roberds should be granted appropriate relief.
. Presumably, this last statement is based upon the district court’s “General Order On Judicial «Standards Of Procedure And Substance In Review of Student Discipline In Tax Supported Institutions Of Higher Education.” 45 F.R.D. 133 (1968). This same standard of review is erroneously compounded in other cases from the same district, see e. g., Seoggin v. Lincoln Univ., 291 F.Supp. 161 (W.D. Mo.1968).
. One law review authority indicates that “It is well settled 'that the student has a right to appeal the determination by the university adjudicatory system to a state or federal court for review.” Johnson, Constitutional Rights of College Students, 42 Texas L.Rev. 344, 361 (1964). *1091The author relies upon Davis, Administrative Law § 7.10 (1958). Davis does not support this view nor does the federal case cited: Dixon v. Alabama State Bd. of Educ., 294 F.2d 150 (5 Cir. 1961). Dixon is based solely upon § 1983 and the prerequisite allegation of denial of federal rights by state action.
. If the district court’s “substantial evidence” test is intended as one that simply seeks to determine whether the state action had “basis in fact,” then the district court has still procedurally erred. A do novo trial under the Civil Rights Act on whether there is “no basis in fact”* to support a school expulsion, does not involve a review of the sufficiency of the evidence in the school proceedings. A de novo trial again requires separate factual findings by the federal district court. Furthermore, a determination that there is or is not a “basis in fact” is a far different test than a judicial inquiry as to whether there exists “substantial evidence.” See Dickinson v. United States, 346 U.S. 389, 396, 74 S.Ct. 152, 98 L.Ed. 132 (1953). See discussion in Davis, Administrative Law § 29.07 (1958).
This assumes, of course, that an allegation of “no basis in fact” for state action constitutes a stated claim for relief under the Civil Rights Act. The majority opinion in Freeman v. Gould Special Sch. Dist., 405 F.2d 1153 (8 Cir.1969), disagrees with this view.
. It is significant, to me at least, that the trial court is not making an independent finding of “participation,” but concluding that there was “substantial evidence” to support Dr. Lovinger’s finding. If the trial court’s review was procedurally sound, which I dispute, it nevertheless would be in error, since as discussed, Dr. Lovinger concluded that Roberds was nothing more than a spectator. However, the issue teas not whether the evidence would allow Dr. Lovinger to find Roberds was a participant in unlawful acts but whether in fact Roberds was or was not one.
. The opinion of the trial court likewise relies upon Roberds’ testimony in the first hearing. The district court states in his opinion:
“Although later in the same hearing lie said he was only a spectator, he testified :
“ ‘Q. And Dr. Lovinger asked you if you were there and participated in these demonstrations on March 29th and March 30th, did he not? A. Yes, sir.
Q. And you told him that you had, did you not? A. Yes, sir. Q. And you are telling this Court that now, are you not? A. Yes.’ ” 290 F.Supp. at 631 n. 9.
However, Roberds’ statement cannot in all fairness be treated as an admission. The following questions and answers immediately follow the above portion quoted in the transcript:
“THE COURT: Excuse me. So that there is no mistake about it, the question was that you were present and participated. Is that what you told him?
“THE WITNESS: No.
“(By Mr. Wesner) All right. What did you tell him?
“THE COURT: What did you tell him? What did you tell both of these gentlemen? Start with the first.
“THE WITNESS: I told Dr. Chal-quist that I was present both evenings. I told President Lovinger that I was present both evenings.
“(By Mr. Wesner) And what did you tell him that you did if anything, so far as the demonstrations were concerned?
“THE WITNESS: I was a spectator, I told both men.”