(dissenting) :
This is a civil rights ease presenting five issues: It originated in the integrated Lebanon High School near Nashville, Tennessee. It was heard before the Nashville Division of the United *222States District Court for the Middle District of Tennessee. The District Judge found no constitutional violations on any issue and dismissed plaintiffs’ complaints.
The two named plaintiffs are Charles Caldwell and his mother, Mrs. Marcus Caldwell. Charles in January of 1969 was a member of the high school band and a member of a subsidiary informal organization called the “Pep Band” which played at pep rallies before athletic events. At such a pep rally on January 3, the Pep Band played “Dixie.” The key allegation in the complaint stated:
“(13) When the band played ‘Dixie’ on January 3, 1969, the white students showed great excitement, as is usual when it is played at Lebanon High School and at other high schools in Tennessee. A group of approximately twelve to fifteen white students began shouting derogatory racial comments in unison, such as ‘Nigger, go back and pick that cotton.’ ”
Defendants’ answer denied all racial connotations.
It is undisputed that Charles refused to play, stepped out of the band, and accompanied by his mother, left the auditorium. The record indicates that this became a major episode in the school, with students and faculty talking about both mother and son.
Charles was expelled from the band. Twenty-eight days after the “Dixie” episode Mrs. Caldwell’s employment as a teacher-aide was terminated.
In March 1969 the Caldwells filed this action as a class action, seeking both injunctive relief, a declaratory judgment and, in Mrs. Caldwell’s case, money damages for illegal discharge. The specific relief requested was reinstatement of Charles in the band, with a declaration that he did not need to play “Dixie” and restoration of Mrs. Caldwell’s employment with backpay.
Defendants responded to these two issues by claiming that Charles Caldwell was expelled from the band for violating a nondiscriminatory rule (against leaving the band) and that Mrs. Caldwell was fired for inefficiency.
Additionally, after taking of depositions, plaintiffs amended their complaint by adding a count protesting religious instruction, which they claim was given during chapel services in the Lebanon High School during school hours in violation of the establishment clause of the First Amendment. The defendants responded to this portion of the complaint by admitting that there were ministers from time to time who spoke at the high school convocations and did lead prayer or preach on bible topics. The defendants stated that attendance at the chapel exercise was entirely voluntary and there had been no prior complaint about the content of the programs.
If these three issues were not sufficient, a fourth was added after the District Court hearing was concluded. (The only hearing conducted was a hearing on plaintiffs’ motion for a temporary injunction.) Following that hearing and well before the District Judge’s opinion and judgment were entered, defendants filed a 195-page exhibit consisting of unsworn statements by teachers and students about the Caldwells and the “Dixie” episode. It is conceded that appellants were not served with this material, nor informed that it had been filed, and learned about it only after the Judge’s opinion and judgment had been released and upon inspection of the court file. But the document is a part of the case file as it has been forwarded to us. And appellees brief before the District Judge relied in part upon this “exhibit.”
On May 7, 1969, the District Judge decided the case, holding that Charles had not been expelled from the band for refusing to play “Dixie” but had been expelled because he had violated a well-known and on its face nondiscriminatory rule that no one could walk out of the band without suffering the penalty of being denied readmission. He also held that Mrs. Caldwell’s discharge was due to inefficiency in her work and the com*223plaints which had been levied about her. He granted summary judgment in favor of the Defendants without taking detailed' testimony or making findings of fact on the claim that the Lebanon High School chapel exercises offended the First Amendment provision against establishment of religion. In this regard he held that the Caldwells did not have standing to sue.
The fifth issue (lipón which my brothers rely for disposition of most of the issues) was raised after appellate briefing and argument by appellants’ motion to dismiss this appeal for mootness because the Caldwells have now moved to Nashville.
At the outset then we must determine whether the case is moot because the Caldwells and their son have now moved to Nashville and he has registered in another high school. To me it seems clear that the problems of this case are public issues of a continuing and recurring nature both in this high school and many others subject to recent integration orders. In the words of the Supreme Court, the
“controversy * * * remain [s] to be settled * * *. The defendant is free to return to his old ways. * * * [There is] a public interest in having the legality of the practices settled * * *. For to say that the case has become moot means that the defendant is entitled to a dismissal as a matter of right * * *. The courts have rightly refused to grant defendants such a powerful weapon against public law enforcement.” United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953).
The fact that Charles may not be re-entering Lebanon High School does not terminate this court’s jurisdiction over the protested application of the band exclusion rule. Carrol v. President & Com’rs of Princess Anne, 393 U.S. 175, 179, 89 S.Ct. 347, 21 L.Ed.2d 325 (1969); Division 1287 of Amalgamated Ass’n of St. Elec. Ry. and Motor Coach Employees of America v. Missouri, 374 U.S. 74, 83 S.Ct 1657, 10 L.Ed.2d 763 (1963); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911). Nor do I think it ends the controversy over the chapel exercises. The band expulsion rule and the religious chapel exercises are “unresolved disputes.” Division 1287 of Amalgamated Ass’n of St. Elec. Ry. and Motor Coach Employees of America v. Missouri, supra, at 78, 83 S.Ct. 1657. Of course Mrs. Caldwell’s complaint alleging discriminatory discharge and claiming backpay cannot by any logic be considered moot.
Additionally, while I agree with much of the majority opinion analysis of the deficiencies of Plaintiffs’ class action claims, I think that they should have been read, at a minimum, as stating a class action for all Negro students in the band at Lebanon High School.
In disposing of the basic issues I would deal first with the District Judge’s grant of summary judgment on the establishment of religion complaint where he held Plaintiffs did not have standing to sue. This holding is not consistent with settled law involving the question of standing. A high school student and his parent have sufficient interest to raise the establishment issue; School Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). See also Flast v. Cohen, 392 U.S. 83 (1968). In the Schempp case the Supreme Court held:
“The parties here are school children and their parents, who are directly affected by the laws and practices against which their complaints are directed. These interests surely suffice to give the parties standing to complain.” 374 U.S. at 224 n. 9, 83 S.Ct. at 1572.
In view of the incomplete record on the establishment issue, summary judgment *224was inappropriate and the case should be reversed and remanded for trial on the standards of Schempp, supra.
I also believe that the District Court judgment should be reversed on the question of Mrs. Caldwell’s discharge. On asserted First and Fourteenth Amendment issues such as these we are not allowed to accept the findings of the District Judge solely because we do not consider them “clearly erroneous” within the terms of Rule 52 Fed.R.Civ.P. We are required to make our own independent review of the entire record. Pennekamp v. Florida, 328 U.S. 331, 335, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946); Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Jacobellis v. Ohio, 378 U.S. 184, 189, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964).
The testimony of the school principal as contained in the record clearly shows that on the heels of the “Dixie” episode, the principal was concerned because teachers were threatening to quit because of Mrs. Caldwell’s unrebuked participation in the “Dixie” episode. The principal had a conversation with Mrs. Caldwell in which he did rebuke her for participating in Charles’ walkout. All this strongly suggests that Mrs. Caldwell was not dismissed because of work deficiencies alone but that in fact the “Dixie” incident was the triggering episode.
Over and above that, plaintiffs alleged and defendants concede that Mrs. Caldwell was the only Negro teacher or teacher-aide in the Lebanon High School, and that with her discharge, there were none.
In my judgment this record indicates that absent Mrs. Caldwell’s public expressions of sympathy with her son’s protest against playing “Dixie,” she would have continued in her employment at least until the end of the school year. It seems clear to me that Mrs. Caldwell violated no school rules in her expressions of sympathy and that they were protected by the First Amendment. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 676, 17 L.Ed.2d 629 (1967). I would remand for the computation and entry of a backpay judgment for that period and for taking of proofs on any other damage claim related thereto.
The most difficult issue in this case is the one which gave birth to this litigation- — Charles Caldwell’s walkout on the playing of “Dixie” and his subsequent expulsion from the band. In my view a fair determination of the facts involved in this episode is a condition precedent to determining whether Charles’ walkout was a constitutionally protected response to the racially inspired harassment alleged in the complaint or whether it was, as Defendants contend, simply an unwarranted violation of a nondiscriminatory rule nondiscriminatorily applied. The District Judge made no findings on the harassment claim. In addition the introduction of 195 pages of extra-judicial comment, much of it bearing on these very questions, seems to me to have so prejudiced the fairness of the hearing as to require vacation of this judgment and remand for new trial of these issues.
The guidelines for decision in that new hearing are set forth, at least in part in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). In Barnette the United States Supreme Court held that the state of West Virginia could not expel from its schools students who declined on grounds of conscience to salute and pledge allegiance to the American flag.
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
*225“We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” 319 U.S. supra at 642, 63 S.Ct. at 1187.
If the First Amendment protects against state compulsion to pledge allegiance to our country’s flag, it must also protect from state expulsion a student who on conscience grounds refuses to play a song which became the marching song of the one nearly successful attempt to overthrow the government of the United States by force and violence.
But, of course, as the District Judge and my colleagues point out, Charles Caldwell was expelled from the band not for refusing to play “Dixie” but for walking out. Thus before this court passes on his expulsion there should first be a factual resolution of whether, as charged by Plaintiffs and denied by Defendants, the playing of “Dixie” at Lebanon High School inspired and was accompanied by shouts of “Nigger, go back and pick that cotton.”
It seems entirely possible to me that the state might be able to command Charles Caldwell to stand still while others played “Dixie” as a part of a normal music program whether he participated in playing it or not. But if in fact the attendant circumstances made the playing of “Dixie” at Lebanon High School a method of racial harassment, the U. S. Constitution would certainly protect his right peaceably to walk away from such an episode without being deprived of part of his education. In my judgment the equal protection clause of the Fourteenth Amendment commands no less than this. McLaurin v. Oklahoma State Regents for Higher Education, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149 (1949).
I would reverse and remand for further proceedings in accordance with this opinion.