dissenting:
Except insofar as the judgment of the district court is affirmed, I respectfully dissent. It is my opinion that this Court should not find fault with the district court’s approach to or disposition of this case. I think that the judgment of the district court should be affirmed and that the affirmance could well be based upon the judge’s able opinion and order published in 327 F.Supp. 528-534. The district judge faced a live controversy in which racial strife might be either aggravated or lessened. Two hundred fifty to three hundred black pupils had been “excluded” from attending high school from Wednesday, March 24, to Tuesday, March 30, more than three full school days, and most of them remained indefinitely so “excluded.” Judge Justice acted promptly and firmly to order their re-admittance and to forbid their further punishment. Admittedly, there have been no “problems because of the cheerleader walkout since the students returned.” (App. 206). That seems to me a strong indication of the wisdom of the district judge’s order. He had lived with the friction between blacks and whites for some seven months since he had been attempting to establish a unitary school system, and to that end had ordered the previously all-black high school closed. Before acting in the present controversy, he conducted a full and fair hearing and was in far better position at that time to pass judgment than are we appellate judges a year later. It was within his sound judicial discretion to grant the plaintiffs’ application for preliminary injunction, and, in my opinion, the circumstances are not such as to impel us to the conclusion that he abused his discretion.1
I think that the district court’s findings of fact2 are certainly not clearly erroneous. Evidently the majority does not agree, for it spends several pages in restating the facts. The net result of that restatement, with the exception of a gloss of sympathetic understanding toward the school authorities, is one minuscule correction of the district court’s findings.3 To my way of thinking even that correction becomes immaterial when the time of “exclusion” awaiting interview is properly considered as a period of “punishment.” See my footnote 7, infra. Any further discussion of the facts in this dissenting opinion would be of no precedential value, and I therefore proceed directly to a discussion of some of the principles of law.
Since the school officials relied upon the applicable written regulation quoted *148in footnote 6 to the majority opinion, there would seem to be no occasion for this Court to decide whether such a regulation was essential. Nonetheless the majoi'ity devotes a long paragraph to that subject and concludes: “Thus, wholly apart from the regulation, the school was authorized to act with regard to a mass refusal to attend classes.” I do not agz'ee.
Confining the discussion to what is here involved, that is to a walkout and absence of one day, for which the penalty imposed is suspension plus probation on condition that “ * * * if I violate any school order after this date, I will be subject to permanent expulsion for the remainder of the school year,” the punishment is too severe to be justified on any concept of inherent authority vested in the school officials. I think that the district judge had the better view when he said: “Precision of regulation is essential since the state may regulate in this area only with narrow specificity, NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).” 327 F.Supp. 533, approved in Gooding v. Wilson, 404 U.S. -, 92 S.Ct. 1103, 31 L.Ed.2d 408, decided Mar. 23, 1972. Professor Wright takes the position that specific rules are desirable and that they may be constitutionally required in cases like this of speech oriented conduct (see 22 Vanderbilt L.Rev. 1064-1067), and further that, “For these reasons, I think it no overstatement to say that the single most important principle in applying the Constitution on the campus should be that discipline cannot be administered on the basis of vague and imprecise rules.” (p. 1065). No rule at all is certainly the ultimate in vagueness and imprecision. In the context of school authorities’ attempting to regulate speech related activities, we should not fault the district judge for his approach in terms of the written regulation and its validity vel non. I agree with his carefully reasoned opinion (see 327 F.Supp. at 532-535) that the pertinent regulation suffers from the defects both of vagueness and of being overbroad.
More clearly, however, there was a total failure to comply with the school’s own regulations governing suspensions. Indeed the majority so concedes “to the extent that they imposed penalties greater than three-day suspensions”:
“The school officials considered that they were acting under the procedure for suspensions of three days or less, and, to the extent that they imposed penalties greater than three-day suspensions, we agree with the District Court that the regulations were not followed. Thus it was not proper to impose probation or the exposure to future permanent expulsion for violation of any other school rule.”
Majority opinion p. 144. In every case of a student absent because of the walkout, the penalty imposed at the end of the required interview was greater than a three-day suspension because every such student and his or her parent or guardian were required to sign the following form:
“JOHN TYLER HIGH SCHOOL
“Date: __
“I,-, upon being readmitted to
Student
John Tyler High School, understand and agree that I am on probation. Therefore, if I violate any school rules after this date, I will be subject to permanent expulsion for the remainder of the school year.
Student’s Signature
Parent or Guardian’s Signature
Principal”
(App. 586, and 145, 146.)
Thus, potentially the probation could be more severe than the added three days’ suspension. Nor can we be oblivious to the fact that the suspended and probated *149students might suffer “collateral consequences.”
“One specific example of such consequences would be the increased difficulty in obtaining admission to a college or university that these students might well encounter. The severe disciplinary action taken against these students amounts to a blot on their scholastic records that might well haunt them for years to come.”
Sullivan v. Houston Independent School District, S.D.Tex.1969, 307 F.Supp. 1328, 1338.
In attempting to validate the procedure employed by defendants in disciplining the plaintiffs, the majority opines that the amount of formal due process required varies according to the degree of severity of the punishment to be imposed. I would agree in theory.5
The majority finds that the procedure actually employed in this case was sufficient where only a three-day suspension is involved. It seems to me that such a finding is at best dictum and at worst an advisory opinion. Of those students who submitted to the interview process, all who were found to have been participants in the walkout were given a sentence harsher than a three-day suspension. They had already missed three days of classes, thus bringing the total length of exclusion to six days. Moreover, they were subjected to the additional penalty of probation for the remainder of the school year.
As to those who refused an interview, they were in no way apprised of the maximum penalty to which they were exposed. Arguably, they could have been expelled. And upon refusing to submit to the interview process, they were in reality excluded for an indefinite period. In this light, I submit that the procedural rights actually provided by the defendants were not sufficient.
Finally, the majority justifies the defendants’ action at least partially on the ground that i.t was necessary in light of the fires set in and about the school. But, the school officials themselves did not seek approval of their acts on such a basis. There was no evidence to connect the plaintiffs with any fires. At most the fires may be considered as background. The charges preferred by radio announcement (App. pp. 141, 142) were themselves vague, but no one has contended that they included any responsibility for the fires.
The majority concedes that the action of the school authorities in imposing penalties greater than three-day suspensions cannot be justified, but holds that error to be remedied by the action of the district court which resulted in remitting the excessive part of the penalty. Under a like process of reasoning, a sentence in excess of that permitted by statute can be cured by reducing it to the statutory maximum. To me that seems strange law. I had thought that the sentence would have to be vacated in toto.
In the concluding part of its opinion, captioned “Remedy,” the majority either affirms outright or reinstates for reasons different from those entertained by the district court nearly all of the actual decision of the district court. It is not at all clear to me what further action is required by the reversal in part. The majority opinion and decision amount to little more than a criticism of the reasoning of the district court. In so doing it announces principles of law which would, in my opinion, furnish erroneous precedents. The main purpose of this dissent is to discuss those legal principles.
*150In its footnote 9, the majority sets out the school regulations governing suspension of students for three days or less. Later it concludes that
“The suspensions did not violate the governing regulation set out in footnote 9, supra,11 and the regulations are constitutionally sufficient.”
Majority opinion at p. 144. I do not agree for two reasons. First, the applicable regulations should be those governing punishment of more than three days’ suspension.6 As has been demonstrated, every walkout student who submitted to the required interview was punished7 by exclusion and/or suspension combined for more than three days, plus also probation for the remainder of the school term. The majority concedes that for greater punishment than suspension for three days the more formalized procedure is necessary to meet due process requirements.8
Second, conceding arguendo that the applicable regulations are those governing punishment by suspension of three days or less, the interview procedure did violate even those regulations in several particulars. There was inadequate notice of the charges, no notice whatever of the maximum penalty to be imposed, or of what consequences could ensue from the interview, and an inadequate hearing largely confined to the student’s responses to a pre-arranged set of inquiries. The interview procedure did not afford the students the bare rudiments of due process. For those students who refused to submit, the “exclusion” was indefinite and “continued until these students and their parents submitted to the interview procedure.” 327 F.Supp. at 532. From such a deprivation of procedural due process, I respectfully but vigorously dissent.
. See Burnside v. Byars, 5 Cir. 1968, 363 F.2d 744, 749.
. 327 F.Supp. 530, 531, 532.
. See footnote 4 of the majority opinion and its accompanying text.
. I recognize the correctness of the approach of the Second Circuit in assuming arguendo “that due process applies -when a publicly financed educational institution — whether college or high school— imposes a mild, as well as a severe, penalty upon a student,” but that, “We believe that in these school discipline cases the nature of the sanction affects the validity of the procedure used in imposing it.” Farrell v. Joel, 1971, 437 F.2d 160, 162. See also Wright, 22 Vand.L.Rev. 1060-1062.
In fact, there was more than compliance. Rather than school officials imposing the penalty, telling the parent later, and then having an interview, the parents were brought into the picture from the beginning.
. The regulations governing both the minor and the major punishments are set forth in footnote 2 to the district court’s opinion. See 327 F.Supp. at 531, 532.
. Surely the district judge could accept the opinion of Mr. Hanna that students being “excluded” awaiting interview “were out of school, and because they were missing a chance to learn, it would be punishment in my opinion.” (App. 148.)
. See footnote 10 and accompanying text of majority opinion.