(dissenting) :■
I respectfully dissent. Virtually all of the cases cited in the majority opinion for the principle that one is constitutionally entitled to be free from punishment in the absence of personal guilt are criminal cases. This is not a criminal case. The remaining cases cited did not involve misdirected punishment but were decided because the state statutes involved suffered the vice of vagueness or established a classification which had no rational relationship to the purpose of the statutes. The civil law is replete with the concept of vicarious liability from strict liability for torts to the present era of legislation which frequently visits severe civil responsibility for conduct of another and where the one who is called upon to respond is totally without fault.
The idea that transfer of a student from one class to another or from one school to another is punishment in a criminal vein runs absolutely contrary to the law in this Circuit which has transferred from class to class and school to school wholesale numbers of children without any regard to the detriment this may have caused in individual social, economic and educational terms. Their transfer is certainly through no fault of their own and the result has sometimes adversely affected individual lives, but we have never yet conceived this to be “punishment” in the terms unveiled in the majority opinion.
I cannot agree that a state school must show a compelling governmental, interest in a precise rule of discipline. A school has a compelling interest in maintaining discipline and any rational rule to achieve that end should meet the constitutional test. I doubt very much that any rule of discipline could ever be defended in terms of a compelling interest in the exact rule. There are generally viable alternatives to almost every course of human conduct, however rational that conduct may be. The test should be whether the rule meets the Government interest in a rational way.
Finally, I cannot conceive of much education transpiring between a student and a teacher who has just been struck by the student’s parent in front of classmates and who is prosecuting the parent in criminal proceedings. Removing the student from that class and perhaps from the school might be not only the kindest thing to do for all parties but the best way to promote the educational interest of the particular student as well as that of all other students in the class. The “suspension” was merely a mechanical avenue to that end. Although I might not subscribe to such a rule as is challenged in this case, I can find no appropriate legal base to support the claim of unconstitutionality.
None of the findings of fact of the District Judge being clearly erroneous, I would affirm his order, attached to this dissent as an appendix, dismissing the suit on the ground that no federal right was violated by the defendants.
APPENDIX TO DISSENT ORDER
This is a suit by Mrs. St. Ann individually and on behalf of her minor children, Maurice and Lavida, against the principal and assistant principal of Mar*430tin Behrman Middle School, the Superintendent of the Orleans Parish Public Schools, and the members of the Orleans Parish School Board. Plaintiffs seek declaratory and injunctive relief pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343(3) and (4), and 28 U.S.C. §§ 2201 and 2202, and damages pursuant to 42 U.S.C. § 1983. (Plaintiff’s demands for the’ convening of a three judge court and for the bringing of a class action were previously denied by the Court.) Plaintiff asks that the court (1) declare unconstitutional the provisions of L.R.S. 17:416 relative to the discipline, suspension, and expulsion of pupils from Louisiana public schools 1; (2) enjoin the enforcement of L.R.S. 17:416; (3) declare unconsti*431tutional Orleans Parish School Board Regulation XIX which allows suspension of a child from school following disruptive acts by the parent at the school2 and enjoin enforcement of that regulation ; (4) declare the suspension and expulsion policies of the Orleans Parish School Board unconstitutional and enjoin expulsion and suspension of students from Orleans Parish Schools without prior notice and hearing; and (5) award plaintiff monetary damages for allegedly illegal suspensions.
An evidentiary hearing was held on February 13, 1973. After careful consideration of all testimony and other evidence produced at hearing, it is the opinion of the Court that, according to the applicable law, plaintiff has failed to prove any deprivation of any federally protected right, and therefore, all plaintiff’s claims being without merit, no injunction should issue and the matter should be dismissed, each party to bear its own costs.
FACTS
On September 27, 1972, Maurice St. Ann, the 14 year old son of plaintiff Mrs. St. Ann, was suspended for a period of three days from his seventh grade classes at Martin Behrman Middle School because of excessive tardiness and class cutting. Maurice was sent home with a written notice of his suspension and the reasons therefor. This suspension is not at issue in this suit.
On the following day, September 28, 1972, Mrs. St. Ann went to the school with her daughter Lavida, also a seventh grade student at Martin Behrman, who was tardy, in order to check the child into school. While she was in the school office, Mrs. St. Ann inquired about her son’s suspension. She was told by Mr. Achary, the assistant principal, that the usual procedure for a three day suspension was a conference with the parent at the end of the three day period, but that if she would be seated he would speak with her as soon as he finished talking with several students who were in his office at that time. At this point, according to Mrs. St. Ann, Mr. Achary called her son a liar, which fact is denied by Mr. Achary. At any rate, Mrs. St. Ann became enraged and struck Mr. Achary on the face with her fist in which she was holding a number of keys on a chain.
Following the incident on the morning of September 28th, both the St. Ann children were suspended from school. The suspension form issued, identical in form to the one previously issued for Maurice’s three day suspension, states *432“mother’s attack on principal” as the reason for the suspension and that the period of the suspension was “recommended indefinite”. The notices, dated September 29, 1972, were signed by Vincent Palisi, principal of Martin Behr-man, and noted that a copy of the form would be forwarded to the district superintendent. Lavida’s suspension form was brought home by her on the day of the incident, and Maurice’s was sent through the mail.
On October 2, 1972, the Monday following the children’s suspension, a letter was sent to Mrs. St. Ann at 1914 Murl Street by District Superintendent John F. Monie, advising her that a conference would be held with reference to her children’s suspensions on Tuesday, October 10, 1972 at 8:45 a. m. (at which time the children would have been '■ out of school for seven days). Mrs. St. Ann and her children did not appear on the date of the conference. Mr. Monie then telephoned Mrs. St. Ann, who advised him that she had not received the notice of the conference, due to a change of address to 1817 Joann Place. She further stated in response to Mr. Monie’s attempt to set up another conference that she did not wish to confer as the matter was in the hands of her attorney. On October 12, 1972, Mr. Monie again wrote Mrs. St. Ann, with copies sent to both the Murl and the Joann addresses, stating that Mrs. St. Ann should contact Mr. Monie “with the view of returning your children to a school”, giving the telephone number of Mr. Monie’s office, and noting that a call to the office would result in the rescheduling of the conference. This suit was filed on October 13,1972.
Subsequent to the filing of the suit, and at the request of the Court, a conference between the various interested parties was held on October 25, 1972. The conference did not result in reinstatement of the children in Martin Behrman because of plaintiff’s refusal to apologize for her actions on September 28th; however, after a conference between the Court and the parties, the children were transferred officially to Karr School — which they had in fact been attending since October 17, 1972. The children have been attending Karr School throughout the pendency of this suit, having missed approximately 12 days of school as a result of the suspension at issue. Karr School is approximately the same distance from the children’s home as Martin Behrman, and Maurice and Lavida, who are black, are now attending a school which is predominantly white (60%) as opposed to Martin Behrman, which, according to Mr. Monie, is 80% black. However, the transfer to Karr School is not felt to be satisfactory to plaintiff because of the alleged unavailability of free transportation to Karr and due to the children’s preference for Martin Behrman.
It is plaintiff’s position that the regulation pursuant to which her children were suspended was unconstitutional per se and that, in addition, a hearing should have been afforded prior to any suspension. Defendants contend that Regulation XIX is a necessary one for the maintenance of discipline in the public schools and is well within the power of the school board to enact. It is further argued that a prior hearing is not required for suspensions of short duration, that a hearing was arranged within a reasonable time, and that the reason that a prompt hearing was not in fact held as scheduled was the result of a good faith error as to the address of Mrs. St. Ann and the failure of Mrs. St. Ann herself to cooperate after the address problem was rectified.
CONCLUSIONS OF LAW
1. L.R.S. 17:416 and the Orleans Parish School Board regulations which track its provisions are not unconstitutional on their f§tce, Murray v. West Baton Rouge Parish School Board, (C.A.5, 1973), 472 F.2d 438, nor has plaintiff presented any evidence that they were unconstitutionally applied in the instant case.
2. Orleans Parish School Board Regulation XIX does not abuse the discre*433tion allowed to school authorities to formulate rules for the maintenance of discipline in the public schools, and the procedures following the suspensions of the St. Ann children pursuant to Regulation XIX did not violate Due Process. This regulation was enacted by the Orleans Parish School Board pursuant to L. R.S. 17:81 which authorizes each school board to:
“. . . make such rules and regulations for its own government, not inconsistent with law or with the regulations of the Louisiana State Board of Education, as it may deem proper.”
L.R.S. 17:81 is made applicable to the Orleans Parish Board by L.R.S. 17:122 which provides:
§ 122. Application. of general laws and regulations of state board of education
All laws, and all rules and regulations of the state board of education governing other parish school boards throughout the state, shall govern the Orleans Parish School Board, except as otherwise specifically provided in this Title. As amended Acts 1960, 3rd Ex.Sess., No. 4, § 1.
According to testimony given at the hearing in this matter, the reason for Regulation XIX is that incidents involving parents and teachers on school property, such as the one involving Mr. Achary and Mrs. St. Ann, tend to materially disrupt discipline on the school grounds. Children tend to ridicule a teacher who is insulted or attacked by a parent, and such incidents result in a breakdown of discipline in the public schools. According to the school officials who testified in the instant case, if a parent makes amends for the disruptive conduct, the child is not penalized. In the event that the parent refuses to apologize, as did Mrs. St. Ann, the child is transferred to another school where the parent’s conduct is not known. It is further stated by the school officials that the term “indefinite suspension” as used on the suspension forms issued to the St. Ann children is merely the recommendation of the school principal to the district superintendent who will be the person who actually makes the decision after a conference with the parent and the school principal or teacher.
School officials have a wide margin of discretion in formulating school disciplinary rules, and school disciplinary codes cannot be drawn with the same precision as criminal codes. Burnside v. Byars, 363 F.2d 744 (C.A.5, 1966); Murray v. West Baton Rouge Parish School Board, supra. It is the Court’s opinion that the school officials in the instant case have demonstrated a need for a rule such as Regulation XIX in the public schools. There has been no evidence that this rule is or was intended to keep a child out of school, and the rule itself pro-' vides that no action is to be taken against the child unless the parent fails to make amends.
The procedure followed with respect to the suspensions of the St. Ann children is within constitutional limits. No prior hearing is required for a suspension of up to ten days. Sullivan et al. v. Houston Independent School District, 475 F.2d 1071, (C.A.5, 1973), citing Banks v. Bd. of Public Education, 314 F.Supp. 285 (S.D.Fla.) vacated for entry of a single judge order, 401 U.S. 988, 91 S.Ct. 1223, 28 L.Ed.2d 526 (1971), aff’d after remand, 450 F.2d 1103 (C.A.5, 1971). In the instant case the initial hearing was set up by letter dated the next working day following the suspensions by the district superintendent and scheduled to take place less than ten days following the initial suspension. The fact that the hearing was not held as planned on October 10th was not due to any fault of the school officials. The failure to have a hearing at any time following October 10th, pursuant to Mr. Monie’s phone call and letter of October 12th, were due to the refusal of the mother to assent to a conference. For these reasons it cannot be held that the school board acted in violation of procedural due process in this matter. Sullivan et al. v. Houston Indep. School District, supra.
*434Therefore, there having been no showing of facts sufficient to prove any constitutional deprivation to plaintiffs, it is ordered that plaintiff’s case be dismissed with prejudice, each party to bear its own costs.
Let judgment issue accordingly.
New Orleans, Louisiana, this 25th day of April, 1973.
s/ R. BLAKE WEST_
United States District Judge
. L.R.S. 17:416 provides :
§ 416. Discipline of pupils ; suspension ; expulsion
A. Every teacher is authorized to hold every pupil to a strict accountability for any disorderely conduct in school or on the playgrounds of the school, on the street or road while going to or returning from school, or during intermission or recess. School principals may suspend from school any pupil who is guilty of willful disobedience; who treats with intentional disrespect a teacher, principal, superintendent, member or employee of the local school board; who makes against any one of them an unfounded charge; who uses unchaste or profane language ; who is guilty of immoral or vicious practices, or of conduct or habits injurious to his associates; who uses tobacco or alcoholic beverages in any form in school buildings or on school grounds; who disturbs the school and habitually violates any rule; who cuts, defaces or injures any part of public school buildings, or any property belonging to said buildings; or who writes any profane or obscene language or draws obscene pictures in or on any school material or on any public school premises, or on any fence, pole, sidewalk or building on the way to or from school; or who is found carrying firearms, knives, or other implements which can be used as weapons, the careless use of which might inflict harm or injury; or who throws missiles on the school grounds liable to injure other pupils, or who instigates or participates in fights while under school supervision ; or who violates traffic and safety regulations; or who leaves the school premises without permission; or who leaves his classroom during class hours or detention without permission; or who is habitually tardy or absent; or who commits any other serious offense. Notice in writing of the suspension and the reasons therefor shall be given to the parent or parents of the pupil suspended. Any parent of a pupil suspended shall have the right to appeal to the parish superintendent of schools, who shall conduct a hearing on the merits. The decision of the superintendent of schools on the merit of the case, as well as the term of suspension, shall be final, reserving the right to the superintendent of schools to remit any portion of the time of suspension. A pupil suspended for damages to any property belonging to the school system shall not be readmitted until payment in full has been made for such damage or until directed by the superintendent of schools.
B. Any student after being suspended for committing any of the above offenses may be expelled, upon recommendation by the principal of the public school in which said student is enrolled, which recommended expulsion shall be subject to the provisions of Subsection (0) hereof.
Any student after being suspended on three occasions for committing any of the above offenses, during the same school session, shall on committing the fourth such offense, be expelled from the public schools of the parish wherein he resided until the beginning of the next regular school session, subject to the review and approval of the local school board.
O. Upon the recommendation by a principal for the expulsion of any student as authorized by Subsection (B) hereof, a hearing shall be conducted by the superintendent or by any other person, designated so to do by the superintendent. Upon the conclusion of the hearing, the superintendent, or his designate, shall determine whether such student shall be expelled from the school system or if other corrective or disciplinary action shall be taken. At said hearing the principal and/or teacher concerned may be represented by any person appointed by the superintendent. Until such hearing takes place the student shall remain suspended from the school. At such hearing the student may be represented by any person of his choice.
The parent or tutor of the pupil may, within five days after the decision is rendered, request the city or parish school board to review the findings of the superintendent or his designate at a time set by the school board; otherwise the decision of the superintendent shall be final. If requested, as herein provided, and after reviewing the findings of the superintendent or his designate, the school board may affirm, modify or reverse the action previously taken.
The parent or tutor of the pupil may, within ten days, appeal to the district court for the parish in which the student’s school *431is located, from an adverse ruling of the school board in upholding the action of the superintendent or his designate. The court may reverse or revise the ruling of the school board upon a finding that the ruling of the board was based on an absence of any relevant evidence in support thereof.
D. The conviction of any student of a felony or the incarceration of any student in a juvenile institution for an act which had it been committed by an adult, would have constituted a felony, shall be cause for expulsion of the student for a period of time as determined by the board; provided that such expulsion shall require the vote of two-thirds of the elected members of the school board.
Amended by Acts 1970, No. 194, § 1; Acts 1970, No. 306, § 1.
. Orleans Parish School Board Regulation XIX provides:
SECTION XIX COMPLAINT PROCEDURE
A parent or guardian dissatisfied with the conduct of any teacher toward his child or ward shall first lay his complaint before the teacher, and, if not satisfied, may appeal to the principal. The principal shall hear such complaints only in the presence of the teacher concerned. If the matter is not satisfactorily resolved, the parent or guardian may appeal to the assistant superintendent in charge of the district, who shall hear the case only in the presence of the principal and teacher. Should the principal or teacher be called to account or be reproved in an offensive manner in the classroom or elsewhere, verbally or in writing, by a parent or guardian, the child or ward of such parent or guardian shall, by reason of such conduct, be liable to suspension or other punishment. Said suspension or other punishment shall not be made until after the parent or guardian has refused to make proper amends.