(concurring in part and dissenting in part):
With deference to the views of my colleagues, I must dissent from that part of the decision of the Court and the opinion which supports it, dealing with the suspension of the appellants, Jenkins, Acorn, Scott and Pitre. I concur in the judgment of the Court with respect to the appellants, Aikens and Little. I agree that the evidence and the findings against Aikens support the penalty imposed upon him because there was support for the determination that he had violated the specific regulation of Grambling College prohibiting loitering in the vicinity of a gathering which was of such a nature as to “do violence to any person or property, disrupt the function of a college or interfere with its faculty or staff,” I also agree that there is no evidence in the record to support the charges against Little. To this extent I concur with the Court’s opinion.
I would not dissent from the decision as to the others were it merely a matter *1005of testing the facts as to each of the suspended students. I do so only because I feel that as to the four appellants mentioned above this Court has held that students who merely made speeches in auditoriums, and out of doors and at places entirely removed from the classrooms, in support of, and who otherwise urged fellow students to join in, a boycott of classes in a manner which the school officials all conceded was not only done peaceably but which stressed peaceful conduct,1 could thereafter be held responsible for the actions of “groups” of students which comprised other individuals who committed acts of vandalism and disruption of the cafeteria. I think such a holding is erroneous not primarily because these students were not charged with a conspiracy, and they may thus have been deprived of procedural due process to defend themselves by showing that there was, in fact, no such conspiracy, but because they were deprived of substantive due process in that they have been found guilty of acts of violence which they neither urged nor condoned, simply because their “pure speech” aroused the emotions of others who later committed illegal acts.
I base the conclusion just stated on the statement in the opinion, when dealing with Sufficiency of Notice of Conspiracy Charge. “In considering this argument we will assume, without deciding, that there was no supportable finding of solely individual violations, unconnected with group activity, by any of these four students. This leads us to the intermediate position advocated by appellants — that the college’s case against them depends upon its ability to tie them into a conspiracy. We do not agree, however, with appellants’ conclusion that they lacked notice of a conspiracy charge . . . ”
What the majority assumed I find is clearly demanded by the record before us. I find no evidence, upon repeated careful readings of the testimony, that would support a finding that any of these students was guilty of a substantive charge of violating either the school or the board regulations unless it is charge number 1 “inciting to riot,” and as to that the board made no such finding in its findings of fact as to any one of the four. Moreover, such charge, if found to be true, would, on this record, be supportable only on the theory that, once having made a protest speech, which urged no illegal or disruptive acts, the speaker is punishable for all riotous conduct that followed because of the emotional impact of the speech itself. The constitutional implications of such a finding will be discussed in more detail later.
It is clear that the majority opinion considered that the charges adequately apprised all the students involved that they were charged with being members of a “group” that carried on the destructive acts. The opinion stated “although here the notice given to appellants could undoubtedly have been drafted with more precision, the charges do include numerous allegations of group or concerted actions.” The opinion then attaches a copy of the document furnished each student on the day of the preliminary hearing entitled “Information for Disciplinary Hearing Board.” 2
*1006The emphasis to certain of the language in the foregoing document was inserted by the majority presumably to indicate the substantial number of occasions when “the group” committed some depradation. The trouble with this approach is that there is not a word of proof in the record that any one of these four appellants with the single exception of Scott3 was a member of any one of the groups mentioned in the above notice while acting destructively.
Thus, I come to the part of the majority opinion which appears to me would establish a rule of law in conflict with the protections of the First Amendment. I refer to the following passage:
“The evidence clearly shows that, at least as to Jenkins, Scott and Acorn, these ‘leaders,’ ‘organizers,’ and ‘instigators’ of the boycott did provoke group action which led to violence. They did so not only by the simple expedient of making speeches urging a boycott, but by actively going about the campus in an effort to gain support for the protest. They stimulated many members of the student body to an emotional state which erupted into the serious and destructive violence of the evening of November 2, 1972. The record in this case demonstrates that these three students, from time to time and in varying degrees, had a strong power and influence over the conduct of their fellow students. The mere use of the descriptive term ‘peaceful boycott’ cannot, under the circumstances of this case, be used to immunize and shield what was actually done.
The case against Pitre is not as strong as that against the other three organizers. Nevertheless, the record supports the Board’s finding that he was a part of the group as an active participant in the series of meetings which led to the disruptions.” [Emphasis added].
Without stating so in so many words, it seems that the majority has accepted the theory which was espoused by the University officials when they prepared the charges. The following testimony given by Dean Whittaker concerning the conduct of Jenkins is illuminating:
“Q. I presume it is not your contention that Mr. Jenkins participated in any violent activity on the night the violence took place on the college campus?
A. No., I am not saying that he did.
Q. Basically, do you draw up this charge we have?
A. I surmised it based on information I had that he was depicted as a leader or spokesman for the protest.
Q. In other words, would it be correct in stating because he appeared to you by virtue of having made a speech to have advocated the protest and peaceful boycott, then you intended to hold him responsible for the violence which took place and what *1007you felt was a result of the protest?
A. Yes.”
It should be repeated again that there is not a single word of evidence that these “leaders,” “organizers,” and “instigators” ever spoke a single word urging any student to do more than stay out of class or to attend another meeting to create interest in support of the boycott. We do not have here the case of a speaker urging violence or revolutionary or destructive acts which amount to a crime. Even in such cases, efforts to limit the espousal of such illegal acts are strictly limited by the requirement that there must be an immediate and real threat that such acts will be carried out by the listeners, the so-called “clear and present danger” requirement. See, Dennis v. United States, 341 U.S. 494, 503—504, 71 S.Ct. 857, 95 L.Ed. 1137 (1950); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919). Here, it bears repeating again, there is nothing but innocent language which was subsequently followed by group action in which these appellants did not participate. It must be borne in mind that the language of the opinion that these “ ‘leaders,’ ‘organizers,’ and ‘instigators’ of the boycott did provoke group action which led to violence” is not intended to mean that these persons used such language as would reasonably be expected to cause violence or that they themselves urged it. There is no dispute as to these facts.
Further, as to the statement that “these three students, from time to time and at varying degrees, had a strong power and influence over the conduct of their fellow students” seems to me to be unintentionally misleading in that it implies that there is some evidence in the record that these three students attempted to influence the conduct of their fellow students along the lines that were destructive. Again, I point out, there is no evidence to this effect. In fact all of the evidence bearing on this phase of the matter is that not only was the peaceful nature of the boycott stressed, but on several occasions these persons undertpok to exert leadership to prevent potential damage to the institution.
With deference, I must disagree with the conclusion of the majority that a limitation on the right of these four appellants to assemble and speak as they did is justified under the principles announced by the Supreme Court in Tinker v. Des Moines, etc., School District, 393 U.S. 503, 506-507, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). In Tinker the Supreme Court recognized the distinction between the two cases from our Court, Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966) and Blackwell v. Issaquena Co. Bd. of Ed., 363 F.2d 749 (5th Cir. 1966). As pointed out in the majority opinion in the Burnside case the Court found a regulation against the wearing of “freedom buttons” arbitrary and unreasonable in the absence of any showing that the wearing of the buttons had interfered with educational activity, or caused a commotion or distracted the other students, but in Blackwell, the record shows that the students wearing the buttons had created “a state of confusion, a disruption of class instruction and a general breakdown of orderly discipline.” Blackwell v. Issaquena Co. Bd. of Ed., supra, at 751 n. 2.
As I read the Supreme Court’s Tinker opinion it is evident that when the Court is speaking of the protected rights the Court is directing its attention to the conduct of the individual actor or speaker and not to the conduct of other persons who may thereafter have materially and substantially interfered with the school’s discipline. As previously pointed out, this record is silent as to any material or substantial interference with the requirements of appropriate discipline and the operation of the school by the “pure speech” of these four appellants.
Moreover, it must be borne in mind that what our Court was dealing with in Blackwell was a determination whether a regulation issued by the principal of a school following an experience of “a state of confusion, a disruption of class *1008instruction and a general breakdown of orderly discipline” was reasonable. The question there was whether a determination by the school principal that the conduct of the pupils wearing the freedom buttons was so closely identified with the wearing of the buttons that he could properly prohibit this conduct which was, after all, only akin to “pure speech.” The record shows that before the issuance of the regulation the wearers of the buttons had participated themselves in action described by this Court as follows: “In the instant case, as distinguished from the facts in Burnside, there was more than a mild curiosity on the part of those who were wearing, distributing, discussing and promoting the wearing of buttons. There was an unusual degree of commotion, boisterous conduct, a collision with the rights of others, an undermining of authority, and a lack of order, discipline and decorum.” Blackwell, supra, p. 754. The Court further said: “Again we emphasize the difference in the conduct here involved and that involved in Burnside. In this case the reprehensible conduct described above was so inexorably tied to the wearing of the buttons that the two are not separable. In these circumstances we consider the rule of the school authorities reasonable.” Blackwell, supra, p. 754. [Emphasis added].
It should be further borne in mind, that the only question before the Court in Blackwell was raised by an appeal from the denial by the trial court of a preliminary injunction, an order which it is usually thought the trial court has the broadest discretionary power to issue or deny. The Court saw fit in concluding, to say: “The judgment is affirmed but without prejudice to the right of the appellants to relief upon final hearing if the facts justify such relief, emphasizing as we do the importance of the right of freedom of expression and communication as protected by the First Amendment, and the fundamental requirement that school officials should be careful in their monitoring of student expression in circumstances in which such expression does not substantially interfere with the operation of the school.” Blackwell, supra, p. 754.
Once again, I read the language of this Court “in which such expression does not substantially interfere with the operation of the school” as being limited to the acts of the speakers themselves and not the acts of others who may fortuitously act irresponsibly and destructively on their own.
Here we have an appeal from a final judgment which has resulted in the suspension for one or two terms of college of students who, according to the findings, have been found guilty of nothing more than peaceable assembly and speech urging conduct by others, to be carried out peaceably.4
They were punished as being vicariously responsible for the specific acts of others, many of whom were identified and punished separately for proven acts of vandalism and who are not now before the Court.
I would hold that in the absence of any proof that these four appellants participated in any of the acts of violence and in light of the fact that none of them urged such acts upon other students, their acting as “organizers,” “leaders” and “instigators” of the movement to cause a boycott of classes to make the University authorities listen to a list of grievances was protected activity under the First Amendment as made effective under the Fourteenth Amendment to this state institution.
. It is to be noted that in neither the charge against any of these students nor in the findings against them was it made a basis for their suspensions that they had urged or spoken in favor of anything illegal or disruptive. The record shows that the president of the college himself had agreed that any absence from classes could be worked out without any sanctions.
. For example, the “Information for Disciplinary Hearing Board” regarding appellant Jenkins contained the following elaboration:
“Larry Jenkins was arrested in connection with a disturbance which resulted in destruction of property. He was one of the leaders of the protest that erupted into a disturbance which brought disorderly conduct and simple criminal damage to public and private property on November 2, 1972. The disruption began around 5:00 p. m., when members of the group disrupted the evening meal in the college dining hall, causing damage to the facility. The group also caused damage to the student union building, and group members committed simple arson on the president’s house. The group of about 100 to 150 students failed to obey several orders given by the chief of campus security officer to disperse, including the sprinkling of tear gas among the group.
*1006Earlier in the evening, the group blocked the state highway passing through the campus (simple obstruction of a highway of commerce) for approximately four hours, then made an approach to the Administration Building. After several speeches and shouts of obscenities, the group left and marched through the women’s residence area and did considerable damage to residence halls. The group later returned to the Administration Building and continued to disobey orders to disperse, until a number of arrests were made.
Mr. Jenkins made one speech in the auditorium in connection with the protest and served as one of the organizers.” [Emphasis added.]
. The only evidence that he was a part of any “group” mentioned in the foregoing charge is that one student testified that he was seen “two seats from a turned-over table,” whereas a Mr. Rogers who was Director of Food Services for the college and therefore responsible for the operation of the cafeteria, testified that when he saw Scott he was some forty feet away from any turned-over tables. He further testified that Scott was not one of the six or seven persons who were turning over the tables and that he was not even near that group of students. He also testified that he heard Scott say “Don’t loot the cafeteria.” Thus it is clear that Scott’s participation in that particular “group” could not be considered culpable.
. It must also be borne in mind that there was neither charged against these students, nor was there a finding of fact to the effect, that the urging of a boycott or the engaging in a boycott was one of the grounds for their being punished.