I concur in part and dissent in part with respect to the scholarly lead opinion of Presiding Justice Kaus, and I disagree with part of the views expressed by my colleague, Justice Stephens. I do not reach his subject and treatment in another part.
I concur with the lead opinion’s handling and disposition of count VIII (the misdemeanor charge), as does Justice Stephens.
I concur with the lead opinion’s determination (made in dealing with count XV) that section 16701 of the Education Code is overbroad.1 The *712action words in that section “willfully disturb” unaccompanied by narrowing modifiers such as “maliciously” or “by tumultuous or offensive conduct” or unlimited by precise application as to time, purpose, means and nature of scholastic activity disturbed, allow it to encompass conduct of a too innocuous nature. (See N.A.A.C.P. v. Button, 371 U.S. 415, 432 [9 L.Ed.2d 405, 417, 83 S.Ct. 328] and other cases cited by Presiding Justice Kaus in the lead opinion.) Section 16701 appears to be unconstrued by appellate decisions, and so it lacks the well-established meaning that affords the requisite advance definiteness which has clothed Penal Code section 415, as indicated in In re Bushman, 1 Cal.3d 767 [83 Cal.Rptr. 375, 463 P.2d 727],
A series of higher, guiding decisions indicate that should section 16701 now. be given a limited construction, that circumstance cannot be used against petitioners. (See Bouie v. City of Columbia, 378 U.S. 347, 351-353 [12 L.Ed.2d 894, 898-900, 84 S.Ct. 1697], and other cases cited by Presiding Justice Kaus.) In the case of In re Kay, 1 Cal.3d 930 [83 Cal.Rptr. 686, 464 P.2d 142], the Supreme Court carved out a narrow construction for Penal Code section 403 in order to save it from overbreadth. However, because it reversed the conviction on two particular grounds,2 it did not have to face the question of whether the conduct of a defendant could be jqdged by the initially refined meaning of a statute which, but for such then declared refinement, would be overbroad, in contravention of the line of cases above mentioned, holding, in effect, that a defendant is entitled to advance notice of a “saving” construction of a prima facie overbroad statute.
I dissent as to the lead opinion’s determination (made in dealing with counts XV and XVI) that use of the conventional rule of circumstantial evidence in conspiracy cases (to wit, that conduct of persons at the time of a planned event can be proved to allow the drawing of an inference that certain of the things done were part of the plan and that certain of the participants were conspirators) should be judicially proscribed in cases where First Amendment rights are involved, because it “chills” the allegedly legitimate exercise of the right of expression of grievances by actual or symbolic speech protected by that amendment.
*713With respect to count XV, I feel that the issue is moot because of the concurrent holding of Presiding Justice Kaus and mine that section 16701 of the Education Code is overbroad. The issue is viable, however, with respect to count XVI, which charges a conspiracy to violate Penal Code section 415 (maliciously and wilfully disturbing the peace of the schools by tumultuous and offensive conduct), because it has been held that section 415 is neither overbroad nor vague. (In re Bushman, supra, 1 Cal.3d 767.)3
What is “chilled” and for what purpose must be considered in the context of the subject matter of this case, which is the facilities and processes for the education of high school students. The high school boys and girls of varying ages and degrees of maturity who are involved are in their formative stage under the discipline and social training of their parents. The school, in part, is expected to endorse and supplement this parental role.
The effective and orderly education and training of the young people is a matter of major importance and of high social value to the citizenry of the community. It is constitutionally recognized. (See citations in accompanying opinion of Justice Stephens; also analysis of social importance of an appropriately disciplined and continuously efficient educational process rendered in Mandel v. Municipal Court, 276 Cal.App.2d 649 [81 Cal.Rptr. 173].) The petitioners herein point out that there was a desire on the part of a number of Spanish surnamed students, which they, the petitioners, felt should be championed,4 to assert the grievance that they, the students, were not receiving the good education and training which was their due.5 These were the respective aims under consideration.
Also, there must be examined against what it is that there is concern that the conspiracy rule of circumstantial evidence will cause a “chill” to operate. I see it as any given group’s planning of and pressuring for a. student demonstration of grievances against claimed inadequacies of the school system which will involve the aggressive exhortation of students to walk out on their scheduled educational program, without determining *714whether the various sets of parents would want their children participating in that type of demonstration even if they were in sympathy with the cause. No one would dispute that the taking place of such a walkout would bring about a disruption of school routine (Ed. Code, § 10609); and school witnesses made it clear that the period of disruption was not limited to the time of the intrusion by the exhorting petitioners and of the ensuing walkouts, but that it persisted for many weeks thereafter. Certainly parents of children of this age have a say in whether other adults should embroil their children in a demonstration so disruptive of the educational regime.6
It is not reasonable to believe that contemplation of the possibility of involvement in felony conspiracy proceedings because of the accepted use of the circumstantial evidence rule under consideration would frighten people from planning a demonstration which did not involve the student walkout feature, such as gathering adjacent to a school facility at the time of class dismissal. The concept apparently is that future would-be adult proclaimers of grievances concerning the educational system (whose First Amendment rights are hypothetically relied upon by petitioners) would be loathe to plan a demonstration not involving student walkouts during regular school hours for fear that students might become aware of the activity and, on their own initiative, engage in a walkout disruptive of the school operation and for fear that by the rule of circumstantial evidence proposed to be used in this case they, the adults, likely would be required to answer felony charges of conspiracy to cause the student walkout. The engenderment of such a fear, in my opinion, is too remote for judicial cognizance.
Further, I feel that a student walkout during regular school hours could not be expected to be accomplished without violation of a valid law such as section 13558.5 of the Education Code7 or section 609.2 of the Penal Code (then in effect)8 or what could be a valid law (§ 16701 of the *715Ed. Code made more precise), or without causing students to transgress rules for decorum and class attendance, thereby to be in violation of section 10609, Education Code,9 (see Mandel v. Municipal Court, supra, 276 Cal.App.2d 649, 670, and fn. 10; Op. Leg. Counsel, Assem. J. (1967) p. 5028), or without contravening the social ideal of an ordered and efficient educational process. I do not say that petitioners have no standing to claim unconstitutional procedure. I say that the only foreseeable deterrence to the exercise of First Amendment rights because of fear of consequences of felony involvement is one. based on an intended exercise of rights of the nature and with the probable repercussions of those carried out by petitioners, and that such a deterrence is defensible. The government has done no wrong if knowledge of a logical trial process for allowing a fact-finder to sift for the truth makes future would-be organizers of mass school grievance protests reticent to violate, or cause the violation of such laws, rules or standards, particularly when other times, places and means are available to them for making their grievances known in an adequate, although perhaps less dramatic and effective manner. The logic of the less drastic alternative should work both ways. At times, laws which place too severe a repressant against individual rights in the name of a valid public objective are thrown out because a less drastic measure can be used to adequately reach the desired end. (Aptheker v. Secretary of State, 378 U.S. 500, 513-514 [12 L.Ed.2d 992, 1001-1002, 84 S.Ct. 1659];10 see also United States v. Spock, 416 F.2d 165, 170.11) Mandel, supra, stresses the reverse application, saying that there must be appraised the “alternatives available to the speaker ... to exercise his right to effective communication in a manner less hostile to the governmental interest . . . .”
Certainly there should be no rule against the use of evidence of conduct at the event as a basis for inferences as to what was planned and who was planning (1) where some foundational direct evidence is available, as there was here, to show that there were plans for a student walkout12 and that *716many of the participants in the ultimate event were planners,13 and (2) where there is circumstantial evidence not related to at-the-scene conduct which bears on the plans and the planners.
There was- other pre-event circumstantial evidence indicative of a full scale walkout of a type apparently not condemned by the lead opinion such as the making of picket signs and the arranging for monitors and the planning of their distribution during the walkouts to keep down excitement and to keep the students from getting angered by police action.
The lead opinion stresses that tumultuous and offensive action for its own sake was not the ultimate objective of petitioners. However, I think it must be accepted that it was the means chosen for making known the grievances, which was the ultimate objective.
The principle opinion says that our concern should be with those who sincerely desire to stay within the law while fully exercising their constitutional rights. It is my feeling that planners of teenage student walkouts during regular school hours without parental approval are not such persons.
The lead opinion states that unless we are prepared to say that anyone who organizes a demonstration by high school students assumes the risk of their misbehavior, we must hold that the First Amendment prohibits conspiracy prosecution through circumstantial evidence. This observation is at once both not sufficiently precise and not adequately comprehensive. We need to be more precise by referring to the organization of a student walkout during regular school hours as the “demonstration”; and we need to be more comprehensive by including among the risks allegedly assumed that the walkout will involve conduct by chosen adult-on-the-spot exhorters which will be violative of school rules or valid laws or what could be valid laws. I submit that we should be prepared to say that one who organizes such a demonstration does assume such risks, and we should have no cause to use the First Amendment as a bar to prosecuting suspected conspirators through circumstantial evidence.
Three decisions call for some particular remarks. The point stressed by the majority in Spock is that those aligned with the movement, which had the legal objective of opposition to the Viet Nam war and the draft, could *717be held as conspirators or not depending upon what means, legal or illegal, each intended was to be used to foster the objective. Even though a given person allied himself with the movement, he was not to be saddled with the intent of his more extreme cohorts. It was only as to this factor of intent that the Spock majority held that it would not allow the use of the device (conventionally used in conspiracy cases) of presenting the declaration of one conspirator as to the means he had agreed should be pursued to have the common views about the war and draft made known in order to establish the means that the defendant under consideration had agreed to. In the instant case nothing less than a class-time student walkout (with its offensive implications above discussed) was the plan of all. We have no problem of inculpation and noninculpation based on grades of intent.
The majority in Spock saw no impediment to the presentation, even at the jury trial, of post-planning conduct (circumstantial evidence) to allow identification of who were conspirators and determination of what actions had been planned. Evidently, the majority was not impressed by the “chilling” concept insofar as that trial feature was concerned. In the instant grand jury situation, strong suspicion of involvement in the conspiracy by each of the petitioners is shown by his individual presence and activity at various stages of the development and accomplishment of the walkouts.
The dissent in Spock was concerned with whdt it terms “the delayed fuse” approach to determining the conspiratorial culpability of signing a document like the “Call,” and it felt that such approach would have a pronounced “chilling” effect “on all kinds of efforts to sway public opinion.” Although this seems to be focusing on the rule of circumstantial evidence, the stand taken by the dissent was that because this is a conventional rule in conspiracy cases, there is good reason to hold that there actually is no conspiracy (and thus none of which a defendant can be found guilty) in such “amorphous coalitions” in the area of public discussion. The dissent outlines a progression of conspiracy situations short of the loose and shifting and openly made coalescence devoted to the expression of opinion on public issues, starting with closely knit groups directed at the execution of orthodox criminal enterprises, proceeding to those conspiracies in which a disciplined, cohesive, covert organization devotes itself with singleness of mind to one illegal purpose, and then mentioning a similar combination striving to accomplish a number of purposes, some legal and some illegal. I feel that the dissent would have ranked the Castro group as akin to either one of the latter two examples, and that it would not have considered the circumstantial evidence rule inappropriate even though it produced an effect which would “chill” the inclinations of future would-be grievance proclaimers to be among the members of and carry out the aims of such an organization. *718Obviously this would be so if the sought objective—student walkout during school hours—was a statutory offense in itself or even a violation of district administrative regulations governing student conduct. There is nothing invidious about putting a “chill” on an inclinaton to violate the law in pursuit of securing acknowledgement of and corrective action for an alleged grievance. It is noted that the majority in Spock quotes from Bond v. Floyd, 385 U.S. 116 [17 L.Ed.2d 235, 87 S.Ct. 339], the phrase, “a call to unlawful refusal” in characterizing the letter-call to young men to refuse to be inducted. The adult action in the instant case can be categorized as a call to the students to perform an illegal act or at least to engage in behavior lastingly disruptive of an atmosphere congenial to the educational process.
It is significant that in Mandel, supra, where the contents of the complaint were under scrutiny, there was no allegation that the activity of the defendant, passing out anti-war draft and racism leaflets, drew the students, who gathered about, from their scheduled scholastic activity. Also, although there were allegations that defendant mentioned a future meeting at which a student walkout would be discussed, there was no charge of conspiracy to cause a walkout from classes.14 There was no allegation that the meeting was to be held during school hours or even on a school day. The inference is clear that if the court writing Mandel had been examining a trial transcript which disclosed encouragement of students by the defendant to leave school while it was in session, its approach would have been different. At pages 673 and 674 the court says: “The facts alleged do not show advocacy which is directed to inciting . . . imminent lawless action—absentation from school”; quotes from Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 [21 L.Ed.2d 731, 89 S.Ct. 733]: “ ‘But conduct by the student . . . which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder ... is, of course, not immunized by the constitutional guarantee of freedom of speech.’ ”; and states: “Pamphleteers, however, cannot be violent and heedless of the rights of others, and must bow to appropriate discipline of the school.” In leaving Mandel we note that it stresses the weighing process15 in connection with the inquiry as to whether the vagrancy law there involved was being unconstitutionally applied. In the instant case we are employing the weighing process to determine if, indeed, it is wrong to put a “chill” on the inclination of persons to organize a demonstration to express grievances. We grant the legitimacy of an organ*719ized showing of dissatisfaction with conditions in an educational institution as a means toward inducing consideration and alleviation. But we examine the value of the interest being disrupted by a drastic means, chosen as supposedly being the only one impressive enough to be effective; and we consider whether less extreme measures would be sufficiently effective, whether it is shown that the harsh maneuver is really necessary to impress, and whether the less drastic move had been made and been ignored.
Thus, if the student walkout was a violation of law or regulations made pursuant to law, and if the “chill” ran only toward discouraging that, and there was very small likelihood that it would discourage adult group demonstrations not intended to bring about student walkouts, no sufficient interference with rights of free speech is brought about by the circumstantial evidence rule available in the conspiracy prosecution.
I do not feel that the instant case is comparable to Smith v. California, 361 U.S. 147 [4 L.Ed.2d 205, 80 S.Ct. 215]. In Smith the inventorying for sale of unobscene books was considered discouraged because of the excessive burden cast upon the bookseller of finding out which ones they were. Here, the only thing discouraged is planning a demonstration of grievances which involves getting the students to walk out during regular school hours. The instant case is not akin to New York Times Co. v. Sullivan, 376 U.S. 254 [11 L.Ed.2d 686, 84 S.Ct. 710, 95 A.L.R.2d 1412], wherein the concern was that a speaker, in a speech concerning public officials, would censor his own comments and leave some legitimate ones out in order to be sure that he would not speak any actionable libel.
Reference is now made to the separate opinion of Justice Stephens.
As far as count XVI is concerned, I feel that, given the rule of circumstantial evidence and given the recognized standard of admeasurement of evidence supportive of action at the grand jury level, the evidence was of sufficient substance for the grand jury to have entertained a strong suspicion that at least some of the actions observed carried out at the scene by petitioners and others were planned by the alleged conspirators, and that those who were seen active on the school grounds were in on the organizing somewhere along the line.
With respect to count XV, I do not agree that there should be judicial proscription against the charging of a conspiracy to violate a low-grade misdemeanor as to which a limited fine is the only penalty. Perhaps the concept can be said to stem from two of the contentions stated by petitioners: (1) The state cannot constitutionally punish at the felony level where exercise *720of First Amendment rights is involved; (2) the use of the conspiracy vehicle brings about cruel and unusual punishment. However, I do not feel that these factors should lead to the position taken.
The checkered holdings of our judicial triumvirate make it inappropriate to discuss the challenging question of the constitution of the grand jury which rendered the indictments and other contentions not covered in the above discussion.
Because of this holding, it is not necessary to pass on the question of whether the section is vague.
The grounds of decision were these: (1) That defendants’ conduct at the political meeting was not violative of the section under its narrow construction because it did not consist of intentionally committed acts in violation of implicit customs or usages of which they, as reasonable men, should have known which substantially impaired the conduct of the meeting; and (2) that the jury was instructed overbroadly because given only the unglossed wording of the code section.
Bushman defines what is tumultuous and what is offensive conduct, and what is a disturbance caused by such conduct. Disturbance means: disruption of public order by acts that are themselves violent or that tend to incite others to violence. Tumultuous conduct is violent conduct that wilfully and maliciously endangers public safety or order. Conduct is offensive if, by the person’s actions, he wilfully and maliciously incites others to violence.
The adults chose a method which involved student participation presumably because of its dramatic effect.
But petitioners evidently felt that the students had to be convinced that the petition for grievance should take the form of a walkout during regular school hours. There was testimony that in October 1967 Mr. Castro urged that a walkout was the only way to impress “the kids” as well as the school board.
Nothing in the record points to a consultation with parents to secure their approval of the involvement of their children.
Section 13558.5 reads in part as follows: “Every . . . adult who is not a pupil of the school . . . who comes upon any school ground or into anj? schcolhouse and there willfully interferes with the discipline, good order, lawful conduct, or administration of any school class or activity of the school, with the intent to disrupt, obstruct, or to inflict damage to property or bodily injury upon any person is guilty of a misdemeanor . . . .”
(See reference in footnote No. 3 of the lead opinion.)
Section 609.2 (Stats. 1967, ch. 1161, p. 2845) read in part as follows: “Any person who comes into any school building or upon any school ground, or street, sidewalk, or public way adjacent thereto, without lawful business thereon, and whose presence or acts interfere with the peaceful conduct of the activities of such school or disrupt the school or its pupils or school activities, and who remains there, after being asked to leave by the chief administrative official of that school or any designated agent . . . who carries out the same functions ... or, in the absence of the chief admin*715istrative official, the person acting as the chief administrative official, is guilty of a misdemeanor.”
(See People v. Woods, 7 Cal.App.3d 382 [86 Cal.Rptr. 508], for point of subordinate acting for chief administrative official.)
Section 10609 reads as follows: “All pupils shall comply with the regulations, pursue the required course of study, and submit to the authority of the teachers of the schools.”
“. . . Congress has within its power ‘less drastic’ means of achieving the congressional objective of safeguarding our national security.”
“. . . First Amendment rights . . . must prevail if . . . there is a ‘less restricive alternative’ by which the . . . evil may be prevented.”
The very concept of a student walkout means a physical withdrawal at a time and place when there is not freedom to do so under school rules. As to Mr. Castro, *716there is, in addition, his radio-speech-admission (receivable in evidence upon establishment of the corpus delicti of the offense) specifying the time for the call of the second walkouts (.a specie of proof not akin to the type of circumstantial evidence catalogued as “chilling” in the lead opinion).
A Mr. Gomez, one of the monitors, testified concerning meetings at which walkouts were planned and the distribution of monitors at the walkouts was worked out. He named some of the participants and indicated that there were others whose identity he could not then furnish.
The Mandel dissent felt this could have been alleged.
Weighed is the extent of impairment of the exercise of First Amendment rights against the importance of the governmental interest and the substantiality of the threat which the speech activity poses to that interest.