U.S. Supreme Court Goss v. Lopez, 419
U.S. 565 (1975) Goss v. Lopez No. 73-898 Argued October 16,
1974 Decided January 22,
1975 419
U.S. 565 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
OHIO Syllabus Appellee Ohio public high school students, who had been
suspended from school for misconduct for up to 10 days without a
hearing, brought a class action against appellant school officials
seeking a declaration that the Ohio statute permitting such
suspensions was unconstitutional and an order enjoining the
officials to remove the references to the suspensions from the
students' records. A three-judge District Court declared that
appellees were denied due process of law in violation of the
Fourteenth Amendment because they were "suspended without hearing
prior to suspension or within a reasonable time thereafter," and
that the statute and implementing regulations were
unconstitutional, and granted the requested injunction. Held: 1. Students facing temporary suspension from a public school
have property and liberty interests that qualify for protection
under the Due Process Clause of the Fourteenth Amendment. Pp. 419 U. S.
572 -576.

															(a) Having chosen to extend the right to an education to people
of appellees' class generally, Ohio may not withdraw that right on
grounds of misconduct absent fundamentally fair procedures to
determine whether the misconduct has occurred, and must recognize a
student's legitimate entitlement to a public education as a
property interest that is protected by the Due Process Clause, and
that may not be taken away for misconduct without observing minimum
procedures required by that Clause. Pp. 419 U. S.
573 -574.

															(b) Since misconduct charges, if sustained and recorded, could
seriously damage the students' reputation, as well as interfere
with later educational and employment opportunities, the State's
claimed right to determine unilaterally and without process whether
that misconduct has occurred immediately collides with the Due
Process Clause's prohibition against arbitrary deprivation of
liberty. Pp. 419 U. S.
574 -575.

															(c) A 10-day suspension from school is not de minimis and may not be imposed in complete disregard of the Due Process Page 419 U. S. 566 Clause. Neither the property interest in educational benefits
temporarily denied nor the liberty interest in reputation is so
insubstantial that suspensions may constitutionally be imposed by
any procedure the school chooses, no matter how arbitrary. Pp. 419 U. S.
575 -576.

															2. Due process requires, in connection with a suspension of 10
days or less, that the student be given oral or written notice of
the charges against him and, if he denies them, an explanation of
the evidence the authorities have and an opportunity to present his
version. Generally, notice and hearing should precede the student's
removal from school, since the hearing may almost immediately
follow the misconduct, but if prior notice and hearing are not
feasible, as where the student's presence endangers persons or
property or threatens disruption of the academic process, thus
justifying immediate removal from school, the necessary notice and
hearing should follow as soon as practicable. Pp. 419 U. S.
577 -584. 372 F.
Supp. 1279 , affirmed.

															WHITE, J., delivered the opinion of the Court, in which DOUGLAS,
BRENNAN, STEWART, and MARSHALL, JJ., joined. POWELL, J., filed a
dissenting opinion, in which BURGER, C.J., and BLACKMUN and
REHNQUIST, JJ., joined, post, p. 419 U. S.
584 . Page 419 U. S. 567 MR. JUSTICE WHITE delivered the opinion of the Court.

															This appeal by various administrators of the Columbus, Ohio,
Public School System (CPSS) challenges the judgment of a
three-judge federal court, declaring that appellees -- various high
school students in the CPSS -- were denied due process of law
contrary to the command of the Fourteenth Amendment in that they
were temporarily suspended from their high schools without a
hearing either prior to suspension or within a reasonable time
thereafter, and enjoining the administrators to remove all
references to such suspensions from the students' records. I Ohio law, Rev.Code Ann. § 3313.64 (1972), provides for free
education to all children between the ages of six and 21. Section
3313.66 of the Code empowers the principal of an Ohio public school
to suspend a pupil for misconduct for up to 10 days or to expel
him. In either case, he must notify the student's parents within 24
hours and state the reasons for his action. A pupil who is
expelled, or his parents, may appeal the decision to the Board of
Education, and, in connection therewith, shall be permitted to be
heard at the board meeting. The Board may reinstate the pupil
following the hearing. No similar procedure is provided in §
3313.66 or any other provision of state law for a suspended
student. Aside from a regulation tracking the statute, at the time
of the imposition of the suspensions in this case, the CPSS itself
had not issued any written procedure applicable to suspensions.
[ Footnote 1 ] Nor, so far as the
record reflects, had any of Page 419 U. S. 568 the individual high schools involved in this case. [ Footnote 2 ] Each, however, had formally
or informally described the conduct for which suspension could be
imposed.

															The nine named appellees, each of whom alleged that he or she
had been suspended from public high school in Columbus for up to 10
days without a hearing pursuant to § 3313.66, filed an action under
42 U.S.C. § 1993 against the Columbus Board of Education and
various administrators of the CPSS. The complaint sought a Page 419 U. S. 569 declaration that § 3313.66 was unconstitutional in that it
permitted public school administrators to deprive plaintiffs of
their rights to an education without a hearing of any kind, in
violation of the procedural due process component of the Fourteenth
Amendment. It also sought to enjoin the public school officials
from issuing future suspensions pursuant to § 3313.66, and to
require them to remove references to the past suspensions from the
records of the students in question. [ Footnote 3 ]

															The proof below established that the suspensions arose out of a
period of widespread student unrest in the CPSS during February and
March, 1971. Six of the named plaintiffs, Rudolph Sutton, Tyrone
Washington, Susan Cooper, Deborah Fox, Clarence Byars, and Bruce
Harris, were students at the Marion-Franklin High School and were
each suspended for 10 days [ Footnote 4 ] on account of disruptive or disobedient
conduct committed in the presence of the school administrator who
ordered the suspension. One of these, Tyrone Washington, was among
a group of students demonstrating in the school auditorium while a
class was being conducted there. He was ordered by the school
principal to leave, refused Page 419 U. S. 570 to do so, and was suspended. Rudolph Sutton, in the presence of
the principal, physically attacked a police officer who was
attempting to remove Tyrone Washington from the auditorium. He was
immediately suspended. The other four Marion-Franklin students were
suspended for similar conduct. None was given a hearing to
determine the operative facts underlying the suspension, but each,
together with his or her parents, was offered the opportunity to
attend a conference, subsequent to the effective date of the
suspension, to discuss the student's future.

															Two named plaintiffs, Dwight Lopez and Betty Crome, were
students at the Central High School and McGuffey Junior High
School, respectively. The former was suspended in connection with a
disturbance in the lunchroom which involved some physical damage to
school property. [ Footnote 5 ]
Lopez testified that at least 75 other students were suspended from
his school on the same day. He also testified below that he was not
a party to the destructive conduct, but was instead an innocent
bystander. Because no one from the school testified with regard to
this incident, there is no evidence in the record indicating the
official basis for concluding otherwise. Lopez never had a
hearing.

															Betty Crome was present at a demonstration at a high school
other than the one she was attending. There she was arrested
together with others, taken to the police station, and released
without being formally charged. Before she went to school on the
following day, she was Page 419 U. S. 571 notified that she had been suspended for a 10-day period.
Because no one from the school testified with respect to this
incident, the record does not disclose how the McGuffey Junior High
School principal went about making the decision to suspend Crome,
nor does it disclose on what information the decision was based. It
is clear from the record that no hearing was ever held.

															There was no testimony with respect to the suspension of the
ninth named plaintiff, Carl Smith. The school files were also
silent as to his suspension, although as to some, but not all, of
the other named plaintiffs the files contained either direct
references to their suspensions or copies of letters sent to their
parents advising them of the suspension.

															On the basis of this evidence, the three-judge court declared
that plaintiffs were denied due process of law because they were
"suspended without hearing prior to suspension or within a
reasonable time thereafter," and that Ohio Rev.Code Ann. § 3313.66
(1972) and regulations issued pursuant thereto were
unconstitutional in permitting such suspensions. [ Footnote 6 ] It was ordered that all
references to plaintiffs' suspensions be removed from school
files.

															Although not imposing upon the Ohio school administrators any
particular disciplinary procedures and leaving them

															"free to adopt regulations providing for fair suspension
procedures which are consonant with the educational goals of their
schools and reflective of the characteristics of their school and
locality,"

															the District Court declared Page 419 U. S. 572 that there were "minimum requirements of notice and a hearing
prior to suspension, except in emergency situations." In
explication, the court stated that relevant case authority would:
(1) permit "[i]mmediate removal of a student whose conduct disrupts
the academic atmosphere of the school, endangers fellow students,
teachers or school officials, or damages property"; (2) require
notice of suspension proceedings to be sent to the student's
parents within 24 hours of the decision to conduct them; and (3)
require a hearing to be held, with the student present, within 72
hours of his removal. Finally, the court stated that, with respect
to the nature of the hearing, the relevant cases required that
statements in support of the charge be produced, that the student
and others be permitted to make statements in defense or
mitigation, and that the school need not permit attendance by
counsel.

															The defendant school administrators have appealed the
three-judge court's decision. Because the order below granted
plaintiffs' request for an injunction -- ordering defendants to
expunge their records -- this Court has jurisdiction of the appeal
pursuant to 28 U.S.C. § 1253. We affirm. II At the outset, appellants contend that, because there is no
constitutional right to an education at public expense, the Due
Process Clause does not protect against expulsions from the public
school system. This position misconceives the nature of the issue,
and is refuted by prior decisions. The Fourteenth Amendment forbids
the State to deprive any person of life, liberty, or property
without due process of law. Protected interests in property are
normally "not created by the Constitution. Rather, they are created
and their dimensions are defined" by an independent source such as
state statutes or rules Page 419 U. S. 573 entitling the citizen to certain benefits. Board of Regents
v. Roth, 408 U. S. 564 , 408 U. S. 577 (1972).

															Accordingly, a state employee who under state law, or rules
promulgated by state officials, has a legitimate claim of
entitlement to continued employment absent sufficient cause for
discharge may demand the procedural protections of due process. Connell v. Higginbotham, 403 U. S. 207 (1971); Wieman v. Updegraff, 344 U.
S. 183 , 344 U. S.
191 -192 (1952); Arnett v. Kennedy, 416 U.
S. 134 , 416 U. S. 164 (POWELL, J., concurring), 416 U. S. 171 (WHITE, J., concurring and dissenting) (1974). So may welfare
recipients who have statutory rights to welfare as long as they
maintain the specified qualifications. Goldberg v. Kelly, 397 U. S. 254 (1970). Morrissey v. Brewer, 408 U.
S. 471 (1972), applied the limitations of the Due
Process Clause to governmental decisions to revoke parole, although
a parolee has no constitutional right to that status. In like vein
was Wolff v. McDonnell, 418 U. S. 539 (1974), where the procedural protections of the Due Process Clause
were triggered by official cancellation of a prisoner's good time
credits accumulated under state law, although those benefits were
not mandated by the Constitution.

															Here, on the basis of state law, appellees plainly had
legitimate claims of entitlement to a public education. Ohio
Rev.Code Ann. §§ 3313.48 and 3313.64 (1972 and Supp. 1973) direct
local authorities to provide a free education to all residents
between five and 21 years of age, and a compulsory attendance law
requires attendance for a school year of not less than 32 weeks.
Ohio Rev.Code Ann § 3321.04 (1972). It is true that § 3313.66 of
the Code permits school principals to suspend students for up to 10
days; but suspensions may not be imposed without any grounds
whatsoever. All of the schools had their own rules specifying
the Page 419 U. S. 574 grounds for expulsion or suspension. Having chosen to extend the
right to an education to people of appellees' class generally, Ohio
may not withdraw that right on grounds of misconduct, absent
fundamentally fair procedures to determine whether the misconduct
has occurred. Arnett v. Kennedy, supra at 416 U. S. 164 (POWELL, J., concurring), 416 U. S. 171 (WHITE, J., concurring and dissenting), 416 U. S. 206 (MARSHALL, J., dissenting).

															Although Ohio may not be constitutionally obligated to establish
and maintain a public school system, it has nevertheless done so,
and has required its children to attend. Those young people do not
"shed their constitutional rights" at the schoolhouse door. Tinker v. Des Moines School Dist., 393 U.
S. 503 , 393 U. S. 506 (1969).

															"The Fourteenth Amendment, as now applied to the States,
protects the citizen against the State itself and all of its
creatures -- Boards of Education not excepted." West Virginia Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 637 (1943). The authority possessed by the State to prescribe and
enforce standards of conduct in its schools although concededly
very broad, must be exercised consistently with constitutional
safeguards. Among other things, the State is constrained to
recognize a student's legitimate entitlement to a public education
as a property interest which is protected by the Due Process Clause
and which may not be taken away for misconduct without adherence to
the minimum procedures required by that Clause.

															The Due Process Clause also forbids arbitrary deprivations of
liberty. "Where a person's good name, reputation, honor, or
integrity is at stake because of what the government is doing to
him," the minimal requirements of the Clause must be satisfied. Wisconsin v. Constantineau, 400 U.
S. 433 , 400 U. S. 437 (1971); Board of Regents v. Roth, supra, at 408 U. S. 573 .
School authorities here suspended appellees from school for periods
of up to 10 days Page 419 U. S. 575 based on charges.of misconduct. If sustained and recorded, those
charges could seriously damage the students' standing with their
fellow pupils and their teachers as well as interfere with later
opportunities for higher education and employment. [ Footnote 7 ] It is apparent that the claimed
right of the State to determine unilaterally and without process
whether that misconduct has occurred immediately collides with the
requirements of the Constitution.

															Appellants proceed to argue that, even if there is a right to a
public education protected by the Due Process Clause generally, the
Clause comes into play only when the State subjects a student to a
"severe detriment or grievous loss." The loss of 10 days, it is
said, is neither severe nor grievous and the Due Process Clause is
therefore of no relevance. Appellants' argument is again refuted by
our prior decisions; for in determining

															"whether due process requirements apply in the first place, we
must look not to the 'weight' but to the nature of the
interest Page 419 U. S. 576 at stake." Board of Regents v. Roth, supra, at 408 U. S.
570 -571. Appellees were excluded from school only
temporarily, it is true, but the length and consequent severity of
a deprivation, while another factor to weigh in determining the
appropriate form of hearing, "is not decisive of the basic right"
to a hearing of some kind. Fuentes v. Shevin, 407 U. S.
67 , 407 U. S. 86 (1972). The Court's view has been that, as long as a property
deprivation is not de minimis, its gravity is irrelevant
to the question whether account must be taken of the Due Process
Clause. Sniadach v. Family Finance Corp., 395 U.
S. 337 , 395 U. S. 342 (1969) (Harlan, J., concurring); Boddie v. Connecticut, 401 U. S. 371 , 401 U. S.
378 -379 (1971); Board of Regents v. Roth,
supra, at 408 U. S. 570 n. 8. A 10-day suspension from school is not de minimis, in our view, and may not be imposed in complete disregard of the
Due Process Clause.

															A short suspension is, of course, a far milder deprivation than
expulsion. But, "education is perhaps the most important function
of state and local governments," Brown v. Board of
Education, 347 U. S. 483 , 347 U. S. 493 (1954), and the total exclusion from the educational process for
more than a trivial period, and certainly if the suspension is for
10 days, is a serious event in the life of the suspended child.
Neither the property interest in educational benefits temporarily
denied nor the liberty interest in reputation, which is also
implicated, is so insubstantial that suspensions may
constitutionally be imposed by any procedure the school chooses, no
matter how arbitrary. [ Footnote
8 ] Page 419 U. S. 577 III "Once it is determined that due process applies, the question
remains what process is due." Morrissey v. Brewer, 408
U.S. at 408 U. S. 481 .
We turn to that question, fully Page 419 U. S. 578 realizing, as our cases regularly do, that the interpretation
and application of the Due Process Clause are intensely practical
matters, and that "[t]he very nature of due process negates any
concept of inflexible procedures universally applicable to every
imaginable situation." Cafeteria Workers v. McElroy, 367 U. S. 886 , 367 U. S. 895 (1961). We are also mindful of our own admonition:

															"Judicial interposition in the operation of the public school
system of the Nation raises problems requiring care and restraint.
. . . By and large, public education in our Nation is committed to
the control of state and local authorities." Epperson v. Arkansas, 393 U. S. 97 , 393 U. S. 104 (1968).

															There are certain benchmarks to guide us, however. Mullane
v. Central Hanover Trust Co., 339 U.
S. 306 Page 419 U. S. 579 (1950), a case -- often invoked by later opinions, said that

															"[m]any controversies have raged about the cryptic and abstract
words of the Due Process Clause but there can be no doubt that, at
a minimum they require that deprivation of life, liberty or
property by adjudication be preceded by notice and opportunity for
hearing appropriate to the nature of the case." Id. at 339 U. S. 313 .
"The fundamental requisite of due process of law is the opportunity
to be heard," Grannis v. Ordean, 234 U.
S. 385 , 234 U. S. 394 (1914), a right that "has little reality or worth unless one is
informed that the matter is pending and can choose for himself
whether to . . . contest." Mullane v. Central Hanover Trust
Co., supra, at 339 U. S. 314 . See also Armstrong v. Manzo, 380 U.
S. 545 , 380 U. S. 550 (1965); Anti-Fascist Committee v. McGrath, 341 U.
S. 123 , 341 U. S.
168 -169 (1951) (Frankfurter, J., concurring). At the
very minimum, therefore, students facing suspension and the
consequent interference with a protected property interest must be
given some kind of notice and afforded some kind of
hearing. "Parties whose rights are to be affected are entitled to
be heard; and in order that they may enjoy that right they must
first be notified." Baldwin v.
Hale , 1 Wall. 223, 68 U. S. 233 (1864).

															It also appears from our cases that the timing and content of
the notice and the nature of the hearing will depend on appropriate
accommodation of the competing interests involved. Cafeteria
Workers v. McElroy, supra, at 367 U. S. 895 ; Morrissey v. Brewer, supra, at 408 U. S. 481 .
The student's interest is to avoid unfair or mistaken exclusion
from the educational process, with all of its unfortunate
consequences. The Due Process Clause will not shield him from
suspensions properly imposed, but it disserves both his interest
and the interest of the State if his suspension is, in fact,
unwarranted. The concern would be mostly academic if the
disciplinary process were a totally accurate, unerring process,
never mistaken and never Page 419 U. S. 580 unfair. Unfortunately, that is not the case, and no one suggests
that it is. Disciplinarians, although proceeding in utmost good
faith, frequently act on the reports and advice of others; and the
controlling facts and the nature of the conduct under challenge are
often disputed. The risk of error is not at all trivial, and it
should be guarded against if that may be done without prohibitive
cost or interference with the educational process.

															The difficulty is that our schools are vast and complex. Some
modicum of discipline and order is essential if the educational
function is to be performed. Events calling for discipline are
frequent occurrences, and sometimes require immediate, effective
action. Suspension is considered not only to be a necessary tool to
maintain order, but a valuable educational device. The prospect of
imposing elaborate hearing requirements in every suspension case is
viewed with great concern, and many school authorities may well
prefer the untrammeled power to act unilaterally, unhampered by
rules about notice and hearing. But it would be a strange
disciplinary system in an educational institution if no
communication was sought by the disciplinarian with the student in
an effort to inform him of his dereliction and to let him tell his
side of the story in order to make sure that an injustice is not
done. "[F]airness can rarely be obtained by secret, one-sided
determination of facts decisive of rights. . . ."

															"Secrecy is not congenial to truth-seeking, and
self-righteousness gives too slender an assurance of rightness. No
better instrument has been devised for arriving at truth than to
give a person in jeopardy of serious loss notice of the case
against him and opportunity to meet it." Anti-Fascist Committee v. McGrath, supra, at 341 U. S. 170 , 341 U. S.
171 -172 (Frankfurter, J., concurring). [ Footnote 9 ] Page 419 U. S. 581 We do not believe that school authorities must be totally free
from notice and hearing requirements if their schools are to
operate with acceptable efficiency. Students facing temporary
suspension have interests qualifying for protection of the Due
Process Clause, and due process requires, in connection with a
suspension of 10 days or less, that the student be given oral or
written notice of the charges against him and, if he denies them,
an explanation of the evidence the authorities have and an
opportunity to present his side of the story. The Clause requires
at least these rudimentary precautions against unfair or mistaken
findings of misconduct and arbitrary exclusion from school.
[ Footnote 10 ] Page 419 U. S. 582 There need be no delay between the time "notice" is given and
the time of the hearing. In the great majority of cases the
disciplinarian may informally discuss the alleged misconduct with
the student minutes after it has occurred. We hold only that, in
being given an opportunity to explain his version of the facts at
this discussion, the student first be told what he is accused of
doing and what the basis of the accusation is. Lower courts which
have addressed the question of the nature of the procedures
required in short suspension cases have reached the same
conclusion. Tate v. Board of Education, 453 F.2d 975, 979
(CA8 1972); Vail v. Board of Education, 354 F.
Supp. 592 , 603 (NH 1973). Since the hearing may occur almost
immediately following the misconduct, it follows that as a general
rule notice and hearing should precede removal of the student from
school. We agree with the District Court, however, that there are
recurring situations in which prior notice and hearing cannot be
insisted upon. Students whose presence poses a continuing danger to
persons or property or an ongoing threat of disrupting the academic
process may be immediately removed from school. In such cases, the
necessary notice and rudimentary hearing should follow Page 419 U. S. 583 as soon as practicable, as the District Court indicated.

															In holding as we do, we do not believe that we have imposed
procedures on school disciplinarians which are inappropriate in a
classroom setting. Instead we have imposed requirements which are,
if anything, less than a fair-minded school principal would impose
upon himself in order to avoid unfair suspensions. Indeed,
according to the testimony of the principal of Marion-Franklin High
School, that school had an informal procedure, remarkably similar
to that which we now require, applicable to suspensions generally
but which was not followed in this case. Similarly, according to
the most recent memorandum applicable to the entire CPSS, see n 1, supra, school principals in the CPSS are now required by
local rule to provide at least as much as the constitutional
minimum which we have described.

															We stop short of construing the Due Process Clause to require,
countrywide, that hearings in connection with short suspensions
must afford the student the opportunity to secure counsel, to
confront and cross-examine witnesses supporting the charge, or to
call his own witnesses to verify his version of the incident. Brief
disciplinary suspensions are almost countless. To impose in each
such case even truncated trial-type procedures might well overwhelm
administrative facilities in many places and, by diverting
resources, cost more than it would save in educational
effectiveness. Moreover, further formalizing the suspension process
and escalating its formality and adversary nature may not only make
it too costly as a regular disciplinary tool, but also destroy its
effectiveness as part of the teaching process.

															On the other hand, requiring effective notice and informal
hearing permitting the student to give his version of the events
will provide a meaningful hedge against erroneous action. At least
the disciplinarian will be alerted to the existence of disputes
about facts and arguments Page 419 U. S. 584 about cause and effect. He may then determine himself to summon
the accuser, permit cross-examination, and allow the student to
present his own witnesses. In more difficult cases, he may permit
counsel. In any event, his discretion will be more informed and we
think the risk of error substantially reduced.

															Requiring that there be at least an informal give-and-take
between student and disciplinarian, preferably prior to the
suspension, will add little to the factfinding function where the
disciplinarian himself has witnessed the conduct forming the basis
for the charge. But things are not always as they seem to be, and
the student will at least have the opportunity to characterize his
conduct and put it in what he deems the proper context.

															We should also make it clear that we have addressed ourselves
solely to the short suspension, not exceeding 10 days. Longer
suspensions or expulsions for the remainder of the school term, or
permanently, may require more formal procedures. Nor do we put
aside the possibility that, in unusual situations, although
involving only a short suspension, something more than the
rudimentary procedures will be required. IV The District Court found each of the suspensions involved here
to have occurred without a hearing, either before or after the
suspension, and that each suspension was therefore invalid and the
statute unconstitutional insofar as it permits such suspensions
without notice or hearing. Accordingly, the judgment is Affirmed. [ Footnote 1 ]

															At the time of the events involved in this case, the only
administrative regulation on this subject was § 1010.04 of the
Administrative Guide of the Columbus Public Schools which provided:
"Pupils may be suspended or expelled from school in accordance with
the provisions of Section 3313.66 of the Revised Code." Subsequent
to the events involved in this lawsuit, the Department of Pupil
Personnel of the CPSS issued three memoranda relating to suspension
procedures, dated August 16, 1971, February 21, 1973, and July 10,
1973, respectively. The first two are substantially similar to each
other, and require no factfinding hearing at any time in connection
with a suspension. The third, which was apparently in effect when
this case was argued, places upon the principal the obligation to
"investigate" "before commencing suspension procedures"; and
provides as part of the procedures that the principal shall discuss
the case with the pupil, so that the pupil may "be heard with
respect to the alleged offense," unless the pupil is "unavailable"
for such a discussion or "unwilling" to participate in it. The
suspensions involved in this case occurred, and records thereof
were made, prior to the effective date of these memoranda. The
District Court's judgment, including its expunction order, turns on
the propriety of the procedures existing at the time the
suspensions were ordered and by which they were imposed.

															[ Footnote 2 ]

															According to the testimony of Phillip Fulton, the principal of
one of the high schools involved in this case, there was an
informal procedure applicable at the Marion-Franklin High School.
It provided that, in the routine case of misconduct, occurring in
the presence of a teacher, the teacher would describe the
misconduct on a form provided for that purpose and would send the
student, with the form, to the principal's office. There, the
principal would obtain the student's version of the story, and, if
it conflicted with the teacher's written version, would send for
the teacher to obtain the teacher's oral version -- apparently in
the presence of the student. Mr. Fulton testified that, if a
discrepancy still existed, the teacher's version would be believed
and the principal would arrive at a disciplinary decision based on
it.

															[ Footnote 3 ]

															The plaintiffs sought to bring the action on behalf of all
students of the Columbus Public Schools suspended on or after
February, 1971, and a class action was declared accordingly. Since
the complaint sought to restrain the "enforcement" and "operation"
of a state statute "by restraining the action of any officer of
such state in the enforcement or execution of such statute," a
three-judge court was requested pursuant to 28 U.S.C. § 2281 and
convened. The students also alleged that the conduct for which they
could be suspended was not adequately defined by Ohio law. This
vagueness and overbreadth argument was rejected by the court below,
and the students have not appealed from this part of the court's
decision.

															[ Footnote 4 ]

															Fox was given two separate 10-day suspensions for misconduct
occurring on two separate occasions -- the second following
immediately upon her return to school. In addition to his
suspension, Sutton was transferred to another school.

															[ Footnote 5 ]

															Lopez was actually absent from school, following his suspension,
for over 20 days. This seems to have occurred because of a
misunderstanding as to the length of the suspension. A letter sent
to Lopez after he had been out for over 10 days purports to assume
that, being over compulsory school age, he was voluntarily staying
away. Upon asserting that this was not the case, Lopez was
transferred to anther school.

															[ Footnote 6 ]

															In its judgment, the court stated that the statute is
unconstitutional in that it provides "for suspension . . . without first affording the student due process of law." (Emphasis
supplied.) However, the language of the judgment must be read in
light of the language in the opinion, which expressly contemplates
that, under some circumstances, students may properly be removed
from school before a hearing is held, so long as the hearing
follows promptly.

															[ Footnote 7 ]

															Appellees assert in their brief that four of 12 randomly
selected Ohio colleges specifically inquire of the high school of
every applicant for admission whether the applicant has ever been
suspended. Brief for Appellees 34-35 and n. 40. Appellees also
contend that many employers request similar information. Ibid. Congress has recently enacted legislation limiting access to
information contained in the files of a school receiving federal
funds. Section 513 of the Education Amendments of 1974, Pub.L.
93-380, 88 Stat. 571, 20 U.S.C. § 1232g (1970 ed., Supp. IV),
adding § 438 to the General Education Provisions Act. That section
would preclude release of "verified reports of serious or recurrent
behavior patterns" to employers without written consent of the
student's parents. While subsection (b)(1)(b) permits release of
such information to "other schools . . . in which the student
intends to enroll," it does so only upon condition that the parent
be advised of the release of the information and be given an
opportunity at a hearing to challenge the content of the
information to insure against inclusion of inaccurate or misleading
information. The statute does not expressly state whether the
parent can contest the underlying basis for a suspension, the fact
of which is contained in the student's school record.

															[ Footnote 8 ]

															Since the landmark decision of the Court of Appeals for the
Fifth Circuit in Dixon v. Alabama State Board of
Education, 294 F.2d 150, cert. denied, 368 U.S. 930
(1961), the lower federal courts have uniformly held the Due
Process Clause applicable to decisions made by tax supported
educational institutions to remove a student from the institution
long enough for the removal to be classified as an expulsion. Hagopian v. Knowlton, 470 F.2d 201, 211 (CA2 1972); Wasson v. Trowbridge, 382 F.2d 807, 812 (CA2 1967); Esteban v. Central Missouri State College, 415 F.2d 1077,
1089 (CA8 1969) , cert. denied, 398 U.S. 965 (1970); Vought v. Van Buren Public Schools, 306 F.
Supp. 1388 (ED Mich.1969); Whitfield v.
Simpson, 312 F.
Supp. 889 (ED Ill.1970); Fielder v. Board of Education of
School District of Winnebago, Neb., 346 F.
Supp. 722 , 729 (Feb. 1972); DeJesus v.
Penberthy, 344 F. Supp.
70 , 74 (Conn.1972); Soglin v. Kauffman, 295 F.
Supp. 978 , 994 (WD Wis.1968), aff'd, 418 F.2d 163 (CA7
1969); Stricklin v. Regents of University of
Wisconsin, 297 F.
Supp. 416 , 420 (WD Wis.1969), appeal dismissed, 420
F.2d 1257 (CA7 1970); Buck v. Carter, 308 F.
Supp. 1246 (WD Wis.1970); General Order on Judicial Standards
of Procedure and Substance in Review of Student Discipline in Tax
Supported Institutions of Higher Education, 45 F.R.D. 133, 147-148
(WD Mo.1968) (en banc). The lower courts have been less uniform,
however, on the question whether removal from school for some
shorter period may ever be so trivial a deprivation as to require
no process, and, if so, how short the removal must be to qualify.
Courts of Appeals have held or assumed the Due Process Clause
applicable to long suspensions, Pervis v. LaMarque Ind. School
Dist., 466 F.2d 1054 (CA5 1972); to indefinite suspensions, Sullivan v. Houston Ind. School Dist., 475 F.2d 1071
(CA5), cert. denied, 414 U.S. 1032 (1973); to the addition
of a 30-day suspension to a 10-day suspension, Williams v. Dade
County School Board, 441 F.2d 299 (CA5 1971); to a 10-day
suspension, Black Students of North Fort Myers Jr.-Sr. High
School v. Williams, 470 F.2d 957 (CA5 1972); to "mild"
suspensions, Farrell v. Joel, 437 F.2d 160 (CA2 1971), and Tate v. Board of Education, 453 F.2d 975 (CA8 1972); and
to a three-day suspension, Shanley v. Northeast Ind. School
Dist., Bear County, Texas, 462 F.2d 960, 967 n. 4 (CA5 1972);
but inapplicable to a seven-day suspension, Linwood v. Board of
Ed. of City of Peoria, 463 F.2d 763 (CA7), cert.
denied, 409 U.S. 1027 (1972); to a three-day suspension, Dunn v. Tyler Ind. School Dist., 460 F.2d 137 (CA5 1972);
to a suspension for not "more than a few days," Murray v. West
Baton Rouge Parish School Board, 472 F.2d 438 (CA5 1973); and
to all suspensions, no matter how short, Black Coalition v.
Portland School District No. 1, 484 F.2d 1040 (CA9 1973). The
Federal District Courts have held the Due Process Clause applicable
to an interim suspension pending expulsion proceedings in Stricklin v. Regents of University of Wisconsin, supra, and Buck v. Carter, supra; to a 10-day suspension, Banks v. Board of Public Instruction of Dade
County, 314 F.
Supp. 285 (SD Fla.1970), vacated, 401 U.S. 988 (1971)
(for entry of a fresh decree so that a timely appeal might be taken
to the Court of Appeals), aff'd, 450 F.2d 1103 (CA5 1971);
to suspensions of under five days, Vail v. Board of Education
of Portsmouth School Dist., 354 F.
Supp. 592 (NH 1973); and to all suspensions, Mills v. Board
of Education of the Dist. of Columbia, 348 F.
Supp. 866 (DC 1972), and Givens v. Poe, 346 F.
Supp. 202 (WDNC 1972); but inapplicable to suspensions of 25
days, Hernandez v. School District Number One, Denver,
Colorado, 315 F.
Supp. 289 (Colo.1970); to suspensions of 10 days, Baker v.
Downey City Board of Education, 307 F.
Supp. 517 (CD Cal.1969); and to suspensions of eight days, Hatter v. Los Angeles City High School
District, 310 F.
Supp. 1309 (CD Cal.1970), rev'd on other grounds, 452
F.2d 673 (CA9 1971). In the cases holding no process necessary in
connection with short suspensions, it is not always clear whether
the court viewed the Due Process Clause as inapplicable, or simply
felt that the process received was "due" even in the absence of
some kind of hearing procedure.

															[ Footnote 9 ]

															The facts involved in this case illustrate the point. Betty
Crome was suspended for conduct which did not occur on school
grounds, and for which mass arrests were made -- hardly
guaranteeing careful individualized factfinding by the police or by
the school principal. She claims to have been involved in no
misconduct. However, she was suspended for 10 days without ever
being told what she was accused of doing or being given an
opportunity to explain her presence among those arrested.
Similarly, Dwight Lopez was suspended, along with many others, in
connection with a disturbance in the lunchroom. Lopez says he was
not one of those in the lunchroom who was involved. However, he was
never told the basis for the principal's belief that he was
involved, nor was he ever given an opportunity to explain his
presence in the lunchroom. The school principals who suspended
Crome and Lopez may have been correct on the merits, but it is
inconsistent with the Due Process Clause to have made the decision
that misconduct had occurred without at some meaningful time giving
Crome or Lopez an opportunity to persuade the principals
otherwise.

															We recognize that both suspensions were imposed during a time of
great difficulty for the school administrations involved. At least
in Lopez' case, there may have been an immediate need to send home
everyone in the lunchroom in order to preserve school order and
property; and the administrative burden of providing 75 "hearings"
of any kind is considerable. However, neither factor justifies a
disciplinary suspension without at any time gathering facts
relating to Lopez specifically, confronting him with them, and
giving him an opportunity to explain.

															[ Footnote 10 ]

															Appellants point to the fact that some process is provided under
Ohio law by way of judicial review. Ohio Rev.Code Ann. § 2506.01
(Supp. 1973). Appellants do not cite any case in which this general
administrative review statute has been used to appeal from a
disciplinary decision by a school official. If it be assumed that
it could be so used, it is for two reasons insufficient to save
inadequate procedures at the school level. First, although new
proof may be offered in a § 2501.06 proceeding, Shaker Coventry
Corp. v. Shaker Heights Planning Comm'n, 18 Ohio Op.2d 272,
176 N.E.2d 332 (1961), the proceeding is not de novo. In re Locke, 33 Ohio App.2d 177, 294 N.E.2d 230 (1972).
Thus, the decision by the school -- even if made upon inadequate
procedures -- is entitled to weight in the court proceeding.
Second, without a demonstration to the contrary, we must assume
that delay will attend any § 2501.06 proceeding, that the
suspension will not be stayed pending hearing, and that the student
meanwhile will irreparably lose his educational benefits.

															MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE
BLACKMUN, and MR. JUSTICE REHNQUIST join, dissenting.

															The Court today invalidates an Ohio statute that permits student
suspensions from school without a hearing Page 419 U. S. 585 "for not more than ten days." [ Footnote 2/1 ] The decision unnecessarily opens avenues
for judicial intervention in the operation of our public schools
that may affect adversely the quality of education. The Court holds
for the first time that the federal courts, rather than educational
officials and state legislatures, have the authority to determine
the rules applicable to routine classroom discipline of children
and teenagers in the public schools. It justifies this
unprecedented intrusion into the process of elementary and
secondary education by identifying a new constitutional right: the
right of a student not to be suspended for as much as a single day
without notice and a due process hearing either before or promptly
following the suspension. [ Footnote
2/2 ]

															The Court's decision rests on the premise that, under Ohio law,
education is a property interest protected by the Fourteenth
Amendment's Due Process Clause, and therefore that any suspension
requires notice and a hearing. [ Footnote 2/3 ] In my view, a student's interest in
education is Page 419 U. S. 586 not infringed by a suspension within the limited period
prescribed by Ohio law. Moreover, to the extent that there may be
some arguable infringement, it is too speculative, transitory, and
insubstantial to justify imposition of a constitutional rule. I Although we held in San Antonio Independent School Dist. v.
Rodriguez, 411 U. S. 1 , 411 U. S. 35 (1973), that education is not a right protected by the
Constitution, Ohio has elected by statute to provide free education
for all youths age six to 21, Ohio Rev.Code Ann. §§ 3313.48,
3313.64 (1972 and Supp. 1973), with children under 18 years of age
being compelled to attend school. § 3321.01 et seq. State
law, therefore, extends the right of free public school education
to Ohio students in accordance with the education laws of that
State. The right or entitlement to education so created is
protected in a proper case by the Due Process Clause. See,
e.g., Board of Regents v. Roth, 408 U.
S. 564 (1972); Arnett v. Kennedy, 416 U.
S. 134 , 416 U. S. 164 (1974) (POWELL, J., concurring). In my view, this is not such a
case.

															In identifying property interests subject to due process
protections, the Court's past opinions make clear that these
interests "are created and their dimensions are defined by
existing rules or understandings that stem from an independent
source such as state law." Board of Regents v. Roth,
supra, at 408 U. S. 577 (emphasis supplied). The Ohio statute that creates the right to a
"free" education also explicitly authorizes a principal to suspend
a student for as much as 10 days. Ohio Rev.Code Ann. §§ 3313.48,
3313.64, 3313.66 (1972 and Supp. 1973). Thus, the very legislation
which "defines" the "dimension" of the student's entitlement, while
providing a right to education generally, does not establish this
right free of discipline imposed in accord with Ohio law. Rather,
the right is Page 419 U. S. 587 encompassed in the entire package of statutory provisions
governing education in Ohio -- of which the power to suspend is
one.

															The Court thus disregards the basic structure of Ohio law in
posturing this case as if Ohio had conferred an unqualified right
to education, thereby compelling the school authorities to conform
to due process procedures in imposing the most routine discipline.
[ Footnote 2/4 ]

															But however one may define the entitlement to education provided
by Ohio law, I would conclude that a deprivation of not more than
10 days' suspension from school, imposed as a routine disciplinary
measure, does not assume constitutional dimensions. Contrary to the
Court's assertion, our cases support, rather than "refute"
appellants' Page 419 U. S. 588 argument that "the Due Process Clause . . . comes into play only
when the State subjects a student to a severe detriment or
grievous loss.'" Ante at 419 U. S. 575 .
Recently, the Court reiterated precisely this standard for
analyzing due process claims: "Whether any procedural protections are due depends on
the extent to which an individual will be 'condemned to suffer grievous loss.' Joint Anti-Fascist Refugee Committee
v. McGrath, 341 U. S. 123 , 341 U. S.
168 (1951) (Frankfurter, J., concurring), quoted in Goldberg v. Kelly, 397 U. S. 254 , 397 U. S.
263 (1970)." Morrissey v. Brewer, 408 U. S. 471 , 408 U. S. 481 (1972) (emphasis supplied). In Morrissey, we applied that
standard to require due process procedures for parole revocation on
the ground that revocation "inflicts a grievous loss' on the
parolee, and often on others." Id. at 408 U. S. 482 . See also Board of Regents v. Roth, 408 U.S. at 408 U. S. 573 ("seriously damage" reputation and standing); Bell v.
Burson, 402 U. S. 535 , 402 U. S. 539 (1971) ("important interests of the licensees"); Boddie v.
Connecticut, 401 U. S. 371 , 401 U. S. 379 (1971) ("significant property interest"). [ Footnote 2/5 ] The Ohio suspension statute allows no serious or significant Page 419 U. S. 589 infringement of education. It authorizes only a maximum
suspension of eight school days, less than 5% of the normal 180-day
school year. Absences of such limited duration will rarely affect a
pupil's opportunity to learn or his scholastic performance. Indeed,
the record in this case reflects no educational injury to
appellees. Each completed the semester in which the suspension
occurred and performed at least as well as he or she had in
previous years. [ Footnote 2/6 ]
Despite the Court's unsupported speculation that a suspended
student could be "seriously damage[d]" ( ante at 419 U. S.
575 ), there is no factual showing of any such damage to
appellees.

															The Court also relies on a perceived deprivation of "liberty"
resulting from any suspension, arguing -- again without factual
support in the record pertaining to these appellees -- that a
suspension harms a student's reputation. In view of the Court's
decision in Board of Regents v. Roth, supra, I would have
thought that this argument was plainly untenable. Underscoring the
need for "serious damage" to reputation, the Roth Court
held that a nontenured teacher who is not rehired by a public
university could not claim to suffer sufficient reputational injury
to require constitutional protections. [ Footnote 2/7 ] Surely a brief suspension is of less
serious consequence to the reputation of a teenage student. II In prior decisions, this Court has explicitly recognized that
school authorities must have broad discretionary authority Page 419 U. S. 590 in the daily operation of public schools. This includes wide
latitude with respect to maintaining discipline and good order.
Addressing this point specifically, the Court stated in Tinker
v. Des Moines School Dist., 393 U. S. 503 , 393 U. S. 507 (1969):

															"[T]he Court has repeatedly emphasized the need for affirming
the comprehensive authority of the States and of school officials,
consistent with fundamental constitutional safeguards, to prescribe
and control conduct in the schools. [ Footnote 2/8 ]"

															Such an approach properly recognizes the unique nature of public
education and the correspondingly limited role of the judiciary in
its supervision. In Epperson v. Arkansas, 393 U. S.
97 , 393 U. S. 104 (1968), the Court stated:

															"By and large, public education in our Nation is committed to
the control of state and local authorities. Courts do not and
cannot intervene in the resolution of conflicts which arise in the
daily operation of school systems and which do not directly and
sharply implicate basic constitutional values."

															The Court today turns its back on these precedents. It can
hardly seriously be claimed that a school principal's decision to
suspend a pupil for a single day would "directly and sharply
implicate basic constitutional values." Ibid. Moreover, the Court ignores the experience of mankind, as well
as the long history of our law, recognizing Page 419 U. S. 591 that there are differences which must be accommodated
in determining the rights and duties of children as compared with
those of adults. Examples of this distinction abound in our law: in
contracts, in tort, in criminal law and procedure, in criminal
sanctions and rehabilitation, and in the right to vote and to hold
office. Until today, and except in the special context of the First
Amendment issue in Tinker, the educational rights of
children and teenagers in the elementary and secondary schools have
not been analogized to the rights of adults or to those accorded
college students. Even with respect to the First Amendment, the
rights of children have not been regarded as "coextensive with
those of adults." Tinker, supra, at 393 U. S. 515 (STEWART, J., concurring). A I turn now to some of the considerations which support the
Court's former view regarding the comprehensive authority of the
States and school officials "to prescribe and control conduct in
the schools." Id. at 393 U. S. 507 .
Unlike the divergent and even sharp conflict of interests usually
present where due process rights are asserted, the interests here
implicated -- of the State through its schools and of the pupils --
are essentially congruent.

															The State's interest, broadly put, is in the proper functioning
of its public school system for the benefit of all pupils and the
public generally. Few rulings would interfere more extensively in
the daily functioning of schools than subjecting routine discipline
to the formalities and judicial oversight of due process.
Suspensions are one of the traditional means -- ranging from
keeping a student after class to permanent expulsion -- used to
maintain discipline in the schools. It is common knowledge that
maintaining order and reasonable decorum Page 419 U. S. 592 in school buildings and classrooms is a major educational
problem, and one which has increased significantly in magnitude in
recent years. [ Footnote 2/9 ] Often
the teacher, in protecting the rights of other children to an
education (if not his or their safety), is compelled to rely on the
power to suspend.

															The facts set forth in the margin [ Footnote 2/10 ] leave little room for doubt as to the
magnitude of the disciplinary problem in the public schools, or as
to the extent of reliance upon the right to suspend. They also
demonstrate that, if hearings were required for a substantial
percentage of short-term suspensions, school authorities would have
time to do little else. B The State's generalized interest in maintaining an orderly
school system is not incompatible with the individual Page 419 U. S. 593 interest of the student. Education in any meaningful sense
includes the inculcation of an understanding in each pupil of the
necessity of rules and obedience thereto. This understanding is no
less important than learning to read and write. One who does not
comprehend the meaning and necessity of discipline is handicapped
not merely in his education but throughout his subsequent life. In
an age when the home and church play a diminishing role in shaping
the character and value judgments of the young, a heavier
responsibility falls upon the schools. When an immature student
merits censure for his conduct, he is rendered a disservice if
appropriate sanctions are not applied or if procedures for their
application are so formalized as to invite a challenge to the
teacher's authority [ Footnote
2/11 ] -- an invitation which rebellious or even merely spirited
teenagers are likely to accept.

															The lesson of discipline is not merely a matter of the student's
self-interest in the shaping of his own character and personality;
it provides an early understanding of the relevance to the social
compact of respect for the rights of others. The classroom is the
laboratory in which this lesson of life is best learned. Mr.
Justice Black summed it up:

															"School discipline, like parental discipline, is an integral and
important part of training our children to be good citizens -- to
be better citizens." Tinker, 393 U.S. at 393 U. S. 524 (dissenting opinion).

															In assessing in constitutional terms the need to protect pupils
from unfair minor discipline by school authorities, the Court
ignores the commonality of interest of the State and pupils in the
public school system. Rather, it thinks in traditional judicial
terms of an adversary Page 419 U. S. 594 situation. To be sure, there will be the occasional pupil
innocent of any rule infringement who is mistakenly suspended or
whose infraction is too minor to justify suspension. But, while
there is no evidence indicating the frequency of unjust
suspensions, common sense suggests that they will not be numerous
in relation to the total number, and that mistakes or injustices
will usually be righted by informal means. C One of the more disturbing aspects of today's decision is its
indiscriminate reliance upon the judiciary, and the adversary
process, as the means of resolving many of the most routine
problems arising in the classroom. In mandating due process
procedures the Court misapprehends the reality of the normal
teacher-pupil relationship. There is an ongoing relationship, one
in which the teacher must occupy many roles -- educator, adviser,
friend, and, at times, parent-substitute. [ Footnote 2/12 ] It is rarely adversary in nature except
with respect to the chronically disruptive or insubordinate pupil
whom the teacher must be free to discipline without frustrating
formalities. [ Footnote 2/13 ] Page 419 U. S. 595 The Ohio statute, providing as it does for due notice both to
parents and the Board, is compatible with the teacher-pupil
relationship and the informal resolution of mistaken disciplinary
action. We have relied for generations upon the experience, good
faith and dedication of those who staff our public schools,
[ Footnote 2/14 ] and the
nonadversary means of airing grievances that always have been
available to pupils and their parents. One would have thought
before today's opinion that this informal method of resolving
differences was more compatible with the interests of all concerned
than resort to any constitutionalized procedure, however blandly it
may be defined by the Court. D In my view, the constitutionalizing of routine classroom
decisions not only represents a significant and unwise extension of
the Due Process Clause, but it also was quite unnecessary in view
of the safeguards prescribed by the Ohio statute. This is
demonstrable from a comparison Page 419 U. S. 596 of what the Court mandates as required by due process with the
protective procedures it finds constitutionally insufficient

															The Ohio statute, limiting suspensions to not more than eight
school days, requires written notice including the "reasons
therefor" to the student's parents and to the Board of Education
within 24 hours of any suspension. The Court only requires oral or
written notice to the pupil, with no notice being required to the
parents or the Board of Education. The mere fact of the statutory
requirement is a deterrent against arbitrary action by the
principal. The Board, usually elected by the people and sensitive
to constituent relations, may be expected to identify a principal
whose record of suspensions merits inquiry. In any event, parents
placed on written notice may exercise their rights as constituents
by going directly to the Board or a member thereof if dissatisfied
with the principal's decision.

															Nor does the Court's due process "hearing" appear to provide
significantly more protection than that already available. The
Court holds only that the principal must listen to the student's
"version of the events," either before suspension or thereafter --
depending upon the circumstances. Ante at 419 U. S. 583 .
Such a truncated "hearing" is likely to be considerably less
meaningful than the opportunities for correcting mistakes already
available to students and parents. Indeed, in this case all of the
students and parents were offered an opportunity to attend a
conference with school officials.

															In its rush to mandate a constitutional rule, the Court appears
to give no weight to the practical manner in which suspension
problems normally would be worked out under Ohio law. [ Footnote 2/15 ] One must doubt, then,
whether Page 419 U. S. 597 the constitutionalization of the student-teacher relationship,
with all of its attendant doctrinal and practical difficulties,
will assure in any meaningful sense greater protection than that
already afforded under Ohio law. III No one can foresee the ultimate frontiers of the new "thicket"
the Court now enters. Today's ruling appears to sweep within the
protected interest in education a multitude of discretionary
decisions in the educational process. Teachers and other school
authorities are required to make many decisions that may have
serious consequences for the pupil. They must decide, for example,
how to grade the student's work, whether a student passes or fails
a course, [ Footnote 2/16 ] whether
he is to be promoted, whether he is required to take certain
subjects, whether he may be excluded from interscholastic athletics
[ Footnote 2/17 ] or other
extracurricular activities, whether he may be removed from one
school and sent to another, whether he may be bused long distances
when available schools are nearby, and whether he should be placed
in a "general," "vocational," or "college-preparatory" track.

															In these and many similar situations, claims of impairment of
one's educational entitlement identical in principle to those
before the Court today can be asserted with equal or greater
justification. Likewise, in many of these situations, the pupil can
advance the same types of speculative and subjective injury given
critical weight in this case. The District Court, relying upon
generalized opinion evidence, concluded that a suspended student
may suffer psychological injury in one or more of Page 419 U. S. 598 the ways set forth in the margin below. [ Footnote 2/18 ] The Court appears to adopt this
rationale. See ante at 419 U. S.
575 .

															It hardly need be said that, if a student, as a result of a
day's suspension, suffers "a blow" to his "self esteem," "feels
powerless," views "teachers with resentment," or feels "stigmatized
by his teachers," identical psychological harms will flow from many
other routine and necessary school decisions. The student who is
given a failing grade, who is not promoted, who is excluded from
certain extracurricular activities, who is assigned to a school
reserved for children of less than average ability, or who is
placed in the "vocational", rather than the "college preparatory,"
track, is unlikely to suffer any less psychological injury than if
he were suspended for a day for a relatively minor infraction.
[ Footnote 2/19 ] Page 419 U. S. 599 If, as seems apparent, the Court will now require due process
procedures whenever such routine school decisions are challenged,
the impact upon public education will be serious indeed. The
discretion and Judgment of federal courts across the land often
will be substituted for that of the 50 state legislatures, the
14,000 school boards, [ Footnote
2/20 ] and the 2,000,000 [ Footnote
2/21 ] teachers who heretofore have been responsible for the
administration of the American public school system. If the Court
perceives a rational and analytically sound distinction between the
discretionary decision by school authorities to suspend a pupil for
a brief period, and the types of discretionary school decisions
described above, it would be prudent to articulate it in today's
opinion. Otherwise, the federal courts should prepare themselves
for a vast new role in society. IV Not so long ago, state deprivations of the most significant
forms of state largesse were not thought to require due process
protection on the ground that the deprivation resulted only in the
loss of a state-provided "benefit." E.g., Bailey v.
Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46 (1950), aff'd
by an equally divided Court, 341 U.S. 918 (1951). In recent
years the Court, wisely in my view, has rejected the "wooden
distinction between rights' and `privileges,'" Board of
Regents v. Roth, 408 U.S. at 408 U. S. 571 ,
and looked instead to the significance of the state-created or
state-enforced right and to Page 419 U. S. 600 the substantiality of the alleged deprivation. Today's opinion
appears to abandon this reasonable approach by holding, in effect,
that government infringement of any interest to which a person is
entitled, no matter what the interest or how inconsequential the
infringement, requires constitutional protection. As it is
difficult to think of any less consequential infringement than
suspension of a junior high school student for a single day, it is
equally difficult to perceive any principled limit to the new reach
of procedural due process. [ Footnote
2/22 ]

															[ Footnote 2/1 ]

															The Ohio statute, Ohio Rev.Code Ann. § 3313.66 (1972), actually
is a limitation on the time-honored practice of school authorities
themselves determining the appropriate duration of suspensions. The
statute allows the superintendent or principal of a public school
to suspend a pupil "for not more than ten days . . ."
(italics supplied); and requires notification to the parent or
guardian in writing within 24 hours of any suspension.

															[ Footnote 2/2 ]

															Section 3313.66 also provides authority for the expulsion of
pupils, but requires a hearing thereon by the school board upon
request of a parent or guardian. The rights of pupils expelled are
not involved in this case, which concerns only the limited
discretion of school authorities to suspend for not more than 10
days. Expulsion, usually resulting at least in loss of a school
year or semester is an incomparably more serious matter than the
brief suspension, traditionally used as the principal sanction for
enforcing routine discipline. The Ohio statute recognizes this
distinction.

															[ Footnote 2/3 ]

															The Court speaks of "exclusion from the educational process for
more than a trivial period . . . ," ante at 419 U. S. 576 ,
but its opinion makes clear that even one day's suspension invokes
the constitutional procedure mandated today.

															[ Footnote 2/4 ]

															The Court apparently reads into Ohio law by implication a
qualification that suspensions may be imposed only for "cause,"
thereby analogizing this case to the civil service laws considered
in Arnett v. Kennedy, 416 U. S. 134 (1974). To be sure, one may assume that pupils are not suspended at
the whim or caprice of the school official, and the statute does
provide for notice of the suspension with the "reasons therefor."
But the same statute draws a sharp distinction between suspension
and the far more drastic sanction of expulsion. A hearing is
required only for the latter. To follow the Court's analysis, one
must conclude that the legislature nevertheless intended -- without
saying so -- that suspension also is of such consequence that it
may be imposed only for causes which can be justified at a hearing.
The unsoundness of reading this sort of requirement into the
statute is apparent from a comparison with Arnett. In that
case, Congress expressly provided that nonprobationary federal
employees should be discharged only for "cause." This requirement
reflected congressional recognition of the seriousness of
discharging such employees. There simply is no analogy between
termination of nonprobationary employment of a civil service
employee and the suspension of a public school pupil for not more
than 10 days. Even if the Court is correct in implying some concept
of justifiable cause in the Ohio procedure, it could hardly be
stretched to the constitutional proportions found present in Arnett. [ Footnote 2/5 ]

															Indeed, the Court itself quotes from a portion of Mr. Justice
Frankfurter's concurrence in Anti-Fascist Refugee Committee v.
McGrath, 341 U. S. 123 , 341 U. S. 171 (1951), which explicitly refers to "a person in jeopardy of serious loss. " See ante at 419 U. S. 580 (emphasis supplied).

															Nor is the " de minimis " standard referred to by the
Court relevant in this case. That standard was first stated by Mr.
Justice Harlan in a concurring opinion in Sniadach v. Family
Finance Corp., 395 U. S. 337 , 395 U. S. 342 (1969), and then quoted in a footnote to the Court's opinion in Fuentes v. Shevin, 407 U. S. 67 , 407 U. S. 90 n.
21 (1972). Both Sniadach and Fuentes, however,
involved resolution of property disputes between two private
parties claiming an interest in the same property. Neither case
pertained to an interest conferred by the State.

															[ Footnote 2/6 ]

															2 App. 163-171 (testimony of Norval Goss, Director of Pupil
Personnel). See opinion of the three-judge court, 372 F.
Supp. 1279 , 1291 (SD Ohio 1973).

															[ Footnote 2/7 ] See also Wisconsin v. Constantineau, 400 U.
S. 433 , 400 U. S. 437 (1971), quoting the "grievous loss" standard first articulated in Anti-Fascist Committee v. McGrath, supra. [ Footnote 2/8 ]

															In dissent on the First Amendment issue, Mr. Justice Harlan
recognized the Court's basic agreement on the limited role of the
judiciary in overseeing school disciplinary decisions:

															"I am reluctant to believe that there is any disagreement
between the majority and myself on the proposition that school
officials should be accorded the widest authority in maintaining
discipline and good order in their institutions."

															393 U.S. at 393 U. S.
526 .

															[ Footnote 2/9 ] See generally S. Bailey, Disruption in Urban Secondary
Schools (1970), which summarizes some of the recent surveys on
school disruption. A Syracuse University study; for example, found
that 85% of the schools responding reported some type of
significant disruption in the years 1967-1970.

															[ Footnote 2/10 ]

															An amicus brief filed by the Children's Defense Fund
states that, at least 10% of the junior and senior high
school students in the States sampled were suspended one or
more times in the 1972-1973 school year. The data on which
this conclusion rests were obtained from an extensive survey
prepared by the Office for Civil Rights of the Department of
Health, Education, and Welfare. The Children's Defense Fund
reviewed the suspension data for five States -- Arkansas, Maryland,
New Jersey, Ohio, and South Carolina.

															Likewise, an amicus brief submitted by several school
associations in Ohio indicates that the number of suspensions is
significant: in 1972-1973, 4,054 students out of a school
enrollment of 81,007 were suspended in Cincinnati; 7,352 of 57,000
students were suspended in Akron; and 14,598 of 142,053 students
were suspended in Cleveland. See also the Office of Civil
Rights Survey, supra, finding that approximately 20,000
students in New York City, 12,000 in Cleveland, 9,000 in Houston,
and 9,000 in Memphis were suspended at least once during the
1972-1973 school year. Even these figures are probably somewhat
conservative since some schools did not reply to the survey.

															[ Footnote 2/11 ] See generally J. Dobson, Dare to Discipline (1970).

															[ Footnote 2/12 ]

															The role of the teacher in our society historically has been an
honored and respected one, rooted in the experience of decades that
has left for most of us warm memories of our teachers, especially
those of the formative years of primary and secondary
education.

															[ Footnote 2/13 ]

															In this regard, the relationship between a student and teacher
is manifestly different from that between a welfare administrator
and a recipient ( see Goldberg v. Kelly, 397 U.
S. 254 (1970)), a motor vehicle department and a driver
( see Bell v. Burson, 402 U. S. 535 (1971)), a debtor and a creditor ( see Sniadach v. Family
Finance Corp., supra; Fuentes v. Shevin, supra; Mitchell v. W. T.
Grant Co., 416 U. S. 600 (1974)), a parole officer and a parolee ( see Morrissey v.
Brewer, 408 U. S. 471 (1972)), or even an employer and an employee ( see Arnett v.
Kennedy, 416 U. S. 134 (1974)). In many of these noneducation settings there is -- for
purposes of this analysis -- a "faceless" administrator dealing
with an equally "faceless" recipient of some form of government
benefit or license; in others, such as the garnishment and
repossession cases, there is a conflict of interest relationship.
Our public school system, however, is premised on the belief that
teachers and pupils should not be "faceless" to each other. Nor
does the educational relationship present a typical "conflict of
interest." Rather, the relationship traditionally is marked by a
coincidence of interests.

															Yet the Court, relying on cases such as Sniadach and Fuentes, apparently views the classroom of teenagers as
comparable to the competitive and adversary environment of the
adult, commercial world.

															[ Footnote 2/14 ]

															A traditional factor in any due process analysis is "the
protection implicit in the office of the functionary whose conduct
is challenged. . . ." Anti-Fascist Committee v. McGrath, 341 U.S. at 341 U. S. 163 (Frankfurter, J., concurring). In the public school setting, there
is a high degree of such protection, since a teacher has
responsibility for, and a commitment to, his pupils that is absent
in other due process contexts.

															[ Footnote 2/15 ]

															The Court itself recognizes that the requirements it imposes
are, "if anything, less than a fair-minded school principal would
impose upon himself in order to avoid unfair suspensions." Ante at 419 U. S.
583 .

															[ Footnote 2/16 ] See Connelly v. University of Vermont, 244 F.
Supp. 156 (Vt.1956).

															[ Footnote 2/17 ] See Kelley v. Metropolitan County Board of Education of
Nashville, 293 F.
Supp. 485 (MD Tenn.1968).

															[ Footnote 2/18 ]

															The psychological injuries so perceived were as follows:

															"1. The suspension is a blow to the student's self-esteem."

															"2. The student feels powerless and helpless."

															"3. The student views school authorities and teachers with
resentment, suspicion and fear."

															"4. The student learns withdrawal as a mode of problem
solving."

															"5. The student has little perception of the reasons for the
suspension. He does not know what offending acts he committed."

															"6. The student is stigmatized by his teachers and school
administrators as a deviant. They expect the student to be a
troublemaker in the future."

															372 F. Supp. at 1292.

															[ Footnote 2/19 ]

															There is, no doubt, a school of modern psychological or
psychiatric persuasion that maintains that any discipline of the
young is detrimental. Whatever one may think of the wisdom of this
unproved theory, it hardly affords dependable support for a
constitutional decision. Moreover, even the theory's proponents
would concede that the magnitude of injury depends primarily upon
the individual child or teenager. A classroom reprimand by the
teacher may be more traumatic to the shy, timid introvert than
expulsion would be to the aggressive, rebellious extrovert. In my
view, we tend to lose our sense of perspective and proportion in a
case of this kind. For average, normal children -- the vast
majority -- suspension for a few days is simply not a
detriment; it is a commonplace occurrence, with some 105 of all
students being suspended; it leaves no scars; affects no
reputations; indeed, it often may be viewed by the young as a badge
of some distinction and a welcome holiday.

															[ Footnote 2/20 ]

															This estimate was supplied by the National School Board
Association, Washington, D.C.

															[ Footnote 2/21 ] See U.S. Office of Education, Elementary and Secondary
Public School Statistics, 1972-1973.

															[ Footnote 2/22 ]

															Some half dozen years ago, the Court extended First Amendment
rights under limited circumstances to public school pupils. Mr.
Justice Black, dissenting, viewed the decision as ushering in

															"an entirely new era in which the power to control pupils by the
elected 'officials of state supported public schools' . . . is in
ultimate effect transferred to the Supreme Court." Tinker v. Des Moines School Dist., 393 U.
S. 503 , 393 U. S. 515 (1969). There were some who thought Mr. Justice Black was unduly
concerned. But his prophecy is now being fulfilled. In the few
years since Tinker, there have been literally hundreds of
cases by schoolchildren alleging violation of their constitutional
rights. This flood of litigation, between pupils and school
authorities, was triggered by a narrowly written First Amendment
opinion which I could well have joined on its facts. One can only
speculate as to the extent to which public education will be
disrupted by giving every schoolchild the power to contest in
court any decision made by his teacher which arguably
infringes the state-conferred right to education.

Summary: In Goss v. Lopez, the U.S. Supreme Court ruled that students facing temporary suspension from a public school have property and liberty interests protected under the Due Process Clause of the Fourteenth Amendment. The Court held that Ohio could not withdraw the right to an education without fair procedures to determine misconduct, and that suspensions may not be imposed arbitrarily. Due process requires notice of charges, an opportunity to respond, and a hearing before suspension, except in emergency situations. This case established students' constitutional rights in school discipline and recognized the potential harm of suspensions on students' reputations and future opportunities.


U.S. Supreme Court Williamson v. Lee Optical, Inc., 348
U.S. 483 (1955) Williamson v. Lee Optical of
Oklahoma, Inc. No. 184 Argued March 2, 1955 Decided March 28,
1955* 348
U.S. 483 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF
OKLAHOMA Syllabus 1. Provisions of an Oklahoma statute making it unlawful for any
person not a licensed optometrist or ophthalmologist to fit lenses
to a face or to duplicate or replace into frames lenses or other
optical appliances except upon written prescriptive authority of an
Oklahoma licensed ophthalmologist or optometrist, are not invalid
under the Due Process Clause of the Fourteenth Amendment. Roschen v. Ward, 279 U. S. 337 . Pp. 348 U. S.
484 -488.

															2. To subject opticians to this regulatory system while
exempting all sellers of ready-to-wear glasses does not violate the
Equal Protection Clause of the Fourteenth Amendment. Pp. 348 U. S.
488 -489.

															3. A provision making it unlawful to solicit the sale of frames,
mountings or any other optical appliances does not violate the Due
Process Clause of the Fourteenth Amendment. Pp. 348 U. S.
489 -490.

															4. A provision forbidding any retail merchandiser to rent space,
sub-lease departments, or otherwise permit any person "purporting
to do eye examination or visual care" to occupy space in a retail
store does not violate the Due Process Clause of the Fourteenth
Amendment. Pp. 348 U. S.
490 -491.

															5. A provision making it unlawful to solicit the sale of
spectacles, eyeglasses, lenses and prisms by the use of advertising
media is constitutional. P. 348 U. S.
491 . 120 F.
Supp. 128 , affirmed in part and reversed in part. Page 348 U. S. 484 MR. JUSTICE DOUGLAS delivered the opinion of the Court.

															This suit was instituted in the District Court to have an
Oklahoma law, 59 Okl.Stat.Ann. §§ 941-947, Okl.Laws 1953, c. 13, §§
1-8, declared unconstitutional and to enjoin state officials from
enforcing it, 28 U.S.C. §§ 2201, 2202, 2281, for the reason that it
allegedly violated various provisions of the Federal Constitution.
The matter was heard by a District Court of three judges, Page 348 U. S. 485 as required by 28 U.S.C. § 2281. That court held certain
provisions of the law unconstitutional. 120 F.
Supp. 128 . The case is here by appeal, 28 U.S.C. § 1253.

															The District Court held unconstitutional portions of three
sections of the Act. First, it held invalid under the Due Process
Clause of the Fourteenth Amendment the portions of § 2 which make
it unlawful for any person not a licensed optometrist or
ophthalmologist to fit lenses to a face or to duplicate or replace
into frames lenses or other optical appliances, except upon written
prescriptive authority of an Oklahoma licensed ophthalmologist or
optometrist. [ Footnote 1 ] Page 348 U. S. 486 An ophthalmologist is a duly licensed physician who specializes
in the care of the eyes. An optometrist examines eyes for
refractive error, recognizes (but does not treat) diseases of the
eye, and fills prescriptions for eyeglasses. The optician is an
artisan qualified to grind lenses, fill prescriptions, and fit
frames.

															The effect of § 2 is to forbid the optician from fitting or
duplicating lenses without a prescription from an ophthalmologist
or optometrist. In practical effect, it means that no optician can
fit old glasses into new frames or supply a lens, whether it be a
new lens or one to duplicate a lost or broken lens, without a
prescription. The District Court conceded that it was in the
competence of the police power of a State to regulate the
examination of the eyes. But it rebelled at the notion that a State
could require a prescription from an optometrist or ophthalmologist
"to take old lenses and place them in new frames and then fit the
completed spectacles to the face of the eyeglass wearer." 120
F.Supp. at page 135. It held that such a requirement was not
"reasonably and rationally related to the health and welfare of the
people." Id. at 136. The court found that, through
mechanical devices and ordinary skills, the optician could take a
broken lens or a fragment thereof, measure its power, and reduce it
to prescriptive terms. The court held that,

															"Although, on this precise issue of duplication, the legislature
in the instant regulation was dealing with a matter of public
interest, the particular means chosen are neither reasonably
necessary nor reasonably related to the end sought to be
achieved." Id. at 137. It was, accordingly, the opinion of the
court that this provision of the law violated the Due Process
Clause by arbitrarily interfering with the optician's right to do
business.

															We think the due process question is answered in principle by Roschen v. Ward, 279 U. S. 337 ,
which upheld a Page 348 U. S. 487 New York statute making it unlawful to sell eyeglasses at retail
in any store unless a duly licensed physician or optometrist were
in charge and in personal attendance. The Court said,

															". . . wherever the requirements of the act stop, there can be
no doubt that the presence and superintendence of the specialist
tend to diminish an evil." Id., at 279 U. S.
339 .

															The Oklahoma law may exact a needless, wasteful requirement in
many cases. But it is for the legislature, not the courts, to
balance the advantages and disadvantages of the new requirement. It
appears that, in many cases, the optician can easily supply the new
frames or new lenses without reference to the old written
prescription. It also appears that many written prescriptions
contain no directive data in regard to fitting spectacles to the
face. But in some cases the directions contained in the
prescription are essential if the glasses are to be fitted so as to
correct the particular defects of vision or alleviate the eye
condition. The legislature might have concluded that the frequency
of occasions when a prescription is necessary was sufficient to
justify this regulation of the fitting of eyeglasses. Likewise,
when it is necessary to duplicate a lens, a written prescription
may or may not be necessary. But the legislature might have
concluded that one was needed often enough to require one in every
case. Or the legislature may have concluded that eye examinations
were so critical, not only for correction of vision but also for
detection of latent ailments or diseases, that every change in
frames and every duplication of a lens should be accompanied by a
prescription from a medical expert. To be sure, the present law
does not require a new examination of the eyes every time the
frames are changed or the lenses duplicated. For if the old
prescription is on file with the optician, he can go ahead and make
the new fitting or duplicate the lenses. But the law need not be in
every respect logically consistent with its aims Page 348 U. S. 488 to be constitutional. It is enough that there is an evil at hand
for correction, and that it might be thought that the particular
legislative measure was a rational way to correct it.

															The day is gone when this Court uses the Due Process Clause of
the Fourteenth Amendment to strike down state laws, regulatory of
business and industrial conditions because they may be unwise,
improvident, or out of harmony with a particular school of thought. See Nebbia v. People of State of New York, 291 U.
S. 502 ; West Coast Hotel Co. v. Parrish, 300 U. S. 379 ; Olsen v. State of Nebraska ex rel. Western Reference & Bond
Ass'n, 313 U. S. 236 ; Lincoln Union v. Northwestern Iron & Metal Co., 335 U. S. 525 ; Daniel v. Family Sec. Life Ins. Co., 336 U.
S. 220 ; Day-Brite Lighting, Inc., v. State of
Missouri, 342 U. S. 421 . We
emphasize again what Chief Justice Waite said in Munn v. State
of Illinois, 94 U. S. 113 , "For
protection against abuses by legislatures, the people must resort
to the polls, not to the courts."

															Secondly, the District Court held that it violated the Equal
Protection Clause of the Fourteenth Amendment to subject opticians
to this regulatory system and to exempt, as § 3 of the Act
[ Footnote 2 ] does, all sellers
of ready-to-wear glasses. Page 348 U. S. 489 The problem of legislative classification is a perennial one,
admitting of no doctrinaire definition. Evils in the same field may
be of different dimensions and proportions, requiring different
remedies. Or so the legislature may think. Tigner v. State of
Texas, 310 U. S. 141 . Or
the reform may take one step at a time, addressing itself to the
phase of the problem which seems most acute to the legislative
mind. Semler v. Oregon State Board of Dental Examiners, 294 U. S. 608 . The
legislature may select one phase of one field and apply a remedy
there, neglecting the others. A.F. of L. v. American Sash
Co., 335 U. S. 538 . The
prohibition of the Equal Protection Clause goes no further than the
invidious discrimination. We cannot say that that point has been
reached here. For all this record shows, the ready-to-wear branch
of this business may not loom large in Oklahoma or may present
problems of regulation distinct from the other branch.

															Third, the District Court held unconstitutional, as violative of
the Due Process Clause of the Fourteenth Amendment, that portion of
§ 3 which makes it unlawful "to solicit the sale of . . . frames,
mountings . . . or any other optical appliances." [ Footnote 3 ] The court conceded that state
regulation of advertising relating to eye examinations was a matter
"rationally related to the public health and welfare," 120 F. Supp.
at 140, and therefore subject to regulation within the principles
of Semler v. Oregon State Board of Dental Examiners,
supra. But regulation of the advertising of eyeglass frames
was said to intrude "into a mercantile field only casually related
to the visual care of the public" Page 348 U. S. 490 and restrict "an activity which in no way can detrimentally
affect the people." 120 F. Supp. at 140-141. [ Footnote 4 ]

															An eyeglass frame, considered in isolation, is only a piece of
merchandise. But an eyeglass frame is not used in isolation, as
Judge Murrah said in dissent below; it is used with lenses; and
lenses, pertaining as they do to the human eye, enter the field of
health. Therefore, the legislature might conclude that to regulate
one effectively it would have to regulate the other. Or it might
conclude that both the sellers of frames and the sellers of lenses
were in a business where advertising should be limited, or even
abolished, in the public interest. Semler v. Oregon State Board
of Dental Examiners, supra. The advertiser of frames may be
using his ads to bring in customers who will buy lenses. If the
advertisement of lenses is to be abolished or controlled, the
advertising of frames must come under the same restraints -- or so
the legislature might think. We see no constitutional reason why a
State may not treat all who deal with the human eye as members of a
profession was should use no merchandising methods for obtaining
customers.

															Fourth, the District Court held unconstitutional, as violative
of the Due Process Clause of the Fourteenth Amendment, the
provision of § 4 of the Oklahoma Act which reads as follows:

															"No person, firm, or corporation engaged in the business of
retailing merchandise to the general public Page 348 U. S. 491 shall rent space, sublease departments, or otherwise permit any
person purporting to do eye examination or visual care to occupy
space in such retail store."

															It seems to us that this regulation is on the same
constitutional footing as the denial to corporations of the right
to practice dentistry. Semler v. Oregon State Board of Dental
Examiners, supra, at 294 U. S. 611 .
It is an attempt to free the profession to as great an extent as
possible from all taints of commercialism. It certainly might be
easy for an optometrist with space in a retail store to be merely a
front for the retail establishment. In any case, the opportunity
for that nexus may be too great for safety if the eye doctor is
allowed inside the retail store. Moreover, it may be deemed
important to effective regulation that the eye doctor be restricted
to geographical locations that reduce the temptations of
commercialism. Geographical location may be an important
consideration in a legislative program which aims to raise the
treatment of the human eye to a strictly professional level. We
cannot say that the regulation has no rational relation to that
objective and therefore is beyond constitutional bounds.

															What we have said is sufficient to dispose of the appeal in No.
185 from the conclusion of the District Court that that portion of
§ 3 which makes it unlawful to solicit the sale of spectacles,
eyeglasses, lenses, and prisms by the use of advertising media is
constitutional.

															The other contentions urged by appellants in No. 185 are without
merit. Affirmed in part and reversed in part. MR. JUSTICE HARLAN took no part in the consideration or decision
of this case.

															[ Footnote 1 ]

															Section 2 reads as follows:

															"It shall be unlawful for any person, firm, corporation,
company, or partnership not licensed under the provisions of
Chapter 11 or Chapter 13 of Title 59, Oklahoma Statutes 1951, to
fit, adjust, adapt, or to in any manner apply lenses, frames,
prisms, or any other optical appliances to the face of a person, or
to duplicate or attempt to duplicate, or to place or replace into
the frames, any lenses or other optical appliances which have been
prescribed, fitted, or adjusted for visual correction, or which are
intended to aid human vision or to give any treatment or training
designed to aid human vision, or to represent or hold himself out
to the public as being qualified to do any of the acts listed in
this Section, except that persons licensed under the provisions of
Chapters 11 or 13 of Title 59, Oklahoma Statutes 1951 may in a
written prescription, or its duplicate, authorize any optical
supplier to interpret such prescription, and who in accordance
therewith may measure, adapt, fit, prepare, dispense, or adjust
such lenses, spectacles, eye glasses, prisms, tinted lenses, frames
or appurtenances thereto, to the human face for the aid or
correction of visual or ocular anomalies of the human eye; and may
continue to do the said acts on the aforesaid written prescription,
or its duplicate, provided however, that the physician or
optometrist writing such prescription shall remain responsible for
the full effect of the appliances so furnished by such other
person. Provided that this Section shall not prevent a qualified
person from making repairs to eye glasses."

															Chapter 11, Title 59, Okl.Stat. 1951, provides for the licensing
of ophthalmologists and other doctors. Chapter 13 provides for the
certification of optometrists.

															[ Footnote 2 ]

															Section 3 reads as follows:

															"It shall be unlawful for any person, firm, company, corporation
or partnership to solicit the sale of spectacles, eye glasses,
lenses, frames, mountings, prisms or any other optical appliances
or devices, eye examinations or visual services, by radio, window
display, television, telephone directory display advertisement, or
by any other means of advertisement; or to use any other method or
means of baiting, persuading, or enticing the public into buying
spectacles, eye glasses, lenses, frames, mountings, prisms, or
other optical appliances for visual correction. Provided, however,
that the provisions of this Act shall not render any newspaper or
other advertising media liable for publishing any advertising
furnished them by a vendor of said commodity or material; nor shall
anything in this Act prevent ethical education publicity or
advertising by legally qualified health groups that does not
violate presently existing laws of Oklahoma, nor prevent the proper
use of ethical, professional notices. Nothing in this Act shall
prohibit the sale of ready-to-wear glasses equipped with
convex-spherical lenses, nor sunglasses equipped with plano lenses,
nor industrial glasses and goggles with plano lenses used for
industrial eye protection when sold as merchandise at any
established places of business and where the selection of the
glasses is at the discretion of the purchaser."

															[ Footnote 3 ] See note 2 supra. [ Footnote 4 ]

															The court also said:

															"Advertising directed exclusively at this feature of eye wear
can have no deleterious effect on the public, inasmuch as it has no
influence on the prospective wearer of eyeglasses, and to the
present wearer (a person already examined by a licensed
professional) is but a mere piece of merchandise."

															"The dispensing optician, a merchant in this particular, cannot
arbitrarily be divested of a substantial portion of his business
upon the pretext that such a deprivation is rationally related to
the public health."

															120 F. Supp. at 142.

Summary: The Supreme Court upheld an Oklahoma statute that regulated the practice of optometry and restricted the activities of opticians. The Court found that the statute did not violate the Due Process or Equal Protection Clauses of the Fourteenth Amendment. The Court also upheld provisions prohibiting the solicitation of sales of optical appliances and restricting advertising by opticians. The Court concluded that the state had a rational basis for enacting the legislation to protect the public's health and safety.