The complaint averred that on Friday morning preceding
the game plaintiff Williams and thirteen other Black football players
entered the coaching offices at the University in civilian clothes
wearing armbands; that Williams asked the Coach to discuss the matter of
the BYU protest with the fourteen players; that during a subsequent
discussion with them the Coach advised the Black athletes that they were
dismissed from the football squad for wearing black armbands.
The complaint alleged that such action was a
deprivation of plaintiffs' right to peaceably demonstrate under the
Constitution of the United States; that they were suspended from the
football team without cause and for the sole reason that they wore
armbands in peaceable and symbolic demonstration; that the dismissal was
without a proper hearing or notice of any charges and without an
opportunity being afforded for the plaintiffs to present evidence in
their behalf; and that the action was in violation of their rights under
the First, Ninth and Fourteenth Amendments of the Federal Constitution
and various provisions of the Wyoming Constitution. It was further
alleged that the suspension and dismissal of the plaintiffs had the
effect of and was intended to penalize them for exercising such rights,
and to compel conformance to undefined concepts of personal behavior set
by the Coach, the Athletic Director, the University President and the
Trustees. The complaint charged further the policy of the Coach and the
subsequent ratification of his action by the Trustees amounted to an
administrative requirement that was vague and over-broad with a chilling
effect on the exercise of First and Ninth Amendment rights. The
complaint prayed for convening of a three-judge court, a restraining
order and preliminary and permanent injunctions, a declaratory judgment
that the dismissal of the athletes by the University was
unconstitutional, for damages in the amount of $75,000 for each
plaintiff and punitive damages.
By their answer defendants admitted the jurisdiction
invoked but denied any violation of plaintiffs' constitutional rights.
Among other things they alleged that the action of the Trustees
dismissing plaintiffs from the football team was taken after a full and
complete hearing and presentation by each plaintiff and by others for
them; that such action continued in force their athletic scholarships,
subject to later review; that plaintiffs had stated they would not
rejoin the team unless permitted to wear the armbands during the game
with BYU, and that they would not rejoin if defendant Eaton remained a
Coach; that plaintiffs' demands were in violation of their written
scholarship agreements, entered with knowledge of the football coaching
rule against their participation in protests and demonstrations; and
that plaintiffs' dismissal by the Coach had not been solely based or
predicated on the fact that plaintiffs were wearing black armbands when
they first met with the Coach on the matter.
The answer further claimed that if the defendants had
acceded to the demands of the plaintiffs, they would have acted as State
officers and agents contrary to the First Amendment prohibition against
State establishment of any religion and its guarantee for free exercise
of religion, and like provisions of the Wyoming Constitution. Also the
answer averred that the complaint failed to allege facts constituting a
cause of action on which damages could be awarded for the reason that
the defendants are all 'immune from such suit.' Further the verified
answer denied that plaintiffs sustained any damage and denied the
allegation of the verified complaint that the amount in controversy
exceeds $10,000, exclusive of interest and costs. By counterclaim
defendants prayed for injunctive relief against further false or
inflammatory statements by plaintiffs' claims that the defendants had
denied plaintiffs' constitutional rights and had practiced racial
discrimination against them.
The District Court held an evidentiary hearing on the
application for a temporary restraining order. On conclusion of the
hearing the Court denied the application for the restraining order and
for a three-judge court. Then after answering the defendants filed a
'Motion to Dismiss and/or for Summary Judgment.' The Court granted
leave for the filing of supporting and opposing affidavits. After the
affidavits were filed and on consideration of them and the transcript of
hearing on the restraining order the Court entered its 'Order Granting
Motion To Dismiss (With Findings).' 310 F.Supp. 1342.
The Order of Dismissal stated that it was granted for
two reasons (1) that the complaint failed to state a claim on which
relief can be granted, there being immunity of the State and the
individual defendants from suit under the Eleventh Amendment and Wyoming
law; and (2) that the complaint should be dismissed for lack of
jurisdiction for the reason that the claim for damages is insubstantial
and totally speculative, which reason was supported by detailed findings
of fact made from the testimony and affidavits. The counterclaim of
defendants was also dismissed and no cross-appeal from that part of the
order was taken.
In its findings in support of the second ground for
dismissal of the plaintiffs' claims, the Court said that 'based upon the
test of credibility, the operative facts, from the whole of this record
* * *' /3/ that these facts were found; that the plaintiffs had never
previously protested against the rule of the Coach that University
athletes not participate in demonstrations or protests; that the Black
athletes had been wearing armbands at the meeting with the Coach when
they were dismissed from the football team; that the armbands were worn
in specific protest against specific beliefs of the Mormon church and
BYU, with intent on the part of the plaintiffs to demonstrate during the
scheduled game; and that they were notified by the Coach that they were
dismissed from the team for undertaking such demonstration-protest; and
that the plaintiffs stated during an emergency meeting of the Trustees
that they would not return to the football team unless they were
permitted to wear the armbands or so long as the defendant Eaton
remained as football coach at the University. The Court found that had
defendants acceded to the demands of the plaintiffs, such action would
have been violative of the First Amendment principles requiring
neutrality in religious matters and similar provisions in the Wyoming
Constitution, and that the plaintiffs' damage claims were therefore
insubstantial. We note here that opposing testimony and affidavits for
the plaintiffs conflicted with proof of the defendants in several
particulars and that the plaintiffs denied that they had insisted on
wearing the armbands during the game.
The plaintiffs brought this appeal and we view it as involving these principal questions:
(1) Whether the Eleventh Amendment or Wyoming law
afford immunity to the defendants from the civil rights claims seeking
injunctive and declaratory relief and damages for allegedly
unconstitutional acts;
(2) whether the complaint stated any claim for relief
under the First Amendment and Federal constitutional decisions on
freedom of expression;
(3) whether the order was proper ad a dismissal for failure to state a claim for relief or as a summary judgment; and
(4) whether the First Amendment establishment and free
exercise clauses and similar Wyoming provisions required and justified
defendants' actions.
The Eleventh Amendment and The Wyoming Constitution
We turn first to the holding of the District Court
that this action was barred by the immunity from suit conferred by the
Eleventh Amendment and the Wyoming Constitution. See 310 F.Supp. at
1349-1350. The principal provisions are set out in the margin.4
The Wyoming constitutional provision referred to states that 'suits
may be brought against the state in such manner and in such courts as
the legislature may by law direct.' Art. 1, 8, Wyo. Constitution. And
the State statutes declare that any action permitted by law against the
University Trustees and several other named agencies 'is hereby
declared to be an action against the State of Wyoming and hereafter no
action shall be brought against any of such boards, commissions or
trustees except in the courts of the State of Wyoming and no action
shall be maintained against any of such boards, commissions or trustees
in any other jurisdiction.' 1-1018, Wyo. Statutes of 1957.5
Thus, by law immunity of the Trustees from suit is
waived only as to such actions 'in the courts of the State of Wyoming.'
We do not feel the immunity was waived as to the suits in the Federal
Courts. Such waiver provisions are strictly construed. Harrison v.
Wyoming Liquor Commission, 63 Wyo. 13, 177 P.2d 397, 399; Hamilton
Manufacturing Co. v. Trustees of State Colleges in Colorado, 356 F.2d 599
(10th Cir.). Where there is no clear intent in such a waiver of
immunity statute to subject the state agencies to actions in the Federal
Courts such suits may not be maintained. Kennecott Copper Corp. v.
State Tax Commission, 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862; Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 467, 65 S.Ct. 347, 89 L.Ed. 389; Great Northern Insurance Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121; Murray v. Wilson Distilling Co., 213 U.S. 151, 29 S.Ct. 458, 53 L.Ed. 742.
In facing this issue appellants' first contend that
the immunity conferred by the constitutional provisions has been waived
by defendants in this suit. The argument is that the answer admitted
the jurisdiction invoked and that the defendants also sought affirmative
relief by the prayer for an injunction so that the immunities were
waived. At this point we note that the answer alleged that the
defendants were immune from suit.
This waiver question turns on Wyoming law as to
whether an authorization for such waiver was given by State law. Ford
Motor Co. v. Department of Treasury of Indiana, supra, 323 U.S. at 467,
65 S.Ct. 347. The Wyoming Constitution seems clear in its provision
that amenability to suit is granted 'in such manner and in such courts
as the legislature may by law direct.' Despite the inequities that the
immunity may produce, it '* * * is so well established in this state
that any change must be effected by the legislature rather than by the
courts.' Denver Buick, Inc. v. Pearson, 465 P.2d 512, 514 (Wyo.);
Bondurant v. Board of Trustees of Memorial Hospital, 354 P.2d 219
(Wyo.). Such waiver must be by an express legislative provision.
Hjorth Royalty Co. v. Trustees of University, 30 Wyo. 309, 222 P. 9, 11.
There is no Wyoming statute waiving the immunity from
this type of suit in the Federal Court. The plaintiffs point to the
general provision in 9-132, Wyo. Statutes of 1957, authorizing the
Attorney General to go into State or Federal Court to prosecute or
defend suits on behalf of the State whenever its interests would be best
served by so doing. However, we are not persuaded that this statute
constitutes the required waiver or authorizes waiver by the Attorney
General in view of the State constitutional requirement for waiver by
statute and the strict construction of statutes dealing with such
waivers. Harrison v. Wyoming Liquor Commission, supra; Hamilton
Manufacturing Co. v. Trustees of State Colleges in Colorado, supra. We
feel that the Attorney General was not authorized to waive the immunity
conferred by the Eleventh Amendment, if such waiver was made by the
pleading. See Utah Construction Co. v. State Highway Commission, 45
Wyo. 403, 19 P.2d 951, 955 and Ford Motor Co. v. Department of Treasury
of Indiana, supra, 323 U.S. at 468, 65 S.Ct. 347. Therefore, we must
consider the impact of the constitutional provisions on immunity from
suit.
Insofar as the claims for injunctive and declaratory
relief are concerned, the principles are well established. 'It is the
settled doctrine of this court that a suit against individuals for the
purpose of preventing them as officers of a state from enforcing an
unconstitutional enactment to the injury of the rights of the plaintiff,
is not a suit against the state within the meaning of that amendment.'
Smyth v. Ames, 169 U.S. 466, 518, 18 S.Ct. 418, 422, 42 L.Ed. 819; see also Ex parte Young, 209 U.S. 123,
155-156, 28 S.Ct. 441, 52 L.Ed. 714; Larson v. Domestic & Foreign
Corporation, 337 U.S 682, 690, 69 S.Ct. 1457, 93 L.Ed. 1628; McCoy v.
Louisiana State Board of Education, 332 F.2d 915 (5th Cir.); and School
Board of City of Charlottesville, Va. v. Allen, 240 F.2d 59, 62-63 (4th
Cir.). And if the plaintiffs establish a violation of Federal
constitutional rights and entitlement to relief under the Federal civil
rights acts, the Wyoming Constitution may not immunize the defendants
and override the Federal constitutional principles in view of the
Supremacy Clause. Therefore, if a violation of Federal constitutional
rights is established by plaintiffs, the immunity under the Eleventh
Amendment and the Wyoming Constitution would not bar injunctive or
declaratory relief against the defendants other than the State of
Wyoming. McCoy v. Louisiana State Board of Education, supra, and Dorsey
v. State Athletic Commission, 168 F.Supp. 149 (E.D.La.), aff'd 359 U.S.
533, 79 S.Ct. 1137, 3 L.Ed.2d 1028. And the Federal Court would have
jurisdiction to grant such relief, even though the claim for money
damages is barred by the immunity, as we discuss below. See Hopkins v.
Clemson Agricultural College, 221 U.S. 636, 649, 31 S.Ct. 654, 55 L.Ed. 890.
With respect to the State of Wyoming, we are satisfied
that the dismissal was proper. In view of the principles of the
Eleventh Amendment relief could not be granted against the State itself,
and the State is not a person within the meaning of the civil rights
statute. 42 U.S.C. 1983; Whitner v. Davis, 410 F.2d 24, 29 (9th Cir.).
The claims for money damages present a more difficult
problem. In some circumstances State officers may be sued for money
damages as individuals under the civil rights statutes. See Whitner v.
Davis, supra at 30. And since suits for injunctive relief against
unconstitutional acts by State officers are not viewed as unconsented
suits against the State under the authorities cited above, some courts
have held that a claim against them for money damages may also be
maintained on the ground that the immunity does not shield
unconstitutional action. See, e.g., Sostre v. Rockefeller, 312 F.Supp.
863, 879 (S.D.N.Y.), and cases there cited.
However, we feel that the basis for allowing equitable
suits against unconstitutional action is that they merely enjoin such
acts, and we believe the result is different where the relief sought
would 'expend itself on the public treasury or domain, or interfere with
the public administration. Ex parte New York, 256 U.S. 490, 500, 502, 41 S.Ct. 588, 590, 591, 65 L.Ed. 1057.' Land v. Dollar, 330 U.S. 731,
738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209. When the action in essence is
for recovery of money from the State the immunity is available even
though individual officials are nominal defendants. See Ford Motor Co.
v. Department of Treasury of Indiana, supra, 323 U.S. at 464, 65 S.Ct.
347; Hamilton Manufacturing Co. v. Trustees of State Colleges in
Colorado, supra; and Westberry v. Fisher, 309 F.Supp. 12, 18-20 (D.Me.);
contra, Sostre v. Rockefeller, supra.
The complaint before the District Court named
defendants Eaton (the Coach), Jacoby (the Athletic Director), and the
several Trustees and President of the University by name and with
express description of their positions. Brief allegations were made
also about their official functions. Each paragraph describing these
several defendants concluded with the statement that he or they were
sued in their official capacity. The District Court concluded that the
complaint does not contain any allegation that the defendants were
personally liable. 310 F.Supp. at 1350. We agree, finding no averment
in the complaint that may reasonably be interpreted as asserting a claim
for money damages against these defendants in their individual
capacities. Since the money claim alleged was directed solely against
them in their official capacities, and since there was no waiver of
immunity of such State officers or agents from suit, we conclude that
the dismissal as to the claims for money damages against them was
proper.
The First Amendment and Federal Constitutional Decisions on Freedom of Expression
The starting point for weighing the constitutional
claim of the plaintiffs is Tinker v. Des Moines Independent School
District, et al., 393 U.S. 503,
89 S.Ct. 733, 21 L.Ed.2d 731. At least with respect to the allegations
of the complaint before us, the Tinker case bears obvious similarities
in that the claimed right was there asserted for the wearing of black
armbands to protest the Government's policy in Vietnam. The plaintiffs
were suspended for wearing armbands. Nominal damages and an injunction
were sought against enforcement of a regulation that students would be
requested to remove protest armbands and that they would be suspended
until their removal.
After an evidentiary hearing the District Court
dismissed the complaint on the ground that the action of the school
authorities was reasonable in order to prevent disturbance of school
discipline. The Eighth Circuit affirmed without opinion, being equally
divided. The Supreme Court reversed, holding that First Amendment
rights of expression were violated and that there was no showing or
finding that the conduct in question would materially interfere with
school discipline. Because of its controlling significance in this
case, we refer to the following reasoning of the Supreme Court:
'First Amendment rights, applied in light of the
special characteristics of the school environment, are avilable to
teachers and students. It can hardly be argued that either students or
teachers shed their constitutional rights to freedom of speech or
expression at the school-house gate.' (393 U.S. at 506, 89 S.Ct. 736)
'In order for the State in the person of school
officials to justify prohibition of a particular expression of opinion,
it must be able to show that its action was caused by something more
than a mere desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint. Certainly where there is no
finding and no showing that engaging in the forbidden conduct would
'materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school,' the prohibition
cannot be sustained. Burnside v. Byars, supra, (363 F.2d) at 749.'
(393 U.S. at 509, 89 S.Ct. at 738)
'* * * A student's rights, therefore, do not embrace
merely the classroom hours. When he is in the cafeteria, or on the
playing field, or on the campus during the authorized hours, he may
express his opinions, even on controversial subjects like the conflict
in Vietnam, if he does so without 'materially and substantially
interfer(ing) with the requirements of appropriate discipline in the
operation of the school' and without colliding with the rights of
others. Burnside v. Byars, supra, (363 F.2d) at 749. But conduct by
the student, in class or out of it, which for any reason-- whether it
stems from time, place, or type of behavior-- materially disrupts
classwork or involves substantial disorder or invasion of the rights of
others is, of course, not immunized by the constitutional guarantee of
freedom of speech. Cf. Blackwell v. Issaquena County Board of
Education, 363 F.2d 749 (C.A.5th Cir. 1966).' (393 U.S. at 512-513, 89 S.Ct. at 740)
See also Burnside v. Byars, 363 F.2d 744 (5th Cir.); Saunders v. Virginia Polytechnic Institute, 417 F.2d 1127
(4th Cir.); Aguirre v. Tahoka Independent School District, 311 F.Supp.
664 (N.D.Tex.); and Frain v. Baron, 307 F.Supp. 27 (E.D.N.Y.).
Plaintiffs' averments have been outlined in detail.
Their allegations and affidavits in essence said that they were
dismissed from the football team by the Coach during their meeting with
him; that he stated that they were dismissed from the squad for wearing
black armbands; and plaintiffs averred that their dismissal from the
team was without cause and for the sole reason that they wore armbands
in peaceable and symbolic demonstration. Defendants' answer made
general denial covering such allegations.
There was no showing before the District Court of the
plaintiffs' conduct producing or that it likely would produce any
disturbance interfering with school discipline or the interests which
the authorities are entitled to protect, under the principles of the
Tinker case. Whether such circumstances may have existed was a matter that was not
established conclusively so that a summary judgment could be entered
against the plaintiffs. And whether at trial circumstances may be established justifying the
defendants' actions under the standards of Tinker and similar cases, we
cannot say. Nevertheless, for reasons discussed more fully below,
dismissal for insufficiency of the allegations or by way of summary
judgment was inappropriate. In the light of the principles of the
Tinker case and similar authorities, we cannot say that the complaint
fails to state a claim on which relief could be granted or that summary
judgment was proper.
We have considered our opinion in Jones v. Hopper, 410 F.2d 1323,
cert. denied, 397 U.S. 991, 90 S.Ct. 1111, 25 L.Ed.2d 399, involving a
civil rights claim where infringement of First Amendment rights was
alleged by refusal to reappoint a professor, assertedly because of
speeches and writings offensive to the Trustees. Jones v. Hopper held
the complaint insufficient in view of the statutory authority of the
Trustees to appoint, remove, discharge and suspend professors, and in
view of the lack of any contractual arrangement for renewal of the
professor's employment. Here, however, plaintiffs alleged irreparable
harm from their dismissal from the team in that their ability to promote
their careers, practice and perform their skills has been denied them,
and that the dismissal caused them to lose their chance to be observed
by scouts as potential professional football players during the 1969
football season, and has caused them emotional and mental stress and
anxiety. The answer alleged the existence of written athletic
scholarship agreements, stating, however, that they had been continued
in force subject to further review. Nevertheless, we view the interests
and injuries averred by these plaintiffs as distinguishing the case
from Jones v. Hopper.
Propriety of the Order of Dismissal
As indicated above, the District Court order stated
that the complaint was dismissed for failure to state a claim on which
relief could be granted. 310 F.Supp. at 1349-1350. However, 'in
appraising the sufficiency of the complaint we follow, of course, the
accepted rule that a complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to
relief.' Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80; Parkinson v. California Co., 233 F.2d 432
(10th Cir.); and see Jones v. Hopper, supra, 410 F.2d at 1327. The
allegations must be taken as true and all reasonable inferences from
them must be indulged in favor of the complaint. See Olpin v. Ideal
National Insurance Co., 419 F.2d 1250
(10th Cir.), cert. denied, 397 U.S. 1074, 90 S.Ct. 1522, 25 L.Ed.2d
809; and Virgin Islands Corporation v. W. A. Taylor & Co., 202 F.2d 61
(2d Cir.). And viewing the allegations of the complaint under the
principles of the Tinker case and similar authorities, we feel that
dismissal for failure to state a claim may not be sustained.
However, the order of the District Court and the
record persuade us that the Court followed the procedure mentioned in
Rule 12(b), F.R.Civ.P., and treated the motion as one for summary
judgment. The Court afforded the parties opportunity to submit
affidavits, and gave detailed consideration to the pleadings, the
transcript of the temporary restraining order hearing, and the
affidavits. Since matters outside the pleading were presented and not
excluded by the Court but considered by it, the motion was treated as
one for summary judgment. Rule 12(b); Ryan v. Scoggin, 245 F.2d 54 (10th Cir.); Whitner v. Davis, supra.
Viewing the order as granting summary judgment, we
believe it may not be sustained as to the claims against the State
officers for equitable and declaratory relief. There were disputed
issues of substantial importance that remained. The plaintiffs alleged
and stated by affidavit that they were discharged for wearing the
armbands at the time of the meeting with the Coach. The defendants,
however, alleged and stated by affidavit that the plaintiffs insisted
that they would not rejoin the team unless they were permitted to wear
the armbands during the game; that they would not rejoin if the Coach
remained in his position; and that if defendants had acceded to the
demands relating to the armbands, they would have violated
constitutional principles on neutrality in religious matters-- thereby
raising an issue on causation. Thus a central issue of fact was
unresolved and remained for disposition by trial.
Summary judgment was proper only if no material issue
of fact remained and a formal trial would have been fruitless. Rule 56,
F.R.Civ.P.; Sartor v. Arkansas Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967; Frey v. Frankel, 361 F.2d 437,
442 (10th Cir.). The summary procedure '* * * does not serve as a
substitute for a trial of the case nor require the parties to dispose of
litigation through thr use of affidavits.' Bushman Construction Co. v.
Conner, 307 F.2d 888,
892 (10th Cir.); Frey v. Frankel, supra, 361 F.2d at 442. We cannot
agree that the making of findings and the dismissal-- which was in
effect a summary judgment-- was proper.
On appeal the defendants have argued that the findings
of fact in the order were not clearly erroneous but are supported by
substantial evidence and justify an affirmance. However, the findings
were not made after trial and so the provisions of Rule 52(a),
F.R.Civ.P., according respect to such findings, do not apply. 3 Barron
and Holtzoff, Federal Practice and Procedure, 202 (Charles A. Wright,
rev. ed. 1958). Instead, they were made only on consideration of the
pleadings, affidavits and the transcript of the hearing on the
application for a temporary restraining order, which had been earlier
denied. Although there had been an adversary hearing on the temporary
restraining order application, a finding based on the interlocutory
hearing would not serve as the ground for a final judgment. See Sooner
State Dairies, Inc. v. Townley's Dairy Co., 406 F.2d 1328 (10th Cir.).
Religious Beliefs and Restrictions of the Free Exercise and Establishment Clauses
The remaining principal issue concerns the First
Amendment free exercise and establishment clauses which were binding on
defendants as State officers, Cantwell v. Connecticut, 310 U.S. 296,
60 S.Ct. 900, 84 L.Ed. 1213, and like provisions of the Wyoming
Constitution. The defendants claimed that the constitutional provisions
on religion prohibited acceding to the plaintiffs' demands, to avoid
favoring a religious belief or interfering with such beliefs of others.
The District Court upheld the defense of the actions by the State
officers under these constitutional provisions. Its order concluded
that had the defendants acceded to plaintiffs' demands (found to have
included the right to wear the armbands during the game), then
defendants' action would have been violative of the establishment clause
and its requirement of complete neutrality in religious matters. The
order held also that such action would have violated like provisions on
religious toleration and free exercise in the Wyoming Constitution. 310
F.Supp. at 1352-1353.
The Federal Constitution enjoins strict neutrality on State officials in matters of religious belief. Epperson v. Arkansas, 393 U.S. 97, 103-104, 89 S.Ct. 266, 21 L.Ed.2d. 228; Abington School District v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 10 L.Ed.2d 844; Everson v. Board of Education, 330 U.S. 1,
14-15, 67 S.Ct. 504, 91 L.Ed. 711. The Abington opinion says the
constitutional ideal is '* * * absolute equality before the law, of all
religious opinions and sects * * *. The government is neutral, and,
while protecting all, it prefers none, and it disparages none.' 374
U.S. at 215, 83 S.Ct. at 1567. 'It may not be hostile to any religion *
* *' Epperson v. Arkansas, supra, 393 U.S. at 104, 89 S.Ct. at 270. Of
course, these constitutional restrictions applied through the
Fourteenth Amendment govern only State action. The First Amendment
provisions would be implicated only if the State has been significantly
involved by defendants' actions. Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 18 L.Ed.2d 830; Adickes v. S. H. Kress & Co., 398 U.S. 144, 170-171, 90 S.Ct. 1598, 26 L.Ed.2d 142.
We do not feel that the present record supported a
summary disposition on the ground that these First Amendment principles
required or justified the defendants' actions. While we realize the
importance of the principles which the District Court was properly
considering, the facts relating to them were in significant conflict.
After trial ultimate findings may show that the plaintiffs were
dismissed from the team because of their demands to wear the armbands
during the game. And it may be found that permission therefor by the
defendants would have been recognized as a significant involvement of
the State officers in an expression of hostility to the religious
beliefs of others.10
Such findings may justify the defendants' actions on the
constitutional principles of religious neutrality. However, such close
and delicate constitutional questions should be decided when the facts
are fully developed at trial.
Conclusion
Accordingly the order is affirmed with respect to the
dismissal as to the State of Wyoming, and with respect to the dismissal
as to the claims for money damages against the State officers; the order
is vacated with respect to the dismissal of the claims against the
State officers for equitable and declaratory relief; and the cause is
remanded for further proceedings.
