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REHNQUIST, J., concurring in result

Prior cases dealing with First Amendment rights are not fungible goods, and I think the doctrine of these cases suggests two important distinctions. The government as employer or school administrator may impose upon employees and students reasonable regulations that would be impermissible if imposed by the government upon all citizens. And there can be a constitutional distinction between the infliction of criminal punishment, on the one hand, and the imposition of milder administrative or disciplinary sanctions, on the other, even though the same First Amendment interest is implicated by each.

Because some of the language used by the Court tends to obscure these distinctions, which I believe to be important, I concur only in the result.

REHNQUIST, J., concurring in result

408 U.S.

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v. Des Moines Independent School District, 393 U. S. 503, 506 (1969), to the effect that First Amendment rights must always be applied “in light of the special characteristics of the environment,” and from Esteban v. Central Missouri State College, 415 F. 2d 1077, 1089 (CA8 1969), to the effect that a college “may expect that its students adhere to generally accepted standards of conduct," emphasize this fact.

Cases such as United Public Workers v. Mitchell, 330 U. S. 75 (1947), and Pickering v. Board of Education, 391 U. S. 563 (1968), make it equally clear that the government in its capacity as employer also differs constitutionally from the government in its capacity as the sovereign executing criminal laws. The Court in Pickering said:

“The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs

through its employees.” 391 U. S., at 568. Because of these acknowledged distinctions of constitutional dimension based upon the role of the government, I have serious doubt as to whether cases dealing with the imposition of criminal sanctions, such as Brandenburg v. Ohio, 395 U. S. 444 (1969), Scales v. United States, 367 U. S. 203 (1961), and Yates v. United States, 354 U. S. 298 (1957), are properly applicable to this case dealing with the government as college administrator. I also doubt whether cases dealing with the prior restraint imposed by injunctive process of a court, such as Near v. Minnesota, 283 U. S. 697 (1931), are precisely comparable to this case, in which a typical sanction imposed was the requirement that the group abandon its plan to meet in the college coffee shop.

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REHNQUIST, J., concurring in result

does equality mean, and whatever it meant or means, can we still achieve a version of it consistent with this adventure? Are reason and democracy really consistent? Is war in behalf of peace, given what we know now, realistic? Can Negroes who were once property suddenly become people? Are some genocides more decent than others, some cesspools more fragrant than others?

"In any event, I know that Bedford-Stuyvesant is crammed full of red-white-and-blue Americans. They really believe that we ought to practice what we preach, and that's the problem. We've oversold America to ourselves, and so many of my very good friends-looking at the street violence and the circuses in the courts and on the campuses—who believe we confront a deeply un-American phenomenon, who think we face a serious threat to American values, completely misread what is going on there. We face a vibrant, far-reaching reassertion of what this country claims, what it has always claimed it is.” W. Birenbaum, Something For Everybody Is Not Enough 67–69, 248–249.

MR. JUSTICE REHNQUIST, concurring in the result.

While I do not subscribe to some of the language in the Court's opinion, I concur in the result that it reaches. As I understand the Court's holding, the case is sent back for reconsideration because respondents may not have made it sufficiently clear to petitioners that the decision as to recognition would be critically influenced by petitioners' willingness to agree in advance to abide by reasonable regulations promulgated by the college.

I find the implication clear from the Court's opinion that the constitutional limitations on the government's acting as administrator of a college differ from the limitations on the government's acting as sovereign to enforce its criminal laws. The Court's quotations from Tinker

Appendix to opinion of DOUGLAS, J.

408 U.S.

these questions suggest, academic tradition responds through an uptight delineation of jurisdictions and powers within the university.

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“Today's campus disruptions were born in the years 1776 to 1787. Although the mind of Thomas Jefferson was anchored in the traditions of Heidelberg, Oxford, Paris, Bologna, Rome, Greece, the religions of the early Christians and the ancient Hebrews, minds like his transformed the old into something quite new, as in the case of his proposal for a university in Virginia. What was created then was not, of course, the latest thing, nor was it necessarily the Truth. But it was an adventure, a genuine new departure, unlike most of the institutions of learning we have created in this country since the Morrill Act—that is, most of our higher-education establishment.

“The traditions of the university in the West are anti- if not counter-revolutionary. Operating within these traditions, the university has produced revolutionary knowledge, but institutionally the uses of the knowledge have been directed mainly toward the confirmation of the status quo, particularly the political and cultural status quo. The themes of peace, integration, equality, freedom and the humane uses of knowledge are ones which traditionally fall beyond the purview of the university.

“But in principle the main themes of our society run counter to this deployment of knowledge. In spite of Vietnam, poverty, racism and the overbearing logic of our technology--in spite of Bedford-Stuyvesant—the main themes of our country, in principle, were and still are revolutionary. They are reflected in such questions as these: Can the revolutionary knowledge developed in the universities be used humanely, to conform with what Jefferson and his colleagues apparently meant? What

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Appendix to opinion of DOUGLAS, J.

being free. Obviously, the contemporary American student activist is crazy.

“We have probably made a mistake by revealing to our students that there really is too much to know, and only one way to learn it-our way. They have come to accept this as gospel, and it has encouraged them to view curriculum development as essentially a sophisticated art of selection, interpretation and emphasis in which they have a vested interest. Understanding this, naturally they have begun to ask the key political questions bearing upon our vested interests and privileges: What experience and talent should be empowered to select? Who should be empowered to employ those who will interpret, and to deploy the wealth required to support the enterprise?

"Obviously the control over who will be kept out and over punishment-and-reward systems inside is extremely important. While our students still generally concede that the older adults who teach them may know something they don't, they are also asserting the uniqueness of their own experience, claiming that they may know something which those now in charge don't. They have returned to the kindergarten level to rediscover a principle long revered in American education—that the student plays a positive and active role, that he has something definite and essential to contribute to his own education.

“The young-suspended precariously in a society obsessed by Vietnam violence, race violence, crime violence and culture violence-are restating the eternal questions about education: What is important to learn, and how may people best learn together? Regarding these enduring questions, they are also asking the eternal question of a society which officially encourages its young to grow up free (even while keeping them in bondage), namely: Who shall judge? Regarding the problems

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