CARTER, J. I dissent.
The issue presented in this case is whether or not the governing body of a school district may arbitrarily refuse the use of a school building under its supervision for a public assembly. I agree with the premise of the majority opinion that the primary function and purpose of school buildings is education and training of students, and that the governing board should not permit the use of the buildings for any purpose which is inimical to that function. A pivotal issue in this case is, therefore, whether there was such a showing made before the board to justify its conclusion that that function would be impaired if petitioner was granted permission to use the building. It must be conceded that the board cannot act arbitrarily or capriciously. But before discussing that question there are certain vital factors to be considered.
First, it is conceded by the majority opinion that there is no issue of the element of subversiveness in this case. The board did not purport to base its denial of permission on that ground. Hence, we must assume that we have an organization which itself is, and the causes it espouses are, wholly lawful in every respect. Second, the state law unequivocally places school buildings in the same category, as far as public assemblies are concerned, as public parks and streets. Section 19431 of the Education Code reads:
“There is a civic center at each and every public school building and grounds within the State where the citizens, parent-teachers’ association, Campfire Girls, Boy Scout troops, farmers’ organizations, clubs and associations formed for recreational, educational, political, economic, artistic, or moral activities of the public school districts may engage in supervised recreational activities, and where they may meet and discuss, from time to time, as they may desire, any subjects and questions which in their judgment appertain to the educational, political, economic, artistic, and moral interests of the citizens of the communities in which they reside. Governing boards of the school districts may authorize the use, by such citizens and organizations of any other properties under their control, for supervised recreational activities.” (Emphasis added.) (See, also, Goodman v. Board of Education, 48 Cal.App.2d 731 [120 P.2d 665].) It is obvious from the [205]statute and the Goodman case that a public policy has been clearly and unequivocally declared by the Legislature. That policy is that school buildings shall be available for public assemblies and for the exercise of those cherished rights, freedom of speech and assembly. Those concomitant rights are guaranteed by the First and Fourteenth Amendments to the Constitution of the United States and the Constitution of California. (Cal. Const., art. I, §§ 9 and 10.) Hence, it must follow that the Legislature of California by its foregoing declaration of policy has provided a place where those constitutional rights may be exercised. For those reasons I have stated that the school building is in the same category as public streets and parks. The Supreme Court of the United States has forcefully declared the right to exercise those rights in the latter places. The use of such places is inseparably interwoven with the rights themselves. In Hague v. Committee for Industrial Organization, 307 U.S. 496, 515 [59 S.Ct. 954, 83 L.Ed. 1423], the court said:
“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. ’ ’ (Emphasis added.) In the instant case the declaration by the Legislature, rather than ancient custom, as in the case of parks and streets, makes school buildings the place for the exercise of the rights involved.
This brings us to the only limitation (pertinent to this case) on the use of the school buildings for the exercise of those rights—the only basis upon which the board may refuse permission, namely, the use must not, in the language of the statute, in anywise “interfere with the use and occupancy of the public schoolhouse and grounds, as is required for the purposes of the public schools of the State.” (Education Code, § 19433.) And “No use shall be inconsistent with the use of [206]the buildings or grounds for school purposes, or interfere with the regular conduct of school work.” (Education Code, § 19402.) It is true the board has discretion in determining whether such interference will occur but it cannot exercise that discretion arbitrarily or-capriciously or upon speculation or for reasons which will substantially impair the declared policy that school buildings may be used for the exercise of free speech and assembly. As said in Goodman v. Board of Education, supra, page 734:
“It appears from the above (referring to the use of schools for public assemblies but making school use paramount) that some discretionary, but not arbitrary, power is reposed in the board. ...” (Italics added.)
In this case there are two factors which, it is asserted, justified the board’s conclusion that there would be an interference with the school functions: (1) The psychological factor, that is, that there is a threat that the place will be picketed and the adult pupils will not attend the evening classes. (2) The disturbance factor; that there is a threat that there will be such noise and commotion that classes cannot be conducted. In this connection it must be remembered that it is undisputed that the room in the building, the use of which petitioner seeks, is available, no school functions being scheduled therein. In regard to both of those elements it should be observed that they are nothing more than speculation and conjecture which certainly do not constitute a proper basis, for the board’s action. All we have is the mere opinion that those things are going to happen. That is not sufficient as a basis for refusing permission. The United States Supreme Court said in Hague v. Committee for Industrial Organization, supra, 516, in speaking of the refusal to permit assemblies in parks and streets:
“It (the ordinance dealing with permits) does not make comfort or convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent ‘riots, disturbances or disorderly assemblageIt can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs, for the prohibition of all speaking will undoubtedly ‘prevent’ such eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the [207]right.” And in Cox v. New Hampshire, 312 U.S. 569, 577 [61 S.Ct. 762, 85 L.Ed. 1049, 133 A.L.R. 1396]:
“In Hague v. Committee for Industrial Organization, supra, the ordinance dealt with the exercise of the right of assembly for the purpose of communicating views; it did not make comfort or convenience in the use of streets the standard of official action but enabled the local official absolutely to refuse a permit on his mere opinion that such refusal would prevent ‘riots, disturbances or disorderly assemblage.’ The ordinance thus created, as the record disclosed, an instrument of arbitrary suppression of opinions on public questions. The court said that ‘uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right. ’ '' Likewise, in the instant case the refusal based upon mere opinion is arbitrary and that is all the board had upon which to base its action. Also, similarly the assumption by the board and the majority opinion that there will be noise and boisterous conduct, must be based upon the untenable premise that all law enforcement facilities and the school authorities will be wholly impotent or will refuse to maintain order and protect the pupils in attending classes, an assumption of nothing less than anarchy. To that proposition the complete answer is made in Hague v. Committee for Industrial Organization, supra, 516, the “uncontrolled official suppression . . . cannot be made a substitute for the duty to maintain order. ...” Both of the factors touching interference with school functions are predicated on what some third persons may or may not do. The board in refusing permission is not exercising its judgment. It is bowing to the threats or conjectured conduct of third persons. In the one case it is picketing and in the other the possible refusal of the pupils to attend classes. If it is permitted to base its action on such grounds there is nothing left of the cherished rights of freedom of speech and assembly and of the declared right to use school buildings for that purpose. If the Republican Party desires the use of a school building to hold a meeting the board may refuse permission upon the assumption or threat by the parents of students of Democratic persuasion that they will not attend classes. If any meeting of any character by any group is proposed and it is opposed by only one person or many persons attending the school a denial of permission might follow, That amounts, not to a fair exercise of discretion by [208]the board on the issue of interference with school functions, but to a dictatorship by one person or many, completely negativing the constitutional guaranties and the right to use school buildings to express them. The question of interference with school functions cannot thus be made to turn on the whim and caprice of the mental attitude of the pupils toward the proposed meeting. In such event it is not the proposed assemply which interferes with the school program, it is the pupils who are interfering because of their refusal to attend classes, but the board in denying the permit is penalizing the group desiring to assemble rather than the pupils. The same reasoning applies where there is a threat or assumption of noise, commotion, rioting or violence which will disturb the classes. And in addition there is the factor that such condition, if it arises, should be and presumably will be controlled by the proper authorities. Suppose someone threatened to burn the school buildings if the meeting were held. Would anyone, say that such a threat was such an interference as to authorize a denial of permission Í Even if there is reason to believe that there will be noise which will disturb classes, the school officials are competent to cope with that situation. They may maintain order and prevent any undue commotion or disturbance.
The reasoning upon which the majority opinion is based makes it possible for any school board to deny the use of school buildings to anyone who may apply when the proposed use is for a purpose which may be even slightly controversial, as it will not be difficult to find those who will object and threaten. This is all that is required to deny permission for such use under the rule of the majority opinion. This places in the hands of school boards, especially in those communities where there is only one school building available for such uses, the power to deny permission for the use of such building to anyone whom a majority of the board dislike. Discrimination and favoritism are bound to result, and the obvious purpose and object which the Legislature had in mind in enacting the so-called Civic Center Act will be frustrated.
The history of civilization is replete with instances in which those in power have sought to suppress expression of the thoughts and ideas of those advocating philosophies with which they did not agree. Human nature has not changed, and notwithstanding constitutional and statutory provisions and court decisions declaring the rights of freedom of speech and assembly to constitute the very foundation of our demo[209]cratie way of life, there are still those who because of ignorance, prejudice, self-interest or blind bigotry would deny these rights to those who advocate a philosophy out of harmony with their own views. To the end that the basic concept of our civil liberties may be preserved with fairness and equality to all, the courts should be alert to strike down any attempted infringement of these fundamental rights regardless of the guise under which it is cloaked.
Petitioner’s application for a rehearing was denied November 29,1945. Carter, J., voted for a rehearing.