Kaufman, Anderson and Mansfield, Circuit Judges.
IRVING R. KAUFMAN, Circuit Judge:
The first amendment proscription against any law abridging freedom of expression, perhaps more than any other constitutional guarantee, frequently brings into sharp focus the inexorable tension between enduring concerns for individual freedom and the authority required to preserve the democracy so crucial to realizing that freedom. For several decades, the courts have struggled with principles and concepts necessary to strike a functional balance between protected speech and the government's legitimate interest in protecting our democracy.*fn1
The Supreme Court has more than once instructed that "the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Shelton v. Tucker, 364 U.S. 479, 487, 81 S. Ct. 247, 251, 5 L. Ed. 2d 231 (1960), quoted in Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 512, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). Rightly called the "cradle of our democracy," our schools bear the awesome responsibility of instilling and fostering early in our nation's youth the basic values which will guide them throughout their lives. Appellant is quick to agree that we cannot tolerate undisciplined, coercive, intimidating or disruptive activities on the part of teachers or students which threaten the essential functions of our schools, and that such conduct requires a disciplinary response. But, the issue in this case is whether, in assuming the role of judge and disciplinarian, a Board of Education may forbid a teacher to express a political opinion, however benign or noncoercive the manner of expression. We are asked to decide whether a Board of Education, without transgressing the first amendment, may discharge an 11th grade English teacher who did no more than wear a black armband in class in symbolic protest against the Vietnam War, although it is agreed that the armband did not disrupt classroom activities, and as far as we know did not have any influence on any students and did not engender protest from any student, teacher or parent. We hold that the Board may not take such action.
The facts essential to a resolution of the conflicting interests are undisputed. On June 7, 1969, Charles James was employed as an 11th grade English teacher at Addison High School, located near Elmira, New York. He previously had taught in the New York City public schools. After moving to the Elmira area, James, a practicing Quaker, joined the Elmira Meeting of the Religious Society of Friends.
When November 14 and December 12, 1969, were designated as "moratorium" days by the opponents of the Vietnam War, the Elmira Meeting determined to observe the two days by wearing black armbands.*fn2 On November 14 James affixed one of the armbands, which had been prepared by the Meeting, to the sleeve of his jacket. He since has stated that he "resolved to wear one of the black armbands as an expression of [his] religious aversion to war in any form and as a sign of [his] regret over the loss of life in Vietnam."
Shortly after school began that day, Carl Pillard, the Principal, entered James's homeroom, noticed the armband, but made no comment. Pillard waited until midway through the second period when James was teaching poetry, apparently without any incident or discussion whatsoever relating to Vietnam or the armband, to summon James to his office and to request him to remove the armband. When James refused to remove it, Pillard sent him to the District Principal, Edward J. Brown. Brown ordered James to remove the armband or risk suspension or dismissal because the armband constituted a symbolic expression of his political views.*fn3 In addition, Brown feared that "wearing the armband would tend to be disruptive and would possibly encourage pupils to engage in disruptive demonstrations." When James again refused to remove the armband, Brown summarily suspended him and ordered James to leave the school at once.
The following day James received a letter from the Board of Education of Central District No. 1, reinstating him on "the understanding that [he] engage in no political activities while in the school."*fn4 James resumed his teaching duties, but, steadfastly abiding by his principles, whether religious (Quakers are doctrinally opposed to war) or political in nature, he came to school wearing an armband on December 12, the second moratorium day. He was summarily suspended as soon as Brown learned that James again had worn an armband. Here, too, the record is barren of a scintilla of evidence indicating that there were any incidents or threats to school discipline, that any students or teachers had complained of or were offended by James's first or second symbolic protest, or that the armband constituted more than a silent expression of James's own feelings. On January 13, however, without affording James a hearing, the Board of Education of Central District No. 1 discharged him from his teaching position in accordance with § 3013(1) of the Education Law of New York, McKinney's Consol.Laws, c. 16.*fn5
James appealed his dismissal to the New York State Commissioner of Education, Ewald B. Nyquist, asserting that his dismissal infringed upon his first amendment rights and deprived him of due process of law.*fn6 The "hearing" before the Commissioner, as we were informed at the argument of this appeal, was no more than an informal roundtable discussion between the Commissioner, the parties and their attorneys. No transcript of the proceedings was made. On September 23, 1970, Commissioner Nyquist filed his decision. Although he recognized that a board of education does not have unfettered discretion to dismiss a probationary teacher,*fn7 he concluded that James had violated "sound educational principles" and that his actions "were not constitutionally protected." In addition, he reaffirmed the Board of Education's absolute right to dismiss a probationary teacher without affording the teacher a hearing or explaining the basis of the discharge.
Thereupon, James instituted this action in the Western District of New York against the Board of Education of Central District No. 1, Edward Brown, Carl Pillard and Robert Andrews, President of the School District Board of Trustees, alleging that his dismissal violated 42 U.S.C. § 1983.*fn8 Judge Burke, in a brief memorandum, denied James's motion for summary judgment and granted the defendants' motion for a judgment, summarily dismissing the complaint on the merits, seemingly on two grounds: first, that the issues raised by the complaint were res judicata, and second, that none of James's federally protected rights was violated.*fn9
At the outset we are presented with the contention that the claims asserted below are res judicata. We consider this to be wholly without merit. Appellees argue that James, at his own choosing, was given the full opportunity to litigate his claims before the Commissioner of Education, a "judicial officer" of the State, and therefore that James should be bound by the Commissioner's decision. Judge Burke buttressed their position with a pointed reference to James's failure to appeal the Commissioner's decision to the New York courts.*fn10
It is no longer open to dispute that a plaintiff with a claim for relief under the Civil Rights Act, 42 U.S.C. § 1983, is not required to exhaust state judicial remedies. See, e. g., Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Rodriguez v. McGinnis, 456 F.2d 79 (2d Cir. 1972) (in banc); Sostre v. McGinnis, 442 F.2d 178, 182 (2d Cir. 1971) (in banc), cert. denied, 404 U.S. 1049, 92 S. Ct. 719, 30 L. Ed. 2d 740 (1972). It is still the law in this Circuit, however, that a Civil Rights plaintiff must exhaust state administrative remedies. Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S. Ct. 82, 27 L. Ed. 2d 75 (1970). It hardly can be suggested that a plaintiff having followed the course laid out by Eisen, was to be barred henceforth from pressing his claim to final judicial review or to be deprived of his opportunity to litigate his constitutional claims in the judicial forum of his choice. To adopt the full implication of appellees' argument would be to effect a judicial ...