Saturday, March 29, 1924. Yesterday's news, or not. Morning mail.

 Well, it was the "Night Mail" edition.  You'd get it Saturday morning.

The local paper was a day behind on Daugherty, but only to the extent that you got this edition first thing in the morning, or in Saturday's morning mail.

Morning mail?

Yes, morning mail.  Mail was delivered twice per day until 1950.  It varied a bit by city, however, with some cities restricting that to businesses, and some covering everyone.  Some cities had business delivery more than once per day, with some delivering to businesses up to seven times per day. 

Twice per day home delivery ended on April 17, 1950.  For businesses, that ended in 1969.

The same issue had a tragic story of a love gone lethally wrong, and a shooting at the Lavoye.

The final addition, from the next day, followed up on that last story.

Last prior edition:

Friday, March 28, 1924. Daugherty resigns.

1920s, 1924, Calvin Coolidge, Petroleum, Teapot Dome Scandal

In Memoriam. Melanie Safka, 1947-2024

Best remembered for Brand New Key, she was, in some ways, a slightly earlier, and somewhat less known, version of the same sort of singer than Linda Ronstadt would become, even preforming some of the same songs.

She performed at Woodstock, still so young that her mother went with her.

What Have They Done to My Song Ma is one I recall from my childhood for some reason, dimly recalling that my mother liked it.

Tuesday, January 12, 1943. Landings at Amchitka, Operation Iskra.

The U.S. landed troops on Amchitka.  It was an unopposed landing, as the Japanese had chosen not to occupy it.  Weather was bad and unpredictable and the USS Wordon was swept into rocks and ultimately broke up.  Fourteen of the crew died and the commanding officer was swept off the ship, but survived, while it was being abandoned.  The Japanese learned of the landing several days later when weather cleared sufficiently for a scout plane to overfly the island.

USS Worden sinking.

The island was used as an airbase by the U.S. in spite of the horrible weather it experiences, and set the stage for the US assault on Kiska.

The island is large by Aleutian standards, consisting of 116 square miles.  Not too surprisingly, given its size, it was historically occupied by the Aleuts but there has been no population on the island since 1832.  It's tectonically unstable.

Because of its uninhabited status, it was chosen by the US for underground detonation of nuclear weapons in order to test seismic detection, with nuclear weapons being inserted in bore holes in 1965, 1969 and 1971.

The parents of the Sullivan Brothers were informed for the first time that their sons, who had gone down in action in November, were missing in action.

In our last entry we noted the ship named in honor of the Sullivan brothers, the USS Sullivans.  Oddly enough, it was in the news yesterday after taking a huge haul of Iranian AKMs that were being shipped to Yemen.

Winston Churchill departed for Morocco to meet with Franklin Roosevelt, who had left the day prior.  Their departures were obviously kept secret.

The Soviets launched Operation Iskra aimed at breaking the German's siege on Leningrad.

Pierre Laval concluded a deal with Nazi Germany, allowing the Germans to administer the Departments du Nord and Pas de Calais.  France, under the arrangement, also pledged to provide 400,000 skilled workers to Germany and to essentially provide the remaining elements of its navy to Germany.  France retained the policing role in the German administered territories.

President Roosevelt addressed farmers for Farm Mobilization Day.

January 12, 1943

All over the world, food from our country's farms is helping the United Nations to win this war. From the South Pacific to the winter front in Russia, from North Africa to India, American food is giving strength to the men on the battle lines, and sometimes also to the men and women working behind the lines. Somewhere on every continent the food ships from this country are the life line of the forces that fight for freedom. This afternoon we have heard from some of the military and civilian righters who look to us for food. No words of mine can add to what they have said.

But on this Farm Mobilization Day I want to round out the picture and tell you a little more about the vital place that American farmers hold in the entire war strategy of the United Nations.

Food is a weapon in total war- fully as important in its way as guns or planes or tanks. So are other products of the farm. The long-staple cotton that goes into parachutes, for example, the oils that go into paints for the ships and planes and guns, the grains that go into alcohol to make explosives also are weapons.

Our enemies know the use of food in war. They employ it cold-bloodedly to strengthen their own fighters and workers and to weaken or exterminate the peoples of the conquered countries. We of the United Nations also are using food as a weapon to keep our fighting men fit and to maintain the health of all our civilian families. We are using food to earn the friendship of people in liberated areas and to serve as a promise and an encouragement to peoples who are not yet free. Already, in North Africa, the food we are sending the inhabitants is saving the energies and the lives of our troops there. In short we are using food, both in this country and in Allied countries, with the single aim of helping to win this war.

Already it is taking a lot of food to fight the war. It is going to take a lot more to win the final victory and win the peace that will follow. In terms of total food supply the United Nations are far stronger than our enemies. But our great food resources are scattered to the ends of the earth—from Australia and New Zealand to South Africa and the Americas- and we no longer have food to waste. Food is precious, just as oil and steel are precious. As part of our global strategy, we must produce all we can of every essential farm product; we must divide our supplies wisely and use them carefully. We cannot afford to waste any of them.

Therefore the United Nations are pooling their food resources and using them where they will do the most good. Canada is sending large shipments of cheese, meats, and other foods on the short North Atlantic run to Britain. Australia and New Zealand are providing a great deal of the food for American soldiers stationed in that part of the world. Food from Latin America is going to Britain.

Every food-producing country among the United Nations is doing its share. Our own share in food strategy, especially at this stage of the war, is large, because we have such great resources for production; and we are on direct ocean lanes to North Africa, to Britain, and to the northern ports of Russia.

American farmers must feed our own growing Army and Navy. They must feed the civilian families of this country and feed them well. They must help feed the fighting men and some of the war workers of Britain and Russia and, to a lesser degree, those of other Allied countries.

So this year, as never before, the entire Nation is looking to its farmers. Many quarters of the free world are looking to them too. American farmers are a small group with a great task. Although 60 percent of the world's population are farm people, only 2 percent of that population are American farmers. But that 2 percent have the skill and the energy to make this country the United Nations' greatest arsenal for food and fiber.

In spite of the handicaps under which American farmers worked last year, the production victory they won was among the major victories of the United Nations in 1942. Free people everywhere can be grateful to the farm families who made that victory possible.

This year the American farmer's task is greater, and the obstacles more formidable. But I know that once more our farmers will rise to their responsibility.

This farm mobilization is the first day ever dedicated by a President to the farm people of the Nation. I know that the whole country joins with me in a tribute to the work farmers already have done, in a pledge of full support in the difficult task which lies ahead for farmers, and in a prayer for good weather to make farmers' efforts more fruitful.

Our fighting men and allies, and our families here at home can rely on farmers for the food and other farm products that will help to bring victory.

April 7, 1971. Withdrawals and Accessions.

President Nixon announced on television that he was withdrawing a further 100,000 U.S. troops from Vietnam, with the withdrawals to take place at a rate slightly over 14,000 per month. There were currently 284,000 US troops in the country, down from approximately 500,000.

Nixon had been withdrawing troops for most of his Presidency, while at the same time occasionally intensifying the air operations.  It was a twin strategy of brining the troops home from an unpopular war while simultaneously punishing the North Vietnamese for their actions. The strategy was termed "Vietnamization" and was claimed to be based on the evolution of the war to the point where the south could take over the fighting on its own.

Indeed, North Vietnamese forces had been so depleted during the Tet Offensive of 1968 that they were in fact more ineffectual in the field against the U.S. Army and the U.S. supported ARVN, something that has lead some to claim that Nixon was withdrawing troops as the war was effectively won.  In retrospect, based upon what we now know of Nixon's thoughts, Nixon was looking for a way out of the war that afforded some sort of cover that the U.S. hadn't abandoned the south, even though that is exactly what he was effectively doing.  As a practical matter, however, by this point in the war, and partially due to the obvious withdrawal policy, the morale of U.S. forces in Vietnam was collapsing and there were serious concerns about the extent to which that was impacting the Army as a whole.

Most of the American forces in Vietnam were always support troops, although there were certainly many combat soldiers. While there were still combat forces in Vietnam in 1971, by this point the scale was heavily weighted towards support troops.

On the say day, the U.S. abandoned Khe Sanh for the second time.  It had been earlier reactivated that year in support of ARVN operations in Laos.  In that country, the Royal Laotian Army commenced a defensive counter strike against Laotian communist troops in Operation Xieng Dong which would result in a successful defense of the country's capitol against them.

Meliktu Jenbere was elected as the second Patriarch of the Ethiopian Orthodox Tewahido Church, a branch of Oriental Orthodoxy, and indeed its largest branch. 

Saint Mary's Ethiopian Orthodox Tewahedo Church, Denver Colorado

This is Saint Mary's Ethiopian Orthodox Tewahedo Church in Denver Colorado. The Ethiopian Orthodox Tewahedo Church is a non-Chalcedonian (Oriental Orthodox) church. This church is located in north eastern Denver.

He was the second Patriarch of the church, reflecting the fact that the church became autocephalous in 1948, at which time it was accorded that status by the Coptic Church.  He became the acting Patriarch in 1970 at the time of his predecessor's death.

He was imprisoned by the Marxist government of Ethiopia in 1974 which attempted to depose him while he was in prison, an act that the Coptic Church refused to recognize.  He was treated cruelly while a prisoner and executed by strangulation on August 14, 1979.  The Church in general was heavily persecuted during it's Communist era, which ran from 1974 until 1991, and the largest political party in the country today remains a reformed Communist party.

Baseball opened with a double header, the A's v. the White Sox, for the last time. 

I remember it.

The event referred to here, that is:

Lex Anteinternet: April 30, 1970. The Incursion into Cambodia: Well remembered, but not well remembered accurately, on this day in 1970 President Richard Nixon announced that Republic of Vietnam and the ...

On May 1, 1970, US troops entered Cambodia in Operation Rock Crusher.  The operation sent the 1st Cavalry Division, which was famously air mobile in Vietnam, i.e., "air cavalry", the 11th Armored Cavalry REgiment, the ARVN 1st Armored Cavalry Regiment and the ARVN 3d Airborne Brigade into Cambodia following a massive B-52 air strike.

Engineers of the 11th ACR sweeping for mines ahead of a M551 Sheridan.

And that's what I remember.

It surprises me to realize that at the time I was six years old and in 2nd Grade.  Indeed, that simply amazes me in recollection.  I've long known that I recalled this event, in a certain way, but I'd associated it with being older.  Not six and almost seven, and not as a 2nd Grader.

In 1970, the year I was in 2nd Grade, I was in my second year of attendance of a grade school that was later sold by the school district in a sale that I still question, even though I have no real reason to.  I'll forgo commenting on that, at that time grade schools here worked the way that they do most places. They had a territory.  Later, in a controversial move that I still very much question, that practice was altered so that there were no home schools, leaving parents to struggle to place their children in a district housing over 60,000 people, as they also juggled their daily lives. But that's another story.

Looking back, I realize that I entered public school in the Fall of 1968, completing the year as a newly turned 5 year old.  So by extension I completed first grade having just turned 6 in 1969 and I would turn 7 just before school was let out in 1970.  In April and the first of May, 1970, I was still 6.

We 6 and 7 year olds didn't think much about the Vietnam War.

Our house in about 1958. This was before my birth.  My mother is to the left of the house, the only ones my parents ever owned.

That's interesting in a way as over time there's come to be a genera of literature that reflects childhood memories of war, and mostly of World War Two.  And when I say that, I mean American memories.  Europeans and Asians who were 6 or 7 definately have memories of World War Two as there wasn't a square inch of Europe that wasn't impacted by the war.  Even lands where a German jackboot never set foot, or where Japanese infantry never trod, were heavily impacted directly by the war.  The British were bombed and sent their children, if they could, to the countryside.  Swedes lived on short rations, pinned into between the Germans in occupying Norway and the war raging on the Finnish/Soviet border.  Swiss rations in the neutral nation became so short that serious worries over starvation set in and commons gardening became common.  And of course if you were in an area where ground forces contested for ground or even occupied it the events were unforgettable.

But in the United States none of that occured and so the memories are of other things.  But they are there.  Films like Radio Days and the like by some really well known actors depict the era and what it was like to be in the various stages of being young.  Even Gene Shepherd's A Christmas Story touches on it a bit, with Shepherd setting his Yuletide recollections forward in time, as he was actually that age several years prior himself, during the Depression. Shepherd served in World War Two.

Of course, Shepherd's A Christmas Story might in fact be the most accurate depiction for a young person, the way they perceive remote events.  Set in 1940, the kids worry about Christmas gifts and school yard bullies, not the Germans having just invaded France.  Likewise, in 1968, 69 and 70, when I was first in school, we didn't worry about the Republic of Vietnam.  We didn't even discuss it in school.

When I entered grade school, and through the early years of it, the day had a pretty set routine.

My father left for work really early, often before I was up.  Back then he got up around 5:00, which seemed really early, but now I get up no later that, and often a lot earlier than that, myself.  In my very early grade school years my mother sometimes made me breakfast but a lot of times I just ate cereal and drank milk.  I still eat cereal for breakfast quite a bit, but I never drink milk anymore and really haven't since my grade school years.

We had a Zenith television at home.  It was in the kitchen, which is also where we always ate.  It'd been placed in a spot that was just below a window by the stove, kind of an awkward place to put it, and I know that it had been relocated from the living room to there. That was likely because my father often worked in the evenings using the kitchen table for a work table.  Indeed, that some table was used for absolutely everything.

Television was new to my parents at the time and the TV, looking back, I now realize had only made its appearance a couple of years prior.  Up until then they didn't have one so this television was their first TV.  As first generation television owners their habits didn't really match later generations in regard to it, although in my father's case it came to somewhat resemble the modern a bit at one time, before ceasing to once again.  Anyhow, neither of my parents turned the television on in the morning.

But I did, and my mother let me do that.

At that time there was no such thing as cable television, at least in our town, and so broadcast TV was it.  Very early on there was only one channel, but because of my specific memory recollected here, I know that we had at least two, and maybe three, channels.  One of the channels, even though it was local, rebroadcast material from Denver's KOA television and other channels.  In the morning that one played kids shows.  One was the legendary Captain Kangaroo, which I would watch before going to school, and the other was a local Denver product which featured a young female host and a sock puppet character of some sort.  That one took submissions form the viewing audience and I once had a drawing I sent in shown in that part of the show.

School started at 8:00 and some time prior to that I went out the door, rain, shine or snow, and walked to school. The hike was about a mile, which isn't far.  Nobody ever drove me or my associates to school. . . ever.  Indeed, while my mother could drive and my father had purchased what I now know was a 1963 Mercury Meteor for her to have something to drive, but she was an awful driver and it was undoubtedly best she didn't drive me to school, but then nobody's parents did. The few kids who were hauled to school by motor vehicle were hauled by school bus, if they lived in the boundaries.  At the end of the school day, which I think was around 3:30, we walked back home.

If we had homework to do we did it then, and I know that homework actually did start to become a feature of our routine in 2nd Grade.  Our parents were expected to help us with penmanship, which my mother did.  Both of my parents had beautiful handwriting.  I never have.  They also helped us with math, which at that time my mother did as well. Both of my parents were really good with math, which I also have never been.  I recall at the time that we all had to struggle with "New Math", which was as short lived ill fated experiment at teaching something that is both natural and in academics dating back to antiquity in a new way.  It was a bad experiment and its taken people like me, upon whom it was afflicted, decades to recover from it.  It also meant that both of my parents, my mother first and my father later, were subject to endless frustration as they tried to teach me math effectively, having learned real math rather than new math.

If I didn't have home work or if I had finished it, I was allowed to turn on the television once again.  Gilligan's Island, the moronic 1960s sit com, was already in syndication and one of the local channels picked it up in a rebroadcast from Denver and played it at 4:30. At 5:00 the same channel played McHale's Navy.

My father normally left work around 5:00 p.m. and was home very shortly thereafter.  At this point in time he had to travel further across town so that usually meant that he was home no earlier than 5:15 but on some occasions it was later, around 5:30.  Usually he got home prior to 5:30 however, and when he did, he switched the channel to the news over my protests.

The network nightly news came on at 5:00 and ran to 5:30. At 5:30 the local news was shown on one of the local channels.  My father watched both and the custom became to leave the television on during dinner, something that I haven't liked as an adult.  From around this time until his later years he kept the television on until he want to bed, often simply as something on in the background as he worked.  Interestingly, he'd counsel me not to attempt to do homework in front of the television as he regarded it as impossible. I didn't at the time, but he was quite correct.

I don't recall what he watched on TV as a rule.  My mother never picked up the evening television habit and just didn't watch it.  Indeed, her intentional television watching was limited to a very few number of shows including Days Of Our Lives during one hour of the daily afternoon, and things such as The Carol Burnett Show or Lawrence Welk.    Having said that, just looking through the shows that were on in 1970, it seems to me back then they both watched some series that were brand new to television at the time.  The Mary Tyler Moore Show was one they both liked and it debuted in 1970. The Odd Couple was as well..  The Flip Wilson Show they also liked and was new. The short run Tim Conway Show they also liked.  Some others that were still on that they never watched were shows like Hogan's Hero's, which was nearing  the end of its run.

One thing that networks did at that time, as well as local channels, was to run movies.  When they did, it tended to be a big deal.  I can recall Lawrence of Arabia running when I was in my early grade school years, being broadcast over two nights.  My mother, who admired T. E. Lawrence, watched both nights, which was unusual.  I also recall The Longest Day running, again over two nights, when I was in 1st Grade.

So what's that have to do with Cambodia?

11th ACR in Cambodia.

Well, a lot in terms of my recollection of this day.

We grade school boys were familiar with war, as in "the war", and that war was World War Two.  Some of us had fathers who had been in World War Two, although they were older fathers, keeping in mind that in that era people had larger families and children stretched out over their parent's lifespans often differently than they do now.  It wasn't unusual for a grade school kid to have a father who had been in World War Two, and indeed my closest friend's father had been in the ETO during the war.  The dominance of World War Two in the culture, however, may be shown by the fact that I had a father who had been in the Korean War and I still thought of World War Two as "the war" and my father more or less did as well, which is odd to realize in that it wasn't just him, but others of his age and equivalent experience who took that view.  Indeed, it seems to me that it wasn't until right about this time, 1970, that the started to talk about their own war at all, and indeed also about this time it began to creep into the culture as background elements in popular stories.

Adding to this was the impact of popular culture.  As noted, the movie The Longest Day was such a big deal that it sticks out in my mind as something shown on television around 1969, probably in a network premier.  The movie Patton, one of the most celebrated American military movies of all time, was released in April 1970, and indeed its sometimes noted that President Nixon and Secretary of State Kissinger watched a private screening of it just shortly before U.S. armor went into Cambodia, although the suggestion that this influenced Nixon seems specious to me, the invasion having been something that events were working up to since the mid 60s and which had been ongoing for weeks prior to the US putting its forces in.  In other media, kids who liked cartoon books, which I never have, circulated such works as Sergeant Rock or GI Combat, both of which were set in World War Two.

So, for a 6 and 7 year old boy, we knew about wars, in the childish youthful glorification of war sense that has been a common feature of the play of boys since the dawn of man, but the war we knew about was a movie and cartoonish version of World War Two.

On May 1, 1970 I watched Gilligan's Island.  Following that McHale's Navy came on and I started watching that.  My father got home almost immediately after McHale's Navy started and switched the channel to the news, over my protest.  To my shock, the news featured M113 Armored Personnel Carriers crossing a river.  

I was stunned and asked my father "what's that?".  It looked like something out of The Longest Day.  I can't recall his exact words but he told me that the scene depicted US troops in action in Cambodia.

The fact that it had an impact is best demonstrated that fifty years later, I still recall it.  It was unsettling.  Even at 6 it was obvious that the school yard games we played in which the Allies and the Axis duked it out in Europe and Asia 30 years prior were being overshadowed by a real war in our own era.  People were fighting and it wasn't a game.

It was a type of epiphany, to be sure.  But a person needs to be careful about claiming too much.  It isn't as if at nearly age 7 I suddenly became keenly aware of everything going on in Indochina.  But suddenly I was much more aware of something that had actually been playing in the background my entire life.  Indeed, as it was in the background, but subtle, and often limited at that age to a short snipped on the nightly news that was often devoid of any real engaging footage, it was just something, up until then, that was.

Of course, while 7 years old isn't old, even at 7 your early early childhood years are waning.  The next five years in Vietnam, only three of which had a large scale American presence, were ones that were hard not to be aware of.  The unrelated but still huge news event of Watergate was impossible not to be aware of.  And by the time the Republic of Vietnam started collapsing in 1975, I was old enough to be very much aware of it.

But that awareness started on this day in 1970.

_______________________________________________________________________________
Related thread:

Growing up in the 1960s

So then what? Lex Anteinternet: December 1, 1969. The United States resumes a lottery system for conscription.

Last week we published this item:

Lex Anteinternet: December 1, 1969. The United States resumes a lott...:

In that, we noted the following:

The resumption of a lottery system for the draft, in which each registrant was assigned a number and the number then drawn at random, was designed to attempt to reduce the unpopularity of conscription at that point in the Vietnam War.  Numerous changes were made to the system during the war including ending a marriage exemption and ultimately curtaining an exemption for graduate students. With the adoption of the lottery system also came a change in age focus so that rather than top of those in the age range being drafted it then focused on those who were 19 years old. The reason for this was that if a person's number wasn't chosen in the lottery as a 19 year old, they were not going to be drafted and could accordingly plan around that.

So, as noted, the concept was that the lottery would reduce resistance to the draft.

So, did it?

In fact, it did remarkably, and not only that, protests of the Vietnam War dropped off on college campuses remarkably in 1970.

Now, not completely.  Indeed, one of the absolute worst events associated with the era of college war protests, the shooting at Kent State, would come in 1970.  But there was a marked reduction.

Indeed, university faculty, which had evolved from a sort of genteel conservatism early in the 20th Century into an increasingly liberal faculty over the years, was both surprised and disappointed as they'd come to believe that the core of the opposition was social concern, rather than personal concern.  It turned out that at least the evidence was the opposite.

So, what generally occurred with the lottery is that a large number of men knew after a lottery call that they were never going to be drafted and they accordingly planned conventionally.  Another group knew for sure it had been drafted and planned for that. A number in the middle felt their chances of being drafted were likely, reviewed the deferments they might be qualified for, with quite a few heading for Reserve component recruiters or the ROTC building.

The opposition to the war certainly didn't end.  But the heat had been taken out of the issue to a surprising degree.

December 1, 1969. The United States resumes a lottery system for conscription.

This is, frankly, a bit confusing.

The United States had resumed conscription following World War Two in March 1948.  It had only actually expired in January 1947, showing how a need for manpower in the wake of World War Two caused it to actually continue to exist in spite of a large reduction in force following the end of the war.

After coming back into effect in March 1948 it stayed in existence until 1973, but was then done away with following the end of the Vietnam War. By that time conscription was massively unpopular.  It can't be said to have ever really been "popular", per se, but it didn't meet with real resistance until the Vietnam War.

The resumption of a lottery system for the draft, in which each registrant was assigned a number and the number then drawn at random, was designed to attempt to reduce the unpopularity of conscription at that point in the Vietnam War.  Numerous changes were made to the system during the war including ending a marriage exemption and ultimately curtaining an exemption for graduate students. With the adoption of the lottery system also came a change in age focus so that rather than top of those in the age range being drafted it then focused on those who were 19 years old. The reason for this was that if a person's number wasn't chosen in the lottery as a 19 year old, they were not going to be drafted and could accordingly plan around that.

Because of the way that the draft worked prior to 1969, and even after that date, many men joined the service when faced with the near certainty of being conscripted. As a result, oddly, far more men volunteered for service than who were actually conscripted.  Additionally, the number of men who were volunteers for the service who served in Vietnam outnumbered those who were drafted, with a surprisingly large number of troops who served in the war itself volunteering for service in Vietnam.

Apollo 12 Returns to Earth. November 24, 1969

Apollo 12 and the USS Hornet.

On this day in 1969, the Apollo 12 crew rode their module back down to Earth.

The recovery was affected by the USS Hornet, the U.S. Navy's aircraft carrier that famously was used in World War Two.  The Hornet had been commissioned in 1943, decommissioned in 1947, and then recommissioned with a new angled flight deck 1953. At the time of her recommissioning she was a small aircraft carrier and she was decommissioned again in 1970, just the following year after this mission.  She was struck from the roles in 1989 and is now a museum ship in Alameda, California.

The Apollo 12 mission was a successful one, particularly in light of its frightening start when the Saturn rockets were struck twice by lightening during the launch.  Seismographers were left on the moon when the lunar capsule was launched back to the orbiting module and the launching apparatus' vibrations on the surface of the moon lasted for over an hour.

November 19, 1969. Apollo 12 Lands on the Moon.

November 14, 1969. Apollo 12 launched.

It was, of course, a mission to the moon.

Lightening struck the Saturn rocket twice as it was lifting off, taking all three fuel cells offline.  Irrespective of that, it flew normally.

Today In Wyoming's History: November 7, 1969. Death of Thurman Arnold.

Today In Wyoming's History: November 7:

1969  Thurman Arnold, Assistant Attorney General for Antitrust actions in the Roosevelt Administration from 1938 to 1943, and former Mayor of Laramie, born in Laramie, died on date.  The Thurman Arnold Building in Washington D. C. is named after him.  He was later a Justice of the D. C. Circuit.

Butch Cassidy and the Sundance Kid, released.

The iconic Western movie, of course.

It's a movie that I haven't reviewed yet (I guess this will have to suffice for the review), in spite of an effort here to catch movies of interest that are "period pieces", if you will, which all non fantasy movies set in the past are.

The 1969 movie is one of the best loved and best remembered western movies.  It took a much different tone in regard to Western criminals than the other major Western of the same year, The Wild Bunch.  I frankly prefer The Wild Bunch, which as I earlier noted is a guilty pleasure of mine, but I love this film as well.

Butch Cassidy and the Sundance Kid is a romanticized and fictionalized version of the story of the two Wyoming centered Western criminals who ranged over the entire state and into the neighboring ones.  In the film, which is set in the very early 1900s before they fled to Boliva, and which follows them into Bolivia, the two, portrayed by film giants Paul Newman (Butch) and Robert Redford (Cassidy), come across as lovable rogues, and barely rogues at that.  The film had a major impact at the box office and came in an era in which the frequently predicted "end of the Western movies" had already come.

The Hole In The Wall Gang, lead by (Robert LeRoy Parker) Butch Cassidy, far right, and Harry Lonabaugh (the Sundance Kid). This photograph was a stupid move and lead to their downfall.

So how accurate is it?

Well, pretty mixed. 

Even the Pinkerton Detective Agency allows that they are the two romanticized Western criminals, and there are quite a few romanticized Western criminals, are closest to their public image. They were intelligent men and got away with their depredations in part as there were locals who liked them well enough not to cooperate with authorities, although that was also true of much less likable Western criminals.  And the vast majority of characters in the film represent real figures who filled the roles that they are portrayed as having in the film.  So in that sense, its surprisingly accurate.

Where it really fails, of course, is in glossing over the fact that they were in fact violent criminals.  And as outlaws their history is both violent and odd for the era.  The Wild Bunch, the criminal gang with which they are most associated, was extremely loosely created, and people came and went, rather than there being just one single group of outlaws.  The Wild Bunch itself generally took refuge, when it needed to, in Johnson County's Hole in the Wall region (their cabin exists to this day) and perhaps because of this or because of several of them being associated with the Bassett sisters, the daughters of a local small rancher, their activities oddly crossed back and forth between pure criminality and association with the small rancher side of the conflict that lead to the Johnson County War.  This latter fact, once again, may have contributed to their image as lovable criminals, even though they themselves were not in the category of individuals like Nate Champion who were actual small cattlemen who were branded as criminals by larger cattle interest. The gang was, rather, made up of actual criminals.

So the depiction of them simply attacking the evil (in the film) Union Pacific is off the mark. They were thieves.  Just less despicable thieves than most.

They did go to Bolivia and their lives did end there, according to the best evidence.  The film accurately portrays their demise coming in the South American country even if it grossly exaggerates that end, persistent rumors of at least Butch's survival aside.

Material detail wise the film is so so.  This late 1960s movie came at a time at which a high degree in material details, a bar set by Lonesome Dove, hadn't yet arrived, so the appearance of things reflects the movie styles of the late 1960s more than the actual appearance of things in the early 1900s.  Arms, however, are correct as in this movie making era the tendency to try to stand out by showing unique items in use hadn't arrived.

All things being considered, it is a great Western and well worth seeing.  It belied the belief that the era of Westerns was over, and in some ways it recalls earlier sweet treatment of Western criminals who were supposed to be just wild boys at heart.  Nobody gets killed in the film until Butch and Sundance do at the bitter end, which contributes to that.  In reality, The Wild Bunch is likely a more realistic portray of Western criminals, but this is a great film.

Reconsidering the Black 14

October 17, 2019 marked the 50th Anniversary of Coach Eaton unceremoniously tossing fourteen black University of Wyoming football players off the team, thereby wrecking the team for the season and effectively for the remainder of Eaton's career.  Indeed, recollection wise, that's now what Eaton is remembered for.

In 1969, when the action happened, the student body largely supported Coach Eaton, although the faculty in significant numbers did not.*  Governor Hathaway sought to have Eaton and the players reconcile, followed by a similar action by Federal District Court judge Ewing T. Kerr, which also failed.

Around the state feelings were strongly in support of Eaton, in 1969  Now, the opposite is overwhelmingly true. Some years ago it effectively shifted, symbolized, perhaps, by the fourteen players being featured in a mural in downtown Laramie.  This year, 2019, the players were invited back to speak at the University and the University officially apologized for what had occurred.

But what did occur, and what are the dynamics of it? And does that even matter now.

Much of the story, as the fourteen players have noted, was mythologized right off the bat and their story never managed to get out.  To most Wyomingites in 1969, the height of the period of 60s unrest, the players were demanding to convert their status as UW football players into active protesters for something, with that something having something to do with the Mormon church.  Visions of black radicalism of the period circulated in people's head, such as black athletes raising their fists in the 1968 Mexico City Olympics.  But in reality what the UW football players were seeking didn't go that far at all.

The players did want to protest, in the form of wearing black armbands at the upcoming game with the Brigham Young University Cougars.  Why?

The reason was two fold, both of which had their roots in Mormon religious tenants. While very early on Mormon church did include a small number of black in the priesthood category, following Joseph Smith's death the church under Brigham Young moved away from that.  Young was noted to be strongly opposed to blacks being Mormon priests and the religion came to have a tenant of prohibiting it.  This remained the case in 1969 but it is no longer today, having been changed in the 1970s.

The Mormon's certainly did not condone racial epithets in the 1960s and in fact culturally they emphasize politeness which doesn't tend to be a universally held American quality (note the thread on Syria and New Yorkers).  Be that as it may, where ever there is a racial view held of any type a prejudice that expresses itself will follow, and certainly any living American, even in 2019, has heard such views expressed about some group by people who surprise you when they state it.  The UW football team, with its starting black players, had accordingly endured racial slurs from the BYU students at the games at BYU.

With both of these in mind, the racial slurs and the Mormon policy of excluding blacks from the Mormon priesthood, the black players determined to seek to wear black armbands at the BYU game.

Now, let's stop here for a second as what they were doing is important to note correctly.

They were seeking to wear black armbands.

They were not demanding to do so.

And that's what they went to see Coach Eaton about, their desire to wear black armbands.

Eaton wouldn't give them a hearing, and simply tossed them off the team.

Now, let's go into this a little deeper.

Eaton's action was wrong.  The fourteen players were his players and they deserved a hearing.  He wouldn't give them one, and he wouldn't even reconsider giving them one.  He just flat out fired them, so to speak.  They weren't even given a chance to change their minds, assuming they had them fixed, which they did not.

It destroyed the team, but beyond that, it was deeply unfair.  They were seeking a hearing at that point, that's all.  Being tossed off the team deprived them of their scholarship and put them in distress.  Ten of them managed to graduate from the University of Wyoming, but the difficulties they were then forced into were severe.

But what about the proposed protest?  That's a bit more tricky.

The change in views that has happened over the years would have occurred in any event, and that's how we view this matter today.  Part of that, however, is that the Mormons themselves changed their views and reverted to their original policy of allowing blacks into the Mormon priesthood.  Given this, the underlying difficulties presented by student athletes protesting a religious tenant of a religion that sponsors a university is now basically removed.  Nobody anywhere would feel compelled today to defend the tenant and indeed Mormons themselves do not hold it any longer and, in addition, are undoubtedly embarrassed by the epithets used by the BYU students at the time.

Be that as it may, Eaton was faced with a serious two part question, that being, should he allow a protest that: 1) was directed at voiced racial slurs and 2) protested a tenant of a religion.

That's not an easy question to really answer.  Eaton himself didn't try to really answer it as he simply grossly overreacted and fired all fourteen players.

Starting off, should student athletes be allowed to protest things by using their student athlete status at all?  Most Americans would say yes, but if we stop to think about it, we generally become uncomfortable with the concept.  Most likely, in 2019, most Americans now would still say yes, and indeed such a protest would be regarded, for the most part, as an individual act.

Having said that, the last few years have certainly demonstrated that people don't feel that way universally.  Black football players taking the knee in the NFL have been met with storms of protest by individuals who feel that they should not be able to use their highly paid status in protest.  Indeed, I have to wonder what would occur (assuming that it hasn't occurred) if this occurred in large scale in university games.  I suspect it would be tolerated now, but lots of people would be outraged.  I'm sure there'd be cries for them to forfeit their scholarships just as there seems to be a view that professional football players should not protest on the field with many feeling that they should forfeit their careers if they do.

Focusing in just a bit, however, almost all Americans today would be comfortable with some sort of protest that was aimed at racial exclusion generally.  Many, however, would not be comfortable with protest that have something racial underlying them with specificity.  In spite of what we may think, we've come a long ways in fifty years and blanket racism is no longer really tolerated in the United States. Subtle racism is, but that's a different matter and harder to recognize.  Outsiders have a difficult time, for example, seeing it quite often.  But, to give a really minor example, I suspect that most people wouldn't get too excited about players protesting the use of an Indian mascot team name.  But if players sought to support something like BLM is some definitive way, the opposite is likely true.

And all of this is 2019 when racial protests, in spite of our belief to the contrary, really don't have the same edge that they did in 1969.  In 1969 there were plenty of examples of openly held racism that was publicly voiced all over the country.  And in 1969 the spirit of the times was becoming increasingly radical.  Today we have BLM, of course, but in 1969, the age had the Black Panthers.  That's quite different.

The point is that a team tolerating a protest of this type is hard to imagine in 1969.  It's impossible to imagine in 1959.  It's difficult to imagine in 1979.  So, had the players received a hearing, it's unlikely that any team anywhere would have allowed it.

Beyond that, the aspect of protesting a religious tenant is a really difficult one.  In 69 the black exclusion was a Mormon tenant. By 1979 it would no longer be.  So its all in the past now.  But that doesn't remove the fact that a religious tenant that is unpopular with the population as a whole is still a religious tenant.

In our own times there have been examples of various western societies really reacting to the wearing of female Islamic dress.  I have a hard time grasping why this is controversial, but it very much is among some people who are very willing to voice their opinions.  In Europe this has been particularly controversial with some efforts to preclude it legislatively.  Given that there are no Islamic universities in the US, it's hard to make an analogy to the Black Fourteen in 1969, but would the U.S. Olympic team allow athletes to protest a foreign team that mandated Islamic dress for its athletes and culture?  Probably not.

A better analogy may be the question of what would occur is students at a state school like UW sought to protest religious tenants that apply to women today.  In recent years there's been a culture wide evolution towards allowing women to be ordained as clergy in Christian and Jewish denominations, but this is not universal.  In the Apostolic Churches the opposite is true and there's not only no indication that this will change, but in fact at least in the Catholic Church most theologians regard this question as settled with infallibility.  There is dissent, of course, and therefore its not impossible to imagine female athletes of a state school wearing those pink "kitty hats" (yes, I'm changing their name) when playing against a Catholic university, save for the fact that most American Catholic universities are Catholic in name only.

Many Catholic high schools, are not, however, and you can imagine the controversy in that context.  Would the women volleyball players of Broderdorp Central High be allowed to wear the aforementioned caps if they were playing against Broderdorp Catholic High?  Of course the fact that I'm putting this down at the high school level complicates this a bit further.

Also complicating this example is that anti Catholicism is the last safe prejudice in the United States and perhaps the Western world.  If I changed the example and changed it to a contest between New Wessex High School vs. New Wessex Orthodox Jewish Academy, what occurs?

All this sounds rather unlikely, of course, but probably not as unlikely as it may seem.  Sooner or later one of these examples is going to occur.  And hence the problem faced by Eaton, which he never addressed, in 1969.  No matter how you may feel about it, can you license players on a team protesting a religious tenant?

Now, again, many feel yes.  But the bounds of that are pretty problematic. At some point, something occurs that crosses an uncomfortable threshold.

Indeed, the reverse, or perhaps something analogous, has occurred in recent years.  Locally, a stand out high school wrestler sat the state championships out every year while he was in high school as his religious tenants (he was Mormon) precluded him from wrestling against girls.  Frankly, I highly admire his actions, which many would have not undertaken, and it was not in protest, but it something like this rose to the level of a protest in which those of a religious faith demanded that their views be taken into consideration, then what?

Not exactly of that nature, but close, something like this has been occurring in some schools where women have found themselves competing against men who identify as transgender.  Transgenderism is of course a hot story but no matter what a person feels about it, those who "trans" their gender are genetically their original gender, and in the case of men, they still have the male attributes of strength that men have. This has proven to be a real controversy in female athletics as women have suddenly found themselves grossly outclassed where this has occurred, and some have taken to official protests as a result.**  Women's athletics only very recently have started to reach the same level of prominence that male athletics have had for years, and so this sudden development has been distressing to female athletes rather understandably.

So what should have occurred at UW in 1969?

Bare minimum, Eaton should have heard them out.  By all appearances, they appeared to be fairly reasonable in their views. Chances are that if he could have made a compromise. An obvious one would have been to tell them they couldn't wear the armbands, but nothing could keep them from making a public statement on their own time prior to the game.  If given that option, I suspect they would have taken it.

Easton would have taken heat for that, but its not like he would have lost his position for it.  Probably most people would have supported him at the time, although a surprisingly high number I'm sure would not have, including probably a surprisingly high percentage of the student body at the time.

Of course, Eaton's firing them deprived them of the chance to be voluntary martyrs for their views, which is always the ultimate test for the committed.  I.e, would they have had the courage of their convictions if Eaton had refused them any leeway after hearing them out and giving them a choice.  I suspect they would have.  Ironically however, his actions granted them that status anyhow and the attention they received was likely at least as great as that which they would have received had they carried out the protest while members of the team.  In suffering the sanction for their actions, they remained remarkably dignified and almost uniformly carried on with their educations, which says a lot for them.
________________________________________________________________________________

*Some faculty members stepped in to make up portions of the resulting lost scholarships so the ejected football players could continue on in their educations.

**It's also a very hot topic in feminist circles as one class of feminist reject transgenderism outright on genetic and social grounds, their thought being that their struggle for equality for their gender is damaged by people of another gender seeking to claim that status through chemical and surgical means.

Today In Wyoming's History: October 18, 1969

Today In Wyoming's History: October 18: 1969  The football game between the University of Wyoming and BYU that sparked the protest of the Black 14 occurred.  Wyoming won the game.

Today In Wyoming's History: October 17, 1969. The Black Fourteen and Coach Eaton

On this day in 1969 the turmoil of the year visited Wyoming in a way that still resounds to this day.

Today In Wyoming's History: October 17:

October 1

1969  One of the most memorable events in Wyoming sports and social history occurred when all fourteen black players on the 1969 University of Wyoming football team walked into head coach Lloyd Eaton’s office wearing black armbands.  They hoped to convince Eaton to let them wear the armbands the following day in UW's football game against BYU to protest the Mormon Church’s policy against blacks in the Mormon priesthood. Eaton dismissed them all from the team.  According to the football players involved, they were never allowed to even address Eaton and he simply dismissed them.  The team was undefeated at the time.

The event remains controversial, and the actual events remain somewhat murky.  In recent years the Black 14 have come to have been regarded with increasing sympathy, and in 2019 they were invited back to the University and given their letter jackets.

The event put the University in a terrible spot as the football team was amongst the best ever fielded by the University of Wyoming and Eaton's actions effectively gutted the team.  According to the conventional view, Eaton felt that he could not allow the team to be used as a vehicle for protest.  The black team members felt that they weren't given a chance to voice their views and if their version of events is correct, they were not.  The entire matter ended up in a meeting the following day in which the Governor met with the 14 and the Board of Trustees of the University.  In the end no resolution was arrived upon, Eaton remained coach, and the Board of Trustees voted to support Eaton.

The entire matter ended up in litigation.  Judge Kerr, the Federal Judge presiding over the matter, initiated an effort to have the players and the coach meet on November 10, 1969, at the courthouse.  Coach Eaton agreed but the players did not take him up on this, and there was an objection to the suggestion by their attorney who felt that a meeting would be a poor idea due to Eaton's strong personality.  At least a couple of players later indicated that they were not aware that the offer to meet had been made.  The case, therefore, preceded on into litigation, effectively dooming any chance of an immediate resolution.

The Federal suit went up to the 10th Circuit Court of Appeals twice, the entire matter was fought out after the fortunes of the football team that year had been sealed by the event.  In the first decision, the 10th Circuit states as follows:

443 F.2d 422

Joe Harold WILLIAMS et al., Plaintiffs-Appellants,
v.
Lloyd EATON, as Football Coach of the University of
Wyoming, et al., Defendants-Appellees.

On October 18, 1969, a football game was scheduled in Laramie, Wyoming, between the University of Wyoming (hereafter the University) and Brigham Young University (hereafter BYU). BYU is a university located at Provo, Utah, and is owned and operated by the Church of Jesus Christ of Latter-Day Saints. This controversy involves the complaint of Black athletes at the University against alleged racial policies of the Mormon Church and by athletes playing for BYU. And the case concerns also a 'football coaching rule' of the Wyoming University Coach that football players at the University should not participate in demonstrations or protests. Shortly before the scheduled game with BYU the Black athletes at the University had a disagreement with the Coach about the wearing of the armbands as a protest against alleged Mormon beliefs and alleged acts of BYU players and were dismissed from the team, the dismissal being sustained by the University Trustees. The Black athletes then brought this civil rights suit.

The District Court proceedings and issues on appeal

This case arose as a civil rights action under 28 U.S.C. 1331 and 1343 and 42 U.S.C. 1983 for alleged violations of plaintiffs' Federal constitutional rights by their dismissal from the University football team which plaintiffs allege was due to the wearing of black armbands in protest against the views of the Mormon Church at a meeting the day before the game. The complaint sought interlocutory and permanent injunctive relief, a declaratory judgment and damages. Plaintiffs are fourteen of the Black athletes at the University and the defendants are the football coach, defendant Eaton (hereafter the Coach), the University Athletic Director, the Trustees of the University, its President and the State of Wyoming.  Since we feel that the pleadings are of substantial importance we turn to a discussion of their allegations in detail.

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.

1 Defendants' answer described the football coaching rule of the football coaching staff of the University of Wyoming as one '* * * prohibiting demonstrations or protests by members of the University of Wyoming football team.'

2 On their motion this appeal has been dismissed as to plaintiffs John M. Griffin, Donald K. Meadows and Theodor T. Williams

3 310 F.Supp. at 1350

4 The Eleventh Amendment to the Federal Constitution provides: 'The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects or any Foreign State.'
While one of the plaintiffs was a Wyoming resident, the Amendments as expanded applies to this suit by him, as well as to the remaining plaintiffs, who are non-residents of the State. See Parden v. Terminal Ry. Co., 377 U.S. 184, 186, 84 S.Ct. 1207, 12 L.Ed.2d 233.
Article 1, 8 of the Wyoming Constitution provides:
'8. Courts open to all; suits against state.-- All courts shall be open and every person for an injury done to person, reputation or property shall have justice administered without sale, denial or delay. Suits may be brought against the state in such manner and in such courts as the legislature may by law direct.'

5 1-1018, Wyoming Statutes of 1957, provides: '1-1018. Actions against state agencies deemed actions against state; jurisdiction.-- Any action permitted by law, which shall be brought against Wyoming farm loan board, board of land commissioners, state board of charities and reform, public service commission of Wyoming, state board of equalization of Wyoming, or the trustees of the University of Wyoming 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.'
The Board of Trustees of the University is constituted a body corporate and given numerous powers by 21-352 and 21-353, Wyo. Statutes of 1957. They are empowered to appoint a person to examine and approve payment of all legal claims against the corporation, among other things. However, there is no provision in these statutes authorizing suits against the Trustees. We find no statute dealing with the Coach or the Athletic Director of the University.

6 President Carlson testified that the Coach had said at the meeting with the Trustees the night before the game that he had called the rule against protests and demonstrations to the attention of the team at least three other times in the last year, * * * 'the reason being that he felt that this would have an adverse effect upon team unity, upon their grades, if they were involved in protests and such things as this. This was at spring practice, at the end of spring practice in 1969.' There also was testimony at the hearing on the application for the restraining order by he University President on the football coaching rule which included the statement that 'Coach Eaton said that in order to maintain proper discipline on the football team he had certain rules and regulations, and this was one of them.'
The order of the District Court included findings that '* * * the Board further found that the football coaching rule was imposed for disciplinary purposes looking to the unity of the football team and that the plaintiffs had been well aware and had full knowledge of the existence of the coaching rule * * *' 310 F.Supp. at 1347. We are not persuaded that these statements and findings so established that there was or would have been any material disruption of class work, substantial disorder of invasion of the rights of others as to justify a summary judgment against the plaintiffs. Tinker v. Des Moines School District, supra, 393 U.S. at 513, 89 S.Ct. at 740.

7 As discussed below, the District Court considered matters beyond the pleadings so that the ruling must be viewed as a summary judgment

8 We note also plaintiffs' claim that the football coaching rule was unconstitutional for over-breadth and vagueness. The reason for the plaintiffs' dismissal from the team and the manner of the application of the rule are within the area of factual dispute, although the rule iteslf in broad terms was admitted by the defendants. Until the facts and circumstances surrounding the application of the rule to the plaintiffs are decided and the reasons for their dismissal determined, the claim of impingement on First Amendment rights by general prohibition against protests or demonstrations by the players may not be dismissed as wholly insubstantial. See Sword v. Fox, 317 F.Supp. 1055, 1062-1067 (W.D.Va.), and cases there cited

9  An affidavit submitted for plaintiffs stated that at the time of the meeting with the Trustees the plaintiffs had indicated they thought they were entitled to wear the armbands during the game, but that they had not planned to do so if the Coach refused to permit such action. This affidavit also stated that the plaintiffs had not said they would wear the armbands against the directions of the Coach or the Trustees if returned to the game 

10  Plaintiffs' brief suggests that instead it might be concluded that they were protesting against manifestations of racism that plaintiffs saw in BYU and its football team

The first 10th Circuit decision did not end the matter, and it came back for a second one, in which the court stated:

This appeal is a sequel to our earlier consideration of this controversy involving several Black athletes of the University of Wyoming football team. They were dismissed from the team following a dispute over their intentions to wear black armbands during a football game with Brigham Young University. After their dismissal they sought relief by this civil rights action, claiming violation of First Amendment rights.

In the prior appeal we affirmed in part, sustaining the dismissal of claims against the State of Wyoming and all damage claims, but reversed a summary judgment and dismissal of claims for equitable and declaratory relief as to other defendants, and remanded for further proceedings. 443 F.2d 422. After a trial to the court on these remaining claims for declaratory and injunctive relief, the trial court made findings of fact and conclusions of law in favor of the defendants and dismissed again. 333 F.Supp. 107. Essentially the court upheld the defendants' actions in dismissing the athletes from the team on the ground that the Federal and Wyoming Constitutions mandated complete neutrality on religious matters which would have been violated otherwise by the armband display expressing opposition to religious beliefs of the Church of Jesus Christ of Latter-Day Saints on racial matters.

The general circumstances of the controversy have been set out by the trial court and our earlier opinion and need not be repeated. We feel it important to discuss the facts in detail based on the trial record only in respect to two principal issues which will be treated.1 We believe the controlling issues on this appeal are as follows:

(1) whether findings of fact 14 and 15 made by the trial court, dealing with the purpose of the athletes in seeking to wear the armbands and the position they took thereon, are clearly erroneous;

(2) whether the determination by the Board of Trustees of the University refusing to permit the athletes to wear the armbands on the field during the game was a reasonable and lawful ruling or regulation under the principles of Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731, and similar cases.

We do not treat certain additional propositions forcefully argued for the athletes on this appeal. Arguments are made that the football coaching rule against participation generally by the athletes in demonstrations was invalid. However, we feel that questions concerning the rule need not be decided. The original dismissal of the athletes by Coach Eaton for violation of the rule was not the end of the matter. Later the controversy was considered by the Trustees and President Carlson at a conference with the athletes and the athletic officials. It was found by the trial court that the decision of the Trustees to sustain the dismissal of the athletes was made after this conference during which the athletes insisted on the right to wear the armbands during the game. And it was further found that the Trustees' decision was made on the ground that permitting the wearing of the armbands would be in violation of the constitutional mandate requiring complete neutrality on religion.2 Therefore our decision focuses on the lawfulness of the Trustees' action.

Findings 14 and 15 and the purpose of the athletes in seeking to wear the armbands

The plaintiffs challenge findings 14 and 15 of the trial court, arguing that they are clearly erroneous under the test of United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746.3

The plaintiffs first challenge the portion of finding 14 that there is no merit in the contention that one of the purposes of the armband display was protesting against "cheap shots" and name-calling by members of the Brigham Young team. There was testimony by plaintiffs Williams and Hamilton that they were protesting against such conduct by the BYU team; Governor Hathaway and defendants Carlson and Hollon also said the plaintiffs did complain at the meeting with the Trustees about such conduct of the BYU players. However, plaintiffs Williams and Hamilton also said that at various meetings they were protesting against racial policies, Williams referring to such policies of BYU and Hamilton to those of the Mormon Church. And there was testimony by several defendants that centered on the demand of the athletes to wear the armbands in the game to protest views of the Mormon Church. Viewing the record as a whole we cannot agree with this challenge to the findings.

The plaintiffs also say that there was error in the portion of finding 14 that all of the plaintiffs refused to play against Brigham Young University unless they could wear the armbands. And they argue also that finding 15 was in error in stating that all of the plaintiffs refused to play again for the University if defendant Eaton remained as coach. They say the proof fails to establish these facts as to all of the individual plaintiffs and that there was contrary proof. The evidence was in conflict. There was, however, testimony by Governor Hathaway and President Carlson about the discussions and conduct of the plaintiffs at the meeting which Governor Hathaway and President Carlson had separately with them which supports these findings. Defendant Pence's testimony also supports these findings.

The plaintiffs contend that we must make our own examination of the record and that we are not at liberty to accept the findings on such constitutional issues merely because we consider them not clearly erroneous. They rely on Guzick v. Drebus, 431 F.2d 594, 599 (6th Cir.), cert. denied, 401 U.S. 948, 91 S.Ct. 941, 28 L.Ed.2d 231. We are required of course to consider the record ourselves when findings of fact of the trial court are challenged. However, we have not treated findings made in cases involving constitutional rights differently from those in other civil cases. See e. g., Keyes v. School District No. 1, Denver, Colorado, 445 F.2d 990, 999, 1000 (10th Cir.), cert. granted, 404 U.S. 1036, 92 S.Ct. 707, 30 L.Ed.2d 728; Linebarger v. State of Oklahoma, 404 F.2d 1092 (10th Cir.), cert. denied, 394 U.S. 938, 89 S.Ct. 1218, 22 L.Ed.2d 470; Caldwell v. United States, 435 F.2d 1079 (10th Cir.); Brown v. Crouse, 425 F.2d 305 (10th Cir.); Carpenter v. Crouse, 389 F.2d 53 (10th Cir.).4

We believe that the test of Rule 52, F.R.Civ.P., applies here. "The question for the appellate court under Rule 52(a) is not whether it would have made the findings the trial court did, but whether 'on the entire evidence [it] is left with the definite and firm conviction that a mistake has been committed."' Zenith Corp. v. Hazeltine, 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L. Ed.2d 129. The weighing of the conflicting evidence and the credibility of witnesses was for the trial court, and its findings will not be disturbed unless they are clearly erroneous. Rule 52(a) F.R.Civ.P.; Linebarger v. State of Oklahoma, supra at 1094, 89 S.Ct. 1218. We are satisfied that the record supports the challenged findings and that they are not clearly erroneous.

First Amendment principles under Tinker v. Des Moines Independent School District

Both plaintiffs and defendants rely on the principles stated in the Tinker case and similar decisions. The plaintiffs argue that they come within its bounds of freedom of expression recognized therein as applying to students in different places, including the playing field. 393 U.S. at 512, 513, 89 S.Ct. 733. On the other hand the defendants say that their actions were within the exceptions stated in the opinion. We feel the controlling guidelines from the Tinker case are the following:

"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 opinion, 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. * * * 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 class work or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. * * *"

". . . The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom." [citations omitted]

393 U.S. at 512, 513, 89 S.Ct. at 740.

The trial court concluded that had the defendants, as governing officials of the University of Wyoming, permitted display of the armbands, their actions would have been violative of the First Amendment establishment clause and its requirement of neutrality on expressions relating to religion, citing School District of Abington v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844, and similar cases. The Court further grounded its conclusions on the provisions of the Wyoming Constitution guaranteeing the free exercise and enjoyment of religion and worship without discrimination or preference.

". . . The government is neutral, and, while protecting all [religious opinions and sects], it prefers none, and it disparages none." Id. at 215, 83 S.Ct. at 1567. Thus stemming from state and federal law there is strong support for a policy restricting hostile expressions against religious beliefs of others by representatives of a state or its agencies. We feel that the Trustees' decision was a proper means of respecting the rights of others in their beliefs, in accordance with this policy of religious neutrality.

The plaintiffs vigorously deny that there would have been state action or a violation of the First Amendment principles on religion by permitting the armband display. Without deciding whether approval of the armband display would have involved state action or a violation of the religion clauses, we are persuaded that the Trustees' decision was lawful within the limitations of the Tinker case itself. Their decision protected against invasion of the rights of others by avoiding a hostile expression to them by some members of the University team. It was in furtherance of the policy of religious neutrality by the State. It denied only the request for the armband display by some members of the team, on the field and during the game. In these limited circumstances we conclude that the Trustees' decision was in conformity with the Tinker case and did not violate the First Amendment right of expression of the plaintiffs. See Sword v. Fox, 446 F.2d 1091, 1097, 1098 (4th Cir.), cert. denied, 404 U.S. 994, 92 S.Ct. 534, 30 L.Ed.2d 547.

We do not base our holding on the presence of any violence or disruption. There was no showing or finding to that effect and the trial court's conclusions of law state that the denial of the right to wear the armbands during the game ". . . was not predicated upon the likelihood of disruption, although such a demonstration might have tended to create disruption." Instead the trial court referred only to the mandate of complete neutrality in religion and religious matters as the basis for the court's ruling.

We hold that the trial court's findings and this record sustain the Trustees' decision as lawful, made for the reasons found by the trial court, as a reasonable regulation of expression under the limited circumstances involved, in accord with the principles of the Tinker case on free speech.

Affirmed.

1  There is substantial discussion by both briefs on the question whether the plaintiffs would, in any event, be barred from reinstatement to the team by rules of the NCAA and the Western Athletic Conference. This question need not be decided in view of the conclusions we reach

2  This conference was attended personally by the Governor, President Carlson and several Trustees. Except for two Trustees who were unavailable, the remaining Trustees participated by a telephone conference call arrangement which permitted them to hear the discussions and to express their views. At different times the plaintiffs, and also the Coach and the Athletic Director, discussed the matter with the Board. There is no claim by the plaintiffs that there was a denial of procedural due process in the various proceedings by the University officials or the Trustees

3  Findings of fact 14 and 15 were as follows: "14. That taking all of the evidence and facts adduced by the parties into consideration, the Court finds that there is no merit in the contention raised by the Plaintiffs in their complaint filed herein that one of the purposes of the black armband display was that of protesting against the alleged cheap shots and name-calling charged to members of the Brigham Young University football team; on the contrary, the Court finds that such allegation is without merit and that the sole and only purpose in the armband display was that of protesting against alleged religious beliefs of the Church of Jesus Christ of Latter-Day Saints, commonly known as the Mormon Church, and Brigham Young University, which the Plaintiffs considered one and the same, and the Court further finds that each of the Plaintiff football players refused to participate in the football game with Brigham Young University as members of the football team of the University of Wyoming unless they were permitted to demonstrate against the religious beliefs of the Mormon Church by wearing black armbands upon the playing field.
"15. That, taking all of the evidence and facts adduced by the parties into consideration, the Court finds that each of the Plaintiffs refused to play football as a member of the University of Wyoming football team unless and until the Defendant, Lloyd Eaton, was removed from his position as Head Football Coach of the Universty of Wyoming."

4  In some cases the Supreme Court has, of course, reviewed the record where constitutional rights were involved, reaching a conclusion different from that of a state court where there was compelling evidence of a constitutional wrong. See Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697; Blackburn v. Alabama, 361 U.S. 199, 209, 80 S.Ct. 274, 4 L.Ed.2d 242. We cannot agree that such cases indicate that we should depart from Rule 52 standards in reviewing findings on a record such as this.

While UW's football fortunes declined after this event, amazingly the Cowboys defeated the Cougars on October 18, 1969, in spite of the walkout.  Eaton resigned as coach in 1971, after a series of defeats dating back to the 1969 event.  Ten of the Fourteen graduated from university.  Four went on to play in the National Football League.  One became a prominent educational figure in Casper.  The Mormon church changed its doctrine on this issue in 1978.

Some Gave All: The Black 14, University of Wyoming, Laramie Wyoming

Some Gave All: The Black 14, University of Wyoming, Laramie Wyoming

This is a monument to The Black 14 in the University of Wyoming's Student Union.

The Black 14 were fourteen University of Wyoming football players who, in 1969, wanted to wear black armbands during the University of Wyoming v. Brigham Young football game. The action was intended to protest the policy of the Mormon church in excluding blacks from leadership roles in their church.  Coach Eaton, the UW football coach at the time, dismissed all fourteen players prior to the game, ending their football careers at UW and, at least in some cases, simply ending them entirely.

 

The event was controversial at the time, and to a lesser degree, has remained so.  Generally, in most of Wyoming, Coach Eaton was supported, rather than the players, which doesn't mean that the players did not have support.  As time has gone on, however, views have changed and generally the players are regarded as heroes for their stand.  Views on Eaton are qualified, with some feeling he was in the wrong, and others feeling that he was between a rock and a hard place and acted as best as

he could, even if that was not for the best.

It is indeed possible even now to see both sides of the dramatic event.  The players wanted to wear black armbands in protest of the Mormon's policy of not allowing blacks to be admitted to the Mormon priesthood and therefore also excluding them from positions of leadership in the Mormon church.  This policy was well know in much of Wyoming as the Mormon theology behind it, which held that blacks were descendant of an unnatural union on the part of Noah's son Cain, resulted in black human beings.  This was unlikely to be widely known, however, amongst blacks at the University of Wyoming, most of whom (but not all of which) came from outside of the state.  A week or so prior to the UW v. BYU game, however, Willie Black, a black doctoral candidate at UW who was not on the football team, learned of the policy.  Black was head of the Black Students Alliance and called for a protest.  The plan to wear armbands then developed.

The protest, therefore, came in the context of a civil rights vs. religious concepts background, a tough matter in any context.  To make worse, it also came during the late 60s which was a time of protest, and there had been one against the Vietnam War just days prior to the scheduled game. Following that, Eaton reminded his players of UW's policy against student athletes participating in any demonstration, a policy which raises its own civil liberties concern. The players went ahead with their plans and Eaton removed all of them from the team.

Looked at now, it remains easy to see why Eaton felt that he had to act, while also feeling that he acted much too harshly.  Not everyone agrees with this view by any means, however.  Many, but a declining number, still feel Eaton was right.  A much larger number feel he was definitely wrong.  Few hold a nuanced view like I've expressed.  Even those who felt that Eaton was right often admire the protesting players, however. 

Anyway its looked at, the Black 14 are now a definite part of Wyoming's legacy as The Equality State, even if most of them were not from here (at least one, and maybe more, were).  This year at Wyoming History Day, a statewide high school history presentation competition, which had the theme of "taking a stand", they were the subject of one static display and two video presentations.  They may be more well remembered now than at any time since the late 1970s, and this memorial in the student union certainly contributes to that.